January 16, 2017

Who the “H” is likely to decide the Prop. 66 case?

The Supreme Court is currently considering whether it will hear on the merits a writ petition challenging Prop. 66, the initiative passed in November to speed up California’s death penalty system.  But it’s not the entire court that’s considering the petition — Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused.

So, who will take the Chief Justice’s and Justice Chin’s places?  At this preliminary stage, when the court is just deciding whether it will decide the writ petition’s merits, probably nobody.  According to the court’s Internal Operating Practices and Procedures, a pro tem justice will be appointed only if “four justices cannot agree on a disposition,” and at least four of the five non-recused justices will probably agree whether or not to hear the case.

If the court does agree to hear the case — and it’s likely that the court will — one of the remaining associate justices will be chosen on a rotational basis to be the Acting Chief Justice (we understand that will be Justice Carol Corrigan) and the Acting Chief will assign two pro tem justices to sit on the case.  If the court’s Practices and Procedures are followed, the assignments will go to two Court of Appeal justices.  But those Practices and Procedures can be “temporarily suspended by affirmative vote of four justices” when there is “good cause for special action,” and it’s not impossible that, for a case of this importance, the court will call on retired Supreme Court justices to serve.  (Cal. Const., art. VI, section 6(e) [“A retired judge who consents may be assigned to any court”].)

If the court takes the normal route and two Court of Appeal justices are assigned, who might they be?  Under the Practices and Procedures, Court of Appeal justices — who have served on the Court of Appeal for at least one year — are assigned in alphabetical order, and, “If a Court of Appeal justice is unable to serve on a particular case, the next justice on the alphabetical list will be assigned, and the Court of Appeal justice who was unable to serve will be assigned in the next case in which a pro tempore appointment is required.”

Who’s next on the alphabetical list?  We believe that we’re into the H’s and that Fourth District, Division One, Justice Judith Haller was the last Court of Appeal jurist to serve pro tem, in McGill v. Citibank, N.A., which was argued on the December calendar.  If so, the next in line in the H’s are Presiding Justice Brad Hill (Fifth District), Justice Andrea Hoch (Third District), Justice Brian Hoffstadt (Second District, Division Two), Justice Thomas Hollenhorst (Fourth District, Division Two), Justice Richard Huffman (Fourth District, Division One), Justice Harry Hull, Jr. (Third District), and Presiding Justice Jim Humes (First District, Division One).

The “unable to serve” qualification to the rule of alphabetical assignment makes it difficult to predict with any certainty the pro tem justices for the Prop. 66 case.  We’re guessing that Presiding Justice Hill and Justice Huffman will not be assigned because they’ve both served as pro tems fairly recently (here and here).  That leaves Justices Hoch and Hoffstadt at the top of the alphabetical list, but they could be preempted by justices who were “unable to serve” on earlier cases.

Whoever gets the call, however, will be stepping into the spotlight of an emotionally charged, high-profile case and might be wishing that they hadn’t won the assignment lottery.

January 13, 2017

Summary of January 11, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 11, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission), S238563 – Review Granted – January 11, 2017

In a published opinion, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, the Court of Appeal, Fourth District, Division One, held that a zoning ordinance regulating the number and location of medical marijuana dispensaries was not a “project” subject to the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), and therefore the city was not required to conduct an environmental analysis prior to enacting the ordinance.

This case presents the following questions: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of CEQA?  (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

Review Denied (with dissenting justices)

None.

Depublished

None.

January 13, 2017

Ninth Circuit sends choice-of-law question in insurance case to Supreme Court [Updated]

Claiming the issues are “of significant importance to the state,” the Ninth Circuit today asked the California Supreme Court to answer choice-of-law questions that arise in a case concerning insurance coverage for remediation of pollution damage at Pitzer College.

In Pitzer College v. Indian Harbor Insurance Company, the federal court has requested the Supreme Court to resolve these issues:  “1.  Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis?  May common law rules other than unconscionability not enshrined in statute, regulation, or the constitution, be fundamental public policies for the purpose of choice-of-law analysis?  2.  If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can a consent provision in a first-party claim insurance policy be interpreted as a notice provision such that the notice-prejudice rule applies?”

