March 4, 2015

Homeowners-association-attorney-fee, appealability-of-compassionate-release-denial opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two opinions.

In Tract 19051 Homeowners Association v. Kemp, the court will decide whether a prevailing homeowner is entitled to attorney fees under Civil Code section 1354 in an action by a homeowners association to enforce its governing documents as those of a common interest development when the homeowner prevailed because it was later determined that the subdivision was not such a development and its governing documents had not been properly reenacted.

The court directed the parties to address these issues in People v. Loper:  (1) Is a trial court’s order denying the recall of a sentence under section 1170, subdivision (e), appealable?  (2) Assuming such an order is appealable, what is the proper standard of review on appeal?  (3) Was the trial court’s order denying the recall of defendant’s sentence correct in this case?
Two weeks before the oral argument, the court limited the argument to whether the trial court’s denial of compassionate release under Penal Code section 1170, subdivision (e), is an appealable order.

Loper was argued on the court’s January calendar.  Argument in Tract 19051 was only four weeks ago.

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



March 2, 2015

Summary of February 25, 2015 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, February 25, 2015. 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

Laffitte v. Robert Half International (Brennan), S222996—Review Granted—February 25, 2015.

The question presented is whether Serrano v. Priest (1977) 20 Cal.3d 25, permits a trial court to anchor its calculation of a reasonable attorneys’ fees award in a class action on a percentage of the common fund recovered?

In a class action, a member of the plaintiff class objected to the settlement, appealing both the order approving the settlement and the final judgment. The defendant challenged both the settlement notice regarding the award of attorneys’ fees and the amount of attorneys’ fees awarded.

The Court of Appeal, Second District, Division Seven, held in a published opinion, Laffitte v. Robert Half International (2014) 231 Cal.App.4th 860, that, as a general rule, while the lodestar method is the primary method for calculating attorneys’ fees, the percentage approach may be proper where, as here, there is a common fund. The percentage of fund method survives in California class action cases, and the trial court did not abuse its discretion in using it, in part, to approve the fee request in this case. Contrary to plaintiff’s assertion, the trial court’s use of 33 1/3 percent of the common fund as a benchmark is consistent with, and in the range of, awards in other class actions. The Court of Appeal held it therefore is appropriate for the trial court to cross-check an award of attorneys’ fees calculated by one method against an award calculated by the other method to confirm whether the award is reasonable.

First California Bank v. McDonald, S222858—Review Granted & Held—February 25, 2015.

The court ordered briefing deferred pending decision in Coker v. JP Morgan Chase Bank, N.A., S213137, which presents the following questions: (1) Do the anti-deficiency protections in Code of Civil Procedure section 580(b) apply to a borrower who engages in a “short sale” of real property when the lender approved the sale and re-conveyed its deed of trust to facilitate the sale on the condition that the borrower remain liable for any outstanding balance on the loan following the sale? (2) Does a borrower’s request that the creditor release its security interest in real property to facilitate a short sale result in a waiver of the protection of the “security first” rule set forth in Code of Civil Procedure section 726?

The plaintiff bank filed a judicial foreclosure action to collect a loan secured by two parcels of real estate. After the loan went into default, both parties agreed to a private sale of one of the parcels that was the borrower’s separate property. Plaintiff then filed this action to foreclose on the remaining parcel and obtain a deficiency judgment.

The Court of Appeal, Fifth District, held in a published opinion, First California Bank v. McDonald (2014) 231 Cal.App.4th 550, that to obtain a deficiency judgment, all real property collateral must be exhausted in one single action for judicial foreclosure. If any of the real property collateral is exhausted through any other means, such as a private sale without the consent of the debtors, a deficiency judgment is barred. Because plaintiff failed to follow the requirements of section 726 by disposing of the property outside of judicial foreclosure and without the defendants’ consent or waiver, plaintiff waived any right to a deficiency against defendants.

