January 12, 2018

Supreme Court action at its January 10, 2018, conference on CalWORKs, employment, res judicata cases

At its January 10 conference, the Supreme Court granted review in two civil cases and depublished one civil opinion.  It also issued 16 grant-and-hold orders in criminal cases, 13 criminal or habeas corpus case grant-and-transfer orders, and an order to show cause in another habeas case, and it depublished a criminal opinion and responded favorably to two clemency recommendation requests by the Governor.

Here’s a quick look at the three civil cases with, for the two review-granted cases, the issue presented as stated by the court or its staff.

Christensen v. Lightbourne:  Review granted