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

January 8, 2017

“High court to consider pace of executions”

Maura Dolan reports in today’s Los Angeles Times on the Supreme Court writ petition challenging Proposition 66, the initiative passed in November to speed up California’s death penalty process.  The Supreme Court has stayed the new law’s implementation while the court allows preliminary briefing on whether it should decide the writ petition on the merits, which would involve further briefing and an oral argument.  Preliminary oppositions to the petition are due tomorrow.

The Times article notes varying views of the effect on the Supreme Court’s docket of a fully implemented Proposition 66.  One law professor says the court would be spending virtually all its time on death penalty cases.  Another, however, says that judges “sit on them because they don’t like the death penalty,” not “because they are overwhelmed with work.”

Chief Justice Tani Cantil-Sakauye said last year — and the year before — that 25 percent of the court’s resources are spent on automatic death penalty appeals and related habeas corpus petitions.  And that’s without the unprecedented and extreme speed up that Proposition 66 would require.  To claim that the justices are “sitting on” death penalty cases out of animosity to capital punishment is a fact-free slur.  Regardless of that, however, the increase in death penalty appeals and habeas petitions the court would have to decide to comply with Proposition 66’s time limits would, as the first law professor predicts, probably leave the court with the ability to handle little else.

January 6, 2017

In podcast, Chief Justice gives Supreme Court advocacy tips and identifies hot areas of the law

In a Daily Journal podcast released today, Chief Justice Tani Cantil-Sakauye discusses what works and what doesn’t in written and oral advocacy at the Supreme Court.  She also talks about her personal history, including growing up near the Capitol in Sacramento, and about the Supreme Court and the California judiciary in general.

During the comprehensive interview, the Chief Justice said, among many other things, that petitions for review should explain why a case is the best vehicle to resolve the question presented, and that in briefs and at oral argument, counsel should have a rule in mind — not just a result for the particular case — and be prepared to defend the proposed rule.

The Chief Justice was asked what areas of the law the court will likely be dealing with in the future.  Her list included arbitration, CEQA, PAGA, water issues, and the Consumer Legal Remedies Act.  She also said, “I’m hoping that we have spoken enough about anti-SLAPP that you won’t see too many of those, but those continue to come to the California Supreme Court.”

The Chief Justice also discussed the circumstances that might lead to the “rare” grant of review on the court’s own motion and explained that the court strives to be unanimous because the justices “recognize our role as providing guidance not only to the courts, but to businesses and other entities that can rely on the stability and consistency and predictability of the law.”

January 5, 2017

Six cases — mostly civil — on the February calendar in Sacramento

As it was finishing up its January calendar today, the Supreme Court announced next month’s lineup of arguments.  There are six cases, and four of them are civil (five, if you count the habeas corpus case), which is a higher percentage than usual.

On February 7, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):

DisputeSuite.com, LLC v. Scoreinc.com:  Were defendants entitled to an award of attorney fees under Civil Code section 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause?

Park v. Board of Trustees of the California State University:  Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e) ) but does not seek relief against any participant in that proceeding based on his or her protected communications?

Mendoza v. Nordstrom, Inc.:  At the Ninth Circuit’s request, the court will answer these questions:  “(A) 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?  (B) 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?  (C) 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?”

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

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

People v. Becerrada:  This is an automatic appeal from a February 2009 judgment of death.  The court’s website does not list issues for such appeals.

January 5, 2017

State Bar’s late petition for review pays off, as Supreme Court allows it to collect anti-SLAPP attorney fees

In Barry v. State Bar of California, the Supreme Court holds that a prevailing defendant on an anti-SLAPP motion is entitled to attorney fees under the anti-SLAPP statute even though the motion succeeded because the superior court lacked subject matter jurisdiction over the plaintiff’s claim.  The unanimous opinion by Justice Leondra Kruger concludes attorney fees are available whether the claim fails because “it lacks substantive merit” or, as in this case, because “it is filed in a tribunal that lacks the power to hear it.”  The Barry plaintiff is a pro per attorney who sued the State Bar in superior court concerning disciplinary action taken against her, but only the Supreme Court has jurisdiction over attorney discipline matters.  (See The multi-tasking Supreme Court.)