Review Denied (with dissenting justices)




March 2, 2015

Three opinions, two rehearing possibilities

The Supreme Court issued three new opinions this morning, and two of them are candidates for rehearing.  It is noteworthy that these opinions are the last that recently retired Justice Marvin Baxter will sign (he authored two of them).  Moreover, Justice Baxter’s retirement is a reason why the chances for rehearing are better than normal in two of the cases.  In those two,  Justice Baxter and a pro tem Court of Appeal justice are in the majority of 5-2 decisions, and new Justices Mariano-Florentino Cuéllar and Leondra Kruger, rather than Justice Baxter and a pro tem, will vote on any rehearing petition.  An important caveat:  saying that the chances for rehearing are better than normal is not going too far out on a limb when you remember that “normal” rehearing chances are considerably less than one percent.

In People v. Mosley, a 5-2 court holds that, under Apprendi v. New Jersey (2000) 530 U.S. 466, a judge without a jury can make the required “findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender” even if that order “includes registered sex offender residency restrictions imposed by Proposition 83, the Sexual Predator Punishment and Control Act: Jessica’s Law.”  The majority opinion, authored by Justice Baxter, reverses the Fourth District, Division Three, on that issue.  Justice Goodwin Liu, joined by Justice Kathryn Werdegar, issues a concurring and dissenting opinion asserting that the imposition of the residency restriction “required a determination of facts that historically lay within the jury’s domain” and that the restriction “is a penalty that exceeds what the jury’s verdict in this case permits.”  Justice Liu also criticizes what he calls the majority’s “highly unorthodox” approach of deciding the Apprendi issue even though the Attorney General argued that the residency restriction did not apply to the defendant in this case.  Instead of the more traditional rule of avoiding constitutional issues when it’s possible to do so, the majority, according to Justice Liu, “invents a doctrine of statutory avoidance:  It avoids an issue of statutory interpretation in order to resolve the case on constitutional grounds.”

The other 5-2 decision is in Berkeley Hillside Preservation v. City of Berkeley.  In an opinion by Justice Ming Chin, the court holds that the First District, Division Four, erred in concluding that a project was not exempt from environmental review.  The City of Berkeley had relied on two categorical exemptions established by the Secretary of the Natural Resources Agency, but the Court of Appeal found applicable an exception to those exemptions.  As in Mosley, Justice Liu, joined by Justice Werdegar, writes separately.  His is a concurring opinion — he agrees with the majority that the matter should be remanded, but he disagrees with the court’s interpretation of the exception to the categorical exemptions.  Plaintiffs’ attorney Susan Brandt-Hawley tells us that plaintiffs have already decided to petition for rehearing.

The third opinion is unanimous and, like Mosley, it concerns the Jessica’s Law residency restriction for registered sex offenders.  Justice Baxter’s opinion for the court in In re Taylor affirms the Fourth District, Division One, in holding that the residency restriction is unconstitutional as applied to the petitioners in the case and to those “similarly situated registered sex offenders on parole in San Diego County.”  The court concludes that the restriction fails the deferential “rational relationship” test:  “Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety.”

February 27, 2015

CEQA; sex offender registration, residency-restriction opinions filing Monday

As expected, the Supreme Court will file opinions on Monday in the last three undecided cases from the December calendar.  These will be the last opinions signed by now-retired Justice Marvin Baxter.

In Berkeley Hillside Preservation v. City of Berkeley, the court will decide whether the City of Berkeley properly concluded that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions.

People v. Mosley presents this question:  Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living “within 2000 feet of any public or private school, or park where children regularly gather” (Pen. Code, § 3003.5, subd. (b)), increase the “penalty” for the offense within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466, and require that the facts supporting the trial court’s imposition of the registration requirement be found true by a jury beyond a reasonable doubt?
In March 2011 (yes, 2011; the court granted review more than four years ago), the court directed the parties to also brief these issues:  (1) Does Penal Code section 3003.5, subdivision (b), validly create a misdemeanor offense subject to violation by all persons required to register for life pursuant to Penal Code section 290 et seq., regardless of their parole status?, (2) If Penal Code section 3003.5, subdivision (b), is not separately enforceable as a misdemeanor offense, does that section nevertheless operate to establish the residency restrictions contained therein as a valid condition of sex offender registration pursuant to Penal Code section 290 et seq.?

In re Taylor asks whether the residency restriction of Penal Code section 3003.5, subdivision (b), when enforced as a mandatory parole condition against registered sex offenders paroled to San Diego County, constitutes an unreasonable statutory parole condition that infringes on their constitutional rights.  (See In re E.J. (2010) 47 Cal.4th 1258, 1282, fn. 10.)

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

February 26, 2015

Supreme Court affirms death judgment, leaves open possible vicarious liability against CHP

The Supreme Court filed two opinions this morning, one a review of a Court of Appeal writ decision and one a decision of an automatic direct appeal of a judgment of death.

In State of California v. Superior Court, the court held that the statutes establishing the Freeway Service Patrol, under which motorists receive free emergency roadside assistance and which is partly administered by the California Highway Patrol, “are incompatible with a special employment relationship between CHP and tow truck drivers.”  The plaintiffs in the case relied on the statutes in an attempt to hold CHP vicariously liable for an FSP tow truck driver’s negligence in an accident.  In rejecting the plaintiffs’ reliance on the statutes, the court agreed with the Court of Appeal, Fourth District, Division Three, but it nonetheless reversed the Court of Appeal’s decision that had directed entry of summary judgment.  The court’s opinion, authored by Justice Carol Corrigan, concluded that, although the FSP statutes do not per se establish vicarious liability against the CHP, there remains “the possibility that CHP might act as a special employer if it takes on responsibilities beyond those outlined in the FSP statutes” when the CHP “make[s] its own agreements with tow service providers.”  Justice Kathryn Werdegar concurred, but disagrees with the majority’s conclusions about “whether the Legislature had in mind potential exposure to vicarious liability under common law employment principles when it established the freeway service patrol program.”

The court affirmed the death judgment in People v. Johnson, but it does so in a 5-2 decision.  The point of disagreement is about the conviction for, and special circumstances finding of, carjacking when the victim was killed during a home invasion robbery.  The majority, in an opinion authored by Justice Ming Chin, affirms, but Justice Werdegar’s dissent — signed by Justice Goodwin Liu — disagrees, concluding that the carjacking statute’s “language and history” don’t support the conviction or finding.  The dissenters state, “The proposition that a person baking in her kitchen can be carjacked should prompt quizzical looks.”  The majority dismisses the objections, holding that, although it “might not be a classic carjacking,” the defendant’s conduct satisfied “all of the statutory elements of carjacking.”  It also found unconvincing the dissenters’ legislative history argument:  “Committee reports, often drafted by unelected staffers, cannot alter a statute’s plain language.”

The Johnson majority included now-retired Justice Marvin Baxter and a pro tem Court of Appeal justice.  New Justices Mariano-Florentino Cuéllar and Leondra Kruger could cause a rehearing if they vote with Justices Werdegar and Liu, but we’re hesitant to issue another rehearing alert on this case.  It is unclear from the opinion whether a reversal of the carjacking conviction and special circumstances finding would necessarily require a reversal of the death judgment.  There are other special circumstances findings that no justice voted to reverse and the majority did not address the defendant’s arguments “concerning the consequences of any insufficiency in the evidence” of carjacking.


February 25, 2015

Vicarious liability, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two opinions.  In State of California v. Superior Court, the court will address whether the California Highway Patrol can be considered the special employer of a tow truck driver participating in the Freeway Service Program.  In People v. Johnson, the court will decide an automatic appeal from a November 2000 judgment of death.

Both cases were argued on the court’s December calendar.  After tomorrow, there will still be three cases left from that calendar without opinions, and only one regular filing day within the 90-day period.  Look for opinions in those three matters — Berkeley Hillside Preservation v. City of Berkeley, People v. Mosley, and In re Taylor — to file this coming Monday morning.

The State of California and Johnson opinions can be viewed tomorrow starting at 10:00 a.m.

February 23, 2015

Requesting the Ninth Circuit to request, not certify

Last week, the Ninth Circuit requested the California Supreme Court’s help on some state law issues.  Actually, the Court of Appeals didn’t request help, but rather certified questions to the Supreme Court.  That’s the problem.  “Certification” is so 12 years ago, as we’ve mentioned before.