This was almost a victory that wasn’t for the State Bar.  The Court of Appeal had held that the State Bar could not recover its attorney fees.  The State Bar petitioned the Supreme Court for review, but the petition was submitted more than two weeks late.  Accompanying the petition was an application for relief from default.  We don’t know what was in the application, but it was good enough to have the Supreme Court grant permission to file the untimely petition.

The Supreme Court reverses the Second District, Division Two, Court of Appeal.

January 4, 2017

Anti-SLAPP opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Barry v. State Bar of California, which was argued on the November calendar.

This is a case in which the court granted relief to file a late petition for review.  It raises the issue:  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)?

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

December 29, 2016

4-3 Supreme Court allows disclosure of attorney billing records in concluded litigation

In County of Los Angeles Board of Supervisors v. Superior Court, a divided Supreme Court today holds that the attorney-client privilege does not necessarily prevent disclosure under the California Public Records Act of attorney invoices in completed litigation sent by a private law firm to a public entity.  The court’s opinion — by Justice Mariano-Florentino Cuéllar — also concludes, however, that “invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege” and thus are protected from PRA disclosure.  The case stems from an ACLU PRA request for invoices showing how much Los Angeles County had been billed by law firms in connection with lawsuits alleging excessive force against jail inmates.

The majority states, “In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose” and reasons that, “even though the amount of money paid for legal services is generally not privileged, an invoice that shows a sudden uptick in spending ‘might very well reveal much of [a government agency]’s investigative efforts and trial strategy.'”

Justice Kathryn Werdegar — joined by Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan — dissents.  Referring to the attorney-client privilege, Justice Werdegar states the majority “undermines this pillar of our jurisprudence” and says that the court “is simply not free to add elements and prerequisites to a statutory rule of evidentiary privilege.”

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

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

December 29, 2016

Supreme Court rejects punishment for both carjacking and robbery after superior court and Court of Appeal don’t take hints

In People v. Corpening, the Supreme Court today holds that a defendant cannot be punished for both carjacking and robbery when “the same action completed the actus reus for each” crime.  The case involves the carjacking of a van with about $70,000 worth of coins inside.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes that “[a] defendant may not be punished more than once for a single physical act that violates multiple provisions of the Penal Code.”

The court reverses the Fourth District, Division One, Court of Appeal, which had affirmed a superior court sentence for both crimes.  The two lower courts missed opportunities to avoid today’s result.  First, the prosecution recommended that a sentence for the robbery be stayed on grounds that the defendant couldn’t be punished for robbery and carjacking, but the superior court rejected the recommendation.  Then, after the Court of Appeal affirmed based on a 1960 Supreme Court decision and the Supreme Court granted review and transferred the case back for reconsideration in light of a 2012 Supreme Court opinion, the Court of Appeal again affirmed the dual sentence.  Finally, as the Supreme Court says today, “We granted review once more.”

The superior court and the Court of Appeal can’t say they weren’t warned.

 

December 28, 2016

Attorney-client privilege, carjacking/robbery opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its last opinions of the year, in County of Los Angeles Board of Supervisors v. Superior Court, which is the last undecided case from the October calendar,  and People v. Corpening, which will be the first opinion in cases argued on the November calendar.

The County of Los Angeles case raises the issue whether invoices for legal services sent to the County of Los Angeles by outside counsel are within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted.
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

In Corpening, the court will decide, “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?”

When the court last considered a carjacking/robbery case, in People v. Johnson almost two years ago, the court divided 5-2 and new Justice Mariano-Florentino Cuéllar later joined the two dissenters in voting for rehearing.  We don’t know if the issue that split the court in Johnson is implicated in Corpening.

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

December 23, 2016

Summary of December 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, December 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. Note that, due to the holiday break and its early January oral argument calendar, the Court will next hold a conference on Wednesday, January 11, 2017.