California added a rule in 1998 authorizing the Supreme Court to answer questions of California law at the request of the United States Supreme Court, a United States Court of Appeals, or a state, territory, or commonwealth court of last resort.  The rule called for the requesting court to “certify” questions.  The terminology changed in 2003.  Certification was abandoned in favor of simply having a court “request” the Supreme Court to “decide a question of California law.”  That’s still the way the rule reads today.

The Judicial Council’s Appellate Advisory Committee noted the reason for the change.  In its comment to the rule revision, the committee called certification “an unnecessary formalism” and it explained, “The ‘certification’ requirement apparently served the purpose of guaranteeing that the request was authentic.  But the same purpose is served equally well by the more fundamental requirement — imposed by both the former and revised rules — that the request must be presented to the Supreme Court by a formal order of the requesting court. . . .  Such an order is manifestly a sufficient guarantee of authenticity.”

The Ninth Circuit doesn’t always grasp the nuances of the Supreme Court rules.  Will the Ninth Circuit stop certifying questions and just request answers instead?  It’s not too much to ask.

February 21, 2015

Summary of February 18, 2015 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, February 18, 2015. 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


Review Denied (with dissenting justices)



In re Walgreens Overtime Cases, S223001—Depublished Court of Appeal Opinion—February 18, 2015

Plaintiff brought a class action against Walgreens alleging that the drugstore chain failed to “ensure” that its employees took their meal breaks. The trial court denied plaintiff’s motion for class certification.  In so ruling, the trial court correctly predicted the Supreme Court’s later holding in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1017, 1034-1041 (Brinker), and held it is sufficient for an employer to make such breaks available to employees.

The trial court denied the motion for class certification for several reasons.  First, plaintiff’s expert’s opinions were based on a legal standard rejected in Brinker. Second, Walgreens’s corporate e-mails contradicted plaintiffs’ assertion that Walgreens employees were forced to miss meal breaks on a class-wide basis.  Third, the court denied the motion because the 44 form declarations of Walgreens employees, which plaintiff’s counsel submitted in support of their class certification motion, were unreliable.  Most of the declarants recanted their declarations in whole or in part during their depositions.  The trial court found the declarations “ ‘appall[ing]’ ” and was “‘especially troubled’” that so many witnesses had recanted.

In a published opinion, In re Walgreens Overtime Cases (2014) 231 Cal.App.4th 237, the Court of Appeal, Second District, Division One, affirmed.  It  held Walgreens’s meal break policy complied with the “make available” standard enunciated in Brinker.  The Court of Appeal also agreed with the trial court’s rejection of plaintiff’s reliance on the expert witness declaration and on Walgreens’s corporate e-mails.

The Court of Appeal upheld the trial court’s rejection of the many form declarations offered by plaintiff’s counsel, noting “[t]he prevalence of falsity in the declarations raised questions about how [plaintiff’s] lawyers had created these declarations in the first place.”  The court described in some detail how plaintiff’s counsel had disregarded Walgreens employees’ answers to their questions, instead sending them declarations that served plaintiff’s counsel’s purposes, and how those employees then signed the declarations without reading them, only to recant when confronted with the declarations in deposition.  The Court of Appeal then observed:

Form declarations present a problem.  When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are.  [¶]  There is nothing attractive about submitting form declarations contrary to the witnesses’ actual testimony.  This practice corrupts the pursuit of truth.  [¶]  It was not error for the trial court to give these unreliable declarations no weight.

(Emphasis added.)

The Supreme Court ordered the opinion depublished.

(Full disclosure:  Last fall, Horvitz & Levy LLP successfully requested publication of the Court of Appeal’s opinion.)

February 20, 2015

Just when you thought you had a great petition for review

We’ve blogged many a time about petitions for review, touching on factors that push a case onto the “A” list, and reasons why a justice might issue a “record vote” or “protest vote” in a case that a majority of justices do not vote to take up.  Sometimes, despite the statistically dismal odds for getting review granted (roughly 6% in civil cases), it seems the stars are really aligned for the court to address an issue that has been knocking at its door for a while.  But it’s good to remember that you just never can tell.  Below is yesterday’s post from Curt Cutting on our firm’s punitive damages blog ( illustrating the point:

I thought Izell v. Union Carbide was going to be the case in which the Supreme Court of California finally resolved the longstanding split in authority in California.

The case was perfectly teed up for the Supreme Court to decide what an appellate court should do with a punitive damages award when the court sharply reduces the amount compensatory damages on appeal.  Some courts have held that a retrial of punitive damages is necessary.  Other courts have said that the punitive damages should be reduced to preserve the same ratio as the jury’s original award.  But the Izell court held that no action was required, because the punitive damages in that case were not constitutionally excessive when compared to the reduced amount of compensatory damages.

Izell had all the hallmarks of a great vehicle for Supreme Court review: a published opinion with a dissent, a recurring issue that has generated a split of authority, hundreds of millions of dollars riding on the outcome of the issue, and lots of parties writing the Supreme Court to support review.  Despite the long odds against review, I said here that the chances of review in Izell were high.

The Supreme Court denied review yesterday.  The docket doesn’t indicate a single vote in favor of the petition.  Go figure.

[Disclosure:  our firm filed an amicus letter in support of the petition for review in Izell.]

February 19, 2015

“California court revives DNA collection from felony arrestees”

Jeremy White reports in the Sacramento Bee about the Supreme Court’s grant of review yesterday in People v. Buza, where the Court of Appeal held that a state law requiring DNA samples be taken from those arrested for felonies violates the state constitution.  The article says that the now depublished Court of Appeal opinion had stopped many law enforcement agencies from taking DNA samples of arrestees.

We noted some time ago that review was likely in Buza because the court had granted review in the case once before and because the court has before it another DNA-collection case — People v. Lowe.  Party briefing in Lowe is almost complete.  The only surprise about yesterday’s court order in Buza is that it appears to be a straight grant rather than a grant-and-hold pending the disposition of Lowe.

February 19, 2015

Ninth Circuit asks Supreme Court to answer employment law questions [UPDATED]

The Ninth Circuit today requested that the Supreme Court decide three questions of California employment law.  In Mendoza v. Nordstrom, Inc., the Court of Appeals asked these questions:  (1) California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”  Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?  (2) California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”  (Emphasis added.)  Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?  (3) California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.”  What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

The Ninth Circuit explained why it wants the Supreme Court’s help:  “no controlling California precedent answers any of the certified questions of statutory interpretation,” and, “because the questions that we certify are of extreme importance to tens of thousands of employees in California, considerations of comity and federalism suggest that the court of last resort in California, rather than our court, should have the opportunity to answer the questions in the first instance.”

By our count, it’s been a year since the Ninth Circuit last requested that the Supreme Court decide a question of California law.  It might be around the middle of April — give or take — when we learn whether the court will agree to answer the Mendoza questions.  The odds are generally better than even that it will.  Additionally, in the last few years, the court has twice granted Ninth Circuit requests for decisions of employment law issues specifically.  (Here and here.)

[February 24 update:  The Supreme Court has now docketed the Ninth Circuit’s request.]


February 19, 2015

In statutory construction decision, Supreme Court rules media are entitled to see citations issued to long-term health care facilities

The Supreme Court today held that a news organization can obtain copies of all citations issued by the Department of Public Health to state-owned long-term health care facilities that the organization was investigating for mistreatment of mentally ill and developmentally disabled persons, subject to redaction of patient or resident names.  The opinion — in State Department of Public Health v. Superior Court — was unanimous and authored by Justice Goodwin Liu.  The court reverses the Third District Court of Appeal.

The court’s opinion is about statutory interpretation, specifically addressing a conflict between the Long-Term Care, Health, Safety, and Security Act of 1973 and a provision in the Lanterman-Petris-Short Act.  Actually, the main issue was whether there is a conflict or whether the statutes can be harmonized.  The court concluded there is a conflict and applied the rule of the Long-Term Care Act because it is  “both the more specific and the later-enacted statute.”  The statutes could not be harmonized, as the Court of Appeal had attempted.  The Supreme Court stated, “the requirement that courts harmonize potentially inconsistent statutes when possible is not a license to redraft the statutes to strike a compromise that the Legislature did not reach.”