Review Granted

T-Mobile West v. City and County of San Francisco, S238001 – Review Granted

In a published opinion, T-Mobile West LLC v. City and County of San Francisco (2016) 3 Cal.App.5th 334, the Court of Appeal, First District, Division Five, held that portions of a city ordinance requiring site-specific permits before constructing wireless facilities are not preempted by state law.  Specifically, the court reviewed the questions of statutory interpretation and preemption to hold that portions of the ordinance that conditioned the approval of a particular site permit on aesthetic concerns are not preempted.

This case presents the following issues: (1) Is a local ordinance regulating wireless telephone equipment on aesthetic grounds preempted by Public Utilities Code section 7901, which grants telephone companies a franchise to place their equipment in the public right of way provided they do not “incommode the public use of the road or highway or interrupt the navigation of the waters”? (2) Is such an ordinance, which applies only to wireless equipment and not to the equipment of other utilities, prohibited by Public Utilities Code section 7901.1, which permits municipalities to “exercise reasonable control as to the time, place and manner in which roads, highways, and waterways are accessed” but requires that such control “be applied to all entities in an equivalent manner”?

Review Denied (with dissenting justices)

None.

Depublished

None.

December 22, 2016

Payday lenders cannot necessarily avoid California consumer protection law by affiliating with an Indian tribe

In People v. Miami Nation Enterprises, the Supreme Court today holds that the California Deferred Deposit Transaction Law might apply to payday lenders who affiliated with federally recognized Indian tribes, even though the tribes would generally be protected by tribal sovereign immunity.  The court’s unanimous opinion by Justice Goodwin Liu concludes that “an entity asserting immunity bears the burden of showing by a preponderance of the evidence that it is an ‘arm of the tribe’ entitled to tribal immunity” and specifies a test requiring consideration of these factors:  “(1) the entity’s method of creation, (2) whether the tribe intended the entity to share in its immunity, (3) the entity’s purpose, (4) the tribe’s control over the entity, and (5) the financial relationship between the tribe and the entity.”

The court reverses the Second District, Division Seven, Court of Appeal.  It disagrees with decisions from the high courts of Colorado, Alaska, and New York.

December 22, 2016

5-2 ruling gives workers duty-free rest periods

In Augustus v. ABM Security Services, Inc., a 5-2 Supreme Court today interprets a statute and regulation as requiring that employees be given 10-minute rest breaks where they are not on-duty or on-call.  [Disclosure:  Horvitz & Levy filed an amicus brief in the case.]  The majority opinion by Justice Mariano-Florentino Cuéllar states that “[a] rest period, in short, must be a period of rest,” which means that employers must “relinquish any control over how employees spend their break time, and relieve their employees of all duties — including the obligation that an employee remain on call.”  The issues were raised in a class action brought by private security guards who recovered a $90,000,000 judgment.

Justice Leondra Kruger, joined by Justice Carol Corrigan, writes a concurring and dissenting opinion.  She agrees with the majority’s tautology that “[a] rest period . . . must be a period of rest,” but disagrees that being on-call is incompatible with rest.  According to Justice Kruger, “a bare requirement to carry a radio, phone, pager, or other communications device in case of emergency does not constitute ‘work’ in any relevant sense of the term.”

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

December 21, 2016

New California Supreme Court Historical Society newsletter is out

The California Supreme Court Historical Society has published its Fall/Winter 2016 newsletter.  [Disclosure:  I’m on the Society’s board of directors.]  The newsletter includes tributes to former Chief Justice Malcolm Lucas and former Ninth Circuit Judge/Court of Appeal Justice/Secretary of Education Shirley Hufstedler, a report on two Society programs:  a celebration of the publication of the Society’s new history of the Supreme Court and a discussion of judicial elections (I wrote the latter report), and an article (with a classic photo) about Star Trek fan Justice Mariano-Florentino Cuéllar’s appearance at Comic Con.2016-newsletter-fall-winter1

December 21, 2016

Tribal sovereignty, employment opinions filing tomorrow

As expected, the Supreme Court will file tomorrow its opinions in Augustus v. ABM Security Services, Inc. and People v. Miami Nation Enterprises, which are the last two undecided late-September calendar cases.  [Disclosure:  Horvitz & Levy filed an amicus brief in the Augustus case.]