February 18, 2015

Supreme Court will not reconsider constitutionality of MICRA damage cap

We identified Hughes v. Pham as a possible early test of the “new” Supreme Court, noting it would be momentous if the court converted that grant-and-hold case into a case to decide on the merits the constitutionality of Civil Code section 3333.2 — the limit on noneconomic damages in healthcare professional negligence cases enacted as part of the 1975 Medical Injury Compensation Reform Act (MICRA).  That’s not going to happen.

The court today took the kind of action it does with almost all grant-and-holds — it took the case off its docket without issuing an opinion.  The Hughes appeal has been transferred back to the Court of Appeal “for reconsideration in light of the decision in Rashidi v. Moser (2014) 60 Cal.4th 718.”

Occasionally, the Supreme Court will un-hold a grant-and-hold, and there was reason to think that could happen with Hughes.  Three years ago, the court denied review in a case raising the constitutionality of the MICRA damage cap, but Justices Kathryn Werdegar and Goodwin Liu recorded votes to grant review.  If new Justices Mariano-Florentino Cuéllar and Leondra Kruger had joined Justices Werdegar and Liu to un-hold Hughes, the constitutional issue would have been front and center on the court’s docket.  However, the transfer order was unanimous; not even Justices Werdegar and Liu wanted to address the issue, at least not in this case.

February 18, 2015

Public Records Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in State Department of Public Health v. Superior Court.  That case, which was argued on the court’s December calendar, raises this issue:  In the context of a request under the Public Records Act (Gov. Code, § 6250) for citations issued by the Department of Public Health to state facilities housing the mentally ill and the developmentally disabled, can the public accessibility provisions for citations issued under the Long-Term Care Act (Health & Saf. Code, § 1417 et seq.) be reconciled with the confidentiality provisions of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) and the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.), and, if so, how?

This is the first opinion in the cases that were argued in December.  Under the 90-day rule, the court has three more regular filing days after tomorrow to issue opinions in the remaining five cases.

The State Department of Public Health opinion can be viewed tomorrow starting at 10:00 a.m.

February 17, 2015

“Sex crime ruling a tough test for Brown’s high court appointees”

Bob Egelko writes in the San Francisco Chronicle that “[t]he first signs of where [new Justices Mariano-Florentino Cuéllar and Leondra Kruger] stand, and how they approach their jobs, could come soon in a case on the sensitive issues of sex offenders and historic homophobia.”  He is referring to the opinion in Johnson v. California Department of Justice, a 5-2 decision in which we issued a rehearing alert when the opinion was filed three weeks ago.

Other “signs” could come in Cuéllar and Kruger’s votes in Hughes v. Pham, People v. Grimes, and People v. Scott.  In any one of those cases, Cuéllar and Kruger could indicate a willingness to change the Supreme Court’s course or, in Johnson, to return the court to a recently changed course.

Egelko’s article cites two law professors as skeptical that the new justices would be willing to shake things up, but the article also quotes former Justice Joseph Grodin, who knows first-hand about changes made by new justices, as having a different view:  “What I was told when I got on the court was, it’s not a great idea to have a precedent established by (retiring) justices who are not going to be there, if the new justices have a different idea.”  Grodin said that new justices should not feel constrained from voting for a rehearing, which is what could happen in Grimes and Johnson:  “the argument for adhering to what is really a tentative decision is not really substantial.”

February 13, 2015

Summary of February 11, 2015 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, February 11, 2015. 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

John v. Superior Court, S222726—Review Granted —February 11, 2015

The question presented is whether a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) must obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment. In a published opinion, John v. Superior Court (2014) 231 Cal.App.4th 347, the Court of Appeal, Second District, Division Seven, held the defendant vexatious litigant was entitled to continue the defense of her landlord’s unlawful detainer action by filing two related appeals, and was not required to seek leave of court before doing so.

The court rejected the Los Angeles Superior Court appellate division’s contrary construction of section 391.7 because: (a) it disregarded the statute’s express reference to actions by a plaintiff; and (b) it would impair a self-represented defendant’s right of access to the appellate courts without significantly advancing the underlying purpose of the vexatious litigant statutes. Accordingly, the court granted the defendant’s petition for a writ of mandate, ordered the appellate division to vacate its order dismissing the defendant’s appeals, and directed that the appeals be decided on their merits.