The Miami Nation Enterprises raises the issue whether a payday loan company owned by a federally recognized Indian tribe is entitled to tribal sovereign immunity, and thus exempt from state regulation, if the day-to-day management of the business is handled by a third party management company that is not affiliated with the tribe and pays the tribe a small percentage of the gross revenues.

In Augustus, the court is expected to answer these questions:  (1) Do Labor Code, § 226.7 and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks?  (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?

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

December 20, 2016

Proposition 66 stayed

The Supreme Court today stayed “the implementation of all provisions of Proposition 66,” the speed-up-the-death-penalty initiative that passed last month and that could cause unprecedented disruption to California’s judicial system.

A writ petition challenging the new law, and asking for a stay of its enforcement, was filed the day after the election, but the Supreme Court denied the stay request without prejudice to renewing the request after the Secretary of State certified the vote on the initiative.  The certification occurred on Friday.  Yesterday, the challengers — former California Attorney General John Van de Kamp and former death penalty supporter Ron Briggs — submitted an amended and renewed writ petition, again asking for an immediate stay.

With Chief Justice Tani Cantil-Sakauye and Justice Ming Chin recused, the court today granted the stay request “to provide time for further consideration of the amended petition for writ of mandate and to permit the filing and consideration of papers in opposition to the petition.”

Preliminary oppositions to the petition are due by January 9, and the petitioners can file a reply by January 23.

December 19, 2016

Summary of December 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, December 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

None.

Review Denied (with dissenting justices)

None.

Depublished

Bay Area Clean Environment v. County Of Santa Clara (Lehigh Southwest Cement), S237709 – Review Denied and Opinion Depublished – December 14, 2016

In a published opinion, Bay Area Clean Environment, Inc. v. Santa Clara County (2016) 2 Cal.App.5th 1197, the Sixth District Court of Appeal affirmed the denial of a petition for writ of mandate brought by a non-profit organization.  The organization had challenged Santa Clara County’s reclamation plan amendment for closing and reclaiming a quarry, asserting claims under the California Environmental Quality Act (CEQA) and the Surface Mining and Reclamation Act.  The Court of Appeal held the County had properly certified the environmental impact report and approved the reclamation plan amendment in compliance with CEQA.

The Supreme Court denied review and directed the Reporter of Decisions not to publish the Court of Appeal opinion.

December 19, 2016

Supreme Court affirms death sentence for political murder of police officer

The Supreme Court today affirms the death penalty in People v. Mickel for the 2002 murder of a Red Bluff police officer.  The defendant claimed he ambushed and shot the officer to defend liberties the defendant believed the government was infringing, including the right to bear arms.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes the trial court did not err in failing to hold a hearing regarding the defendant’s competency to stand trial and it rejects the argument that his lawyer was himself incompetent for failing to inform the court of a physician’s report questioning the defendant’s competence.  The court leaves the issue of counsel’s competence open to challenge in a habeas corpus petition, however.

December 16, 2016

What’s good cause to put off an oral argument?

Last month, the Supreme Court started a new policy of sending counsel letters advising that oral argument could soon be set in their cases and directing them to tell the court immediately if there was good cause not to schedule argument for a particular day.  This month, the policy is the same, but the letter is a bit different.  (We know because we got one this week.)

Instead of requesting counsel to respond “immediately,” the court now asks for notice “within 7 calendar days of receiving this letter.”  It also explains notice of a potential conflict should be given even by “counsel who, before receiving this letter, have previously asked to avoid certain dates.”