Beckering v. Shell Oil, S223526—Review Granted & Held—February 11, 2015

The court ordered briefing deferred pending its decision in Haver v. BNSF Railway Co., S219919, which presents the following issue: 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?

The Court of Appeal, Second District, Division Three, affirmed summary judgment for the defendant. It held in an unpublished decision that, based upon the public policy factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, a premises owner has no duty to protect a family member from secondary exposure to asbestos, when the exposure occurs off the premises and arises from the plaintiff’s association with a family member who wore asbestos-contaminated work clothes home. Guided by Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the court observed that to hold otherwise would impose limitless liability on premises owners.

Review Denied (with dissenting justices)




February 13, 2015

Supreme Court again focusing on race-based juror challenges

After hearing oral argument in a death penalty appeal in January, the Supreme Court Wednesday vacated submission of the case — People v. Scott — and directed the parties to file supplemental briefs on a Batson/Wheeler issue.  (Vacating submission and asking for post-argument briefing is unusual, but not unheard of.)

Batson v. Kentucky (1986) 476 U.S. 79 forbids the prosecution from using peremptory challenges of prospective jurors based on the jurors’ race.  The process for determining whether a prosecutor has done that which is forbidden has generated disagreement at the state’s high court.  Eighteen months ago, Justice Liu, writing separately in a trio of death penalty cases, challenged the California court’s Batson jurisprudence, saying that it “appears noticeably out of step with principles set forth by the United States Supreme Court.”  He also found it “quite remarkable” that, at the time, “[i]n the 102 cases where this court has addressed a Batson claim over the past 20 years, we have found Batson error only once — and that was 12 years ago.”

In Scott, the court has asked the parties to answer these questions:  When a trial court finds that the defendant failed to make the first-stage prima facie showing required under Batson/Wheeler but nonetheless allows or invites the prosecutor to state reasons on the record, the prosecutor states his or her reasons, and then the court agrees that the prosecutor’s reasons are genuine, must an appellate court review the trial court’s ruling only as if it were a third-stage ruling that no purposeful discrimination occurred?  (Compare People v. Banks (2014) 59 Cal.4th 1113, 1146; People v. Chism (2014) 58 Cal.4th 1266, 1314; People v. McKinzie (2012) 54 Cal.4th 1302, 1320; People v. Riccardi (2012) 54 Cal.4th 758, 786, with People v. Lopez (2013) 56 Cal.4th 1028, 1047-1050; People v. Clark (2011) 52 Cal.4th 856, 904-908; People v. Howard (2008) 42 Cal.4th 1000, 1017-1019; People v. Guerra (2006) 37 Cal.4th 1067, 1101-1103; People v. Farnam (2002) 28 Cal.4th 107, 135-139; People v. Mayfield (1997) 14 Cal.4th 668, 723; People v. Turner (1994) 8 Cal.4th 137, 165-168.)  If not, what role, if any, should an evaluation of the prosecutor’s stated reasons play in the appellate court’s review of the first-stage ruling?

February 12, 2015

New California Legal History available

The California Supreme Court Historical Society has published the 2014 edition of its annual journal — California Legal History.  (I’m on the Society’s board of directors.)  Besides the paper copy, which arrived a few weeks ago, the journal is available on the Society’s newly redesigned website.

Here’s the table of contents:



Julian H. Levi

Oral History of Donald R. Wright, Chief Justice of California (1970–1977)


The Argument of an Appeal Before the California Supreme Court

Donald R. Wright

Bernard E. Witkin on his 80th Birthday

Raymond L. Sullivan

Justice Raymond Sullivan on his 80th Birthday

Bernard E. Witkin

Appointments to the California Supreme Court

Edmund G. Brown, Sr.


Chief Justice David S. Terry and the Language of Federalism

Richard H. Rahm

Fifty Years of the Washington-Gilbert Provocative Act Doctrine:  Time for an early retirement?

Mitchell Keiter

The Judicial Give and Take:  The Right to Equal Educational Opportunity in California

Rebecca M. Abel


The (F)law of Karma: In Light of Sedlock v. Baird, Would Meditation Classes in Public Schools Survive a First Amendment Establishment Clause Challenge?

Bradford Masters

California’s Anti–Revenge Porn Legislation:  Good Intentions, Unconstitutional Result

Lauren Williams

Virtual Cloning:  Transformation or Imitation?  Reforming the Saderup Court’s Transformative Use Test for Rights of Publicity

Shannon Flynn Smith


Introduction:  The California Supreme Court and Judicial Lawmaking — The Jurisprudence of the California Supreme Court

Edmund Ursin

Editor’s Note

Judicial Lawmaking, Public Policy, and the California Supreme Court

Evan R. Youngstrom

Justice Traynor’s “Activist” Jurisprudence:  Field and Posner Revisited

Aaron J. Schu

The Influence of Justice Traynor’s Approach to Statutory Interpretation on Modern American Law

Marissa C. Marxen

February 6, 2015

Daily Journal Supreme Court writer Emily Green moving to the Chronicle

The Daily Journal will soon have a new writer covering the California Supreme Court.  Emily Green, who has expertly written about the Supreme Court since June 2012 and who has been with the Daily Journal since August 2010, is leaving soon to become the San Francisco Chronicle‘s City Hall reporter.  (Excellent reporting about high courts must be in the DNA — Emily is the niece of NPR U.S. Supreme Court reporter Nina Totenberg.)

We understand that John Roemer, whose current beat is the Ninth Circuit, will take over as the Daily Journal’s new California Supreme Court writer.

February 6, 2015

March calendar includes an oldie

The Supreme Court today announced its March oral argument calendar.  As with the court’s February calendar, which was heard two days ago, there will be three civil cases in the morning and three criminal cases in the afternoon.

One of the civil cases has been around a while.  (There’s also a death penalty appeal that’s been around a while, but all death penalty appeals are.)  The court granted review in In re Cipro Cases I & II three years ago, although briefing was stayed for separate periods of nine months and then five months.  Another interesting fact about the case:  there were only four votes to grant review, which is unusual.  The docket doesn’t state that any justices were recused, although Justice Werdegar is listed as the Acting Chief Justice, so Chief Justice Cantil-Sakauye might not have participated in the vote.

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

In re Cipro Cases I & II:  May a suit under the Cartwright Antitrust Act (Bus. & Prof. Code, § 16720 et seq.) be brought to challenge “reverse exclusionary payments” made by pharmaceutical manufacturers to settle patent litigation with generic drug producers and prolong the life of the patents in question?  The court also asked for supplemental briefing about the relevance of FTC v. Actavis, Inc. (2013) 570 U.S. __ [133 S.Ct. 2223, 186 L.Ed.2d 343] to the issues in the case.

State Department of State Hospitals et al. v. Superior Court:  (1) Did the state comply with the requirement of the Sexually Violent Predator Act(Welf. & Inst. Code, § 6600 et seq.) that it conduct a “full evaluation” of an inmate potentially qualifying as a “sexually violent predator” prior to the inmate’s release?  (2) Did the Court of Appeal err in finding that, as a matter of law, plaintiff could not establish that defendants’ actions were a proximate cause of her injuries?

South Coast Framing, Inc. v. W.C.A.B.:  Does a claim for workers’ compensation death benefits have a separate and distinct causation standard and burden of proof requiring that an industrial injury constitute a “material factor” contributing to the employee’s death, or does the standard require only that the industrial injury be a “contributing cause”?

People v. Cross:  Did the trial court err in failing to advise defendant in accordance with In re Yurko (1974) 10 Cal.3d 857 before accepting a defense stipulation that he had a prior conviction for an offense that exposed him to an increased sentence under Penal Code section 273.5, subdivision (e)(1)?

In re R. V.:  (1) Which party bears the burden of proof in a juvenile competency proceeding?  (2) What is the proper standard of review on appeal of a trial court’s finding that the juvenile is competent?

People v. Trujeque:  [This is an automatic appeal from a November 1999 judgment of death.  The court’s website does not list issues for such appeals.]