The most significant revision to the letter is the detailed explanation of what does and does not constitute good cause:  “Examples of conflicts previously found to constitute good cause to avoid scheduling argument on any particular date include significant health-related issues; prepaid and nonrefundable travel arrangements booked in advance of the court’s notification regarding oral argument; and significant family events such as marriage.  Examples of conflicts previously found not to constitute good cause include scheduled trial and hearing dates in lower courts; conflicting professional seminars, meetings, or conventions; and planned significant family events that do not conflict with the actual dates on which argument might be held.”

The letter still warns, “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.”

December 16, 2016

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Mickel, an automatic appeal from an April 2005 judgment of death.  The case was argued on the October calendar.

Based on the today’s announcement of only one Monday filing, and because of the 90-day deadline for filing opinions, we can expect opinions Thursday in the last two undecided late-September calendar cases:  Augustus v. ABM Security Services, Inc., an employment rest-break case, and People v. Miami Nation Enterprises, which raises Indian tribal sovereign immunity issues.

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

December 15, 2016

City improperly approved private housing development on public open space

In Orange Citizens for Parks and Recreation v. Superior Court, the Supreme Court today holds that the City of Orange wrongly interpreted its general plan as allowing a 39-unit housing development that would replace public open space.  Stating that judicial “deference has limits,” the unanimous opinion by Justice Goodwin Liu concludes “no reasonable person” would agree with the City’s interpretation, especially after the City’s voters passed a referendum to reject a general plan amendment that would have allowed the development.

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

December 15, 2016

Dealership not liable in class action under Automobile Sales Finance Act

In Raceway Ford Cases, the Supreme Court today clears an auto dealership of liability in a class action under the Automobile Sales Finance Act.  The unanimous opinion by Justice Goodwin Liu holds that the dealership did not violate ASFA by backdating second finance contracts to the date of the first contracts and that, although it did violate ASFA by including inapplicable fees in the contracts, ASFA provides no remedy for the class because the violation was accidental.  The court rejects the plaintiffs’ argument that the inclusion of inapplicable fees was not an immunized “accidental or bona fide error in computation” under ASFA (emphasis added); the court reasons, “a football scoresheet that routinely assigned each fieldscoreboard goal two points instead of three in the course of calculating final scores may readily be said to have committed an error in computation.”  The opinion concludes that its statutory interpretation “is consistent with the twin aims of ASFA: deterring dealer misconduct and avoiding windfalls for plaintiffs.”

The court affirms in part and reverses in part a decision by the Fourth District, Division Two, Court of Appeal — that court had found an ASFA violation in the contract backdating.  The court also disapproves a 2010 opinion by the Fourth District, Division One, on the backdating issue.

December 14, 2016

Low-density housing, Automobile Sales Finance Act opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Orange Citizens for Parks and Recreation v. Superior Court, which was argued on the special late-September calendar, and in Raceway Ford Cases, which was argued the following week on the October calendar.

The Orange Citizens case will decide whether the proposed development project of low density housing at issue in this case is consistent with the city’s general plan.

Raceway Ford will address these issues:  (1) Does the inclusion of inapplicable smog check and smog certification fees in an automobile purchase contract violate the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.)?  (2) Does backdating a second or subsequent finance agreement to the date of the first finance agreement for purchase of a vehicle violate the Act?

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

December 13, 2016

Get your own friends

Borrowing friends in the Supreme Court can be tricky.  That’s what a defendant found out earlier this year.

In People v. Franklin (2016) 63 Cal.4th 261, the court examined a lengthy prison sentence to determine, among other things, if it was unconstitutionally the “functional equivalent” of life without parole for a crime committed by a minor.  The court concluded it wasn’t, and the U.S. Supreme Court last week denied certiorari.

Franklin was originally a grant-and-hold case, with action deferred pending the resolution of two other cases.  After those cases were decided, however, the court un-held Franklin and ordered briefing.  The defendant asked the court to take judicial notice of four amicus curiae briefs filed in the two cases.  The court declined, stating that it could  “‘”take judicial notice of the [e]xistence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments”’” and that the defendant did “not argue that the existence (as opposed to the content) of these briefs is relevant here.”  (Franklin, supra, 63 Cal.4th at p. 280.)

Some appellate courts have taken judicial notice of other cases’ amicus briefs.  (See, e.g., Seacrist v. Southern California Edison Company (2016) 197 Cal.Rptr.3d 834, 848, fn. 6 [review denied and opinion depublished]; Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 148, fn. 22; McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 84, fn. 1; Guild Mortgage Co. v. Heller (1987) 193 Cal.App.3d 1505, 1514, fn. 11.)

However, if amicus briefing filed in another case would be helpful in your case, the better practice — post-Franklin — would be to solicit the amicus in the other case to revise and re-file its amicus brief in your case.  Failing that, you could try to rely on rule 8.200(a)(5), which allows a party, “as part of its brief, . . . [to] adopt by reference all or part of a brief in . . . a related appeal.”  (Warning:  rule 8.200 might apply only in the Court of Appeal, and even there might not apply to adoption by reference of amicus briefs.)

December 12, 2016

Supreme Court affirms death penalty for murder committed by white supremacist inmate

The Supreme Court today affirms the death penalty in People v. Landry, imposed on a white supremacist prisoner for the 1997 murder of another prisoner.  In a unanimous opinion by Chief Justice Tani Cantil-Sakauye, the court also strikes a one-year sentence enhancement.

Among many other things, the court concludes the superior court correctly refused the defendant’s request to instruct the jury on duress because, statutorily, duress cannot be a defense to murder and because that elimination of the duress defense is constitutional.

Additionally, the court rejects a constitutional attack on a statute that makes it potentially a capital offense for an inmate serving a life sentence to commit a murder in less than the first degree.  The court finds, “the legislative determination that life prisoners who commit fatal aggravated assaults are potentially deserving of death is a venerable one” and is appropriately based on the Legislature’s conclusion that the “particular status as life prisoners requires this exceptional measure to protect correctional officers and other inmates.”

December 12, 2016

Supreme Court decides hotel tax case

In In re Transient Occupancy Tax Cases, the Supreme Court today holds . . . well, here’s the issue and the holding as stated in the unanimous opinion by Justice Kathryn Werdegar (material in brackets added):  “The question before us is whether the San Diego transient occupancy tax [a percentage of the rent charged by hotel operators to hotel visitors] is payable on the amount retained by the OTCs [online travel companies that book and receive payment for visitors’ hotel reservations] above the amount remitted to the hotels as the agreed wholesale cost of the room rental.  We conclude that under the San Diego ordinance, in a ‘merchant model’ transaction of the sort at issue here, the operator of a hotel is liable for tax on the wholesale cost plus any additional amount for room rental the operator requires the OTC to charge the visitor under what have been termed ‘rate parity’ provisions of hotel-OTC contracts but, as San Diego has effectively conceded, OTCs are not operators within the meaning of the ordinance.”

Because it was San Diego that sought review and the online travel companies that opposed review, and because the Supreme Court affirms the Second District, Division Two, Court of Appeal, we’re assuming San Diego lost and the online travel companies won.

December 11, 2016

Are The Turtles inching their way to the Supreme Court?

The 1960’s rock group The Turtles and music streaming company Pandora Media squared off last week in the Ninth Circuit in a case under state copyright/anti-SLAPP law.  During the oral argument, the judges suggested that the matter might be appropriate for referral to the California Supreme Court.  (Here, here, and here.)

The case is Flo & Eddie, Inc. v. Pandora Media, Inc., 15-55287.  Stay tuned.

December 9, 2016

Hotel tax[, death penalty] opinion[s] filing Monday [Updated]

On Monday morning, the Supreme Court will file its opinion[s] in In re Transient Occupancy Tax Cases, which was argued on the special late-September calendar in San Diego[, and in People v. Landry, which was argued on the October calendar].

The Tax Cases raises the issue:  When a customer books a hotel room through an online travel company, should the occupancy tax levied on the rent charged by the hotel be calculated based on the retail rate paid by the customer to obtain the right to use the room or on the wholesale amount that the hotel receives from the online travel company after that company has deducted its markup and fees?

[Landry is an automatic appeal from a September 2001 (9/11/01, to be exact) judgment of death.]

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

December 9, 2016

No conference held the week of December 5, 2016

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

December 8, 2016

Supreme Court affirms death penalty for robbery-murder

In People v. Melendez, the Supreme Court today affirms the death penalty for a 2000 robbery and murder.  The unanimous opinion by Justice Ming Chin, among other things, rejects the defendant’s argument that the prosecution had a racially discriminatory motive in peremptorily challenging three African-American prospective jurors.  This Batson/Wheeler issue has divided the court in other cases.

December 8, 2016

Extension of bail bond exoneration period held properly denied

In People v. Financial Casualty & Surety, Inc., the Supreme Court today holds a superior court reasonably denied a surety’s request for a second extension of the period during which a bail bond may be exonerated.  The unanimous opinion by Justice Kathryn Werdegar concludes the superior court could have granted the second extension if it had wanted to (a statutory interpretation question about which the Court of Appeal had reached the opposite conclusion), but that the superior court properly exercised its discretion to deny the request.  The superior court correctly considered not only the surety’s diligence in trying to locate the defendant, but also whether the surety had shown “a reasonable likelihood the extension will result in the defendant’s apprehension.”  The Supreme Court rejects the argument that “the likelihood of apprehension is impossible to assess objectively and requires, in effect, that the surety ‘bring a fortune teller into court.’ ”

Despite disagreeing with the Court of Appeal on the statutory interpretation issue, the Supreme Court affirms the Second District, Division Five, because the lower court had affirmed the superior court’s discretionary denial of the extension.  The court also disapproves a 2013 decision by the First District, Division Three, and a 2010 decision by the Second District, Division Eight.  It agrees with 2015 decisions by the Fifth District and the Second District, Division Four, and a 2006 decision by the Third District.

December 7, 2016

Bail exoneration, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in People v. Financial Casualty & Surety, Inc. and People v. Melendez, which were both argued on the October calendar.

The Financial Casualty case raises these issues:  (1) Should the good cause standard under Penal Code section 1305.4 for extension of the period to exonerate bail require a demonstration of a reasonable likelihood of success of returning a fugitive?  (2) When a court finds there has been a diligent investigation to locate a fugitive, does the burden shift under Penal Code section 1305.4 to the People to prove that there is not a reasonable likelihood of success of returning the fugitive?  (3) Does an extension of the period to exonerate bail under Penal Code section 1305.4 commence on the date on which the initial 180-day period expires or on the date on which the trial court grants the extension?

Melendez is an automatic appeal from an August 2003 death penalty judgment.

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

December 5, 2016

Warrantless cell phone search requires reversal of conviction

In People v. Macabeo, the Supreme Court today reverses a conviction for possession of sexually explicit photos of minors because the images were found on the defendant’s cell phone, which was illegally searched without a warrant.  The court’s opinion by Justice Carol Corrigan holds the prosecution couldn’t rely on any exception to the Fourth Amendment’s search warrant requirement.  It also finds exclusion of the evidence found during the illegal search was the correct remedy, rejecting an argument that the search resulted from a good faith police mistake.

The search in the case occurred after the court had held that it was permissible to search an arrestee’s cell phone without a warrant, but before the U.S. Supreme Court reached the opposite conclusion. The prosecution argued that, even though illegal under current U.S. Supreme Court law, the search when it took place was proper under the state Supreme Court’s now-superseded opinion, and that the fruits of the search thus should be admissible evidence.  The California high court disagrees, finding that the search wasn’t legal even under its earlier opinion.  That opinion allowed warrantless cell phone searches after an arrest, but the Macabeo defendant was not arrested before his phone was searched and, the court explains, “a reasonably well-trained officer would have known that the search here did not qualify as one incident to arrest.”

The Supreme Court reverses the Second District, Division Five, Court of Appeal.

December 5, 2016

Supreme Court unanimously affirms death penalty for child murderer

In People v. Williams, the Supreme Court today affirms the death penalty for the 1986 murder of a 14-year-old girl.  The unanimous opinion is by Justice Ming Chin.

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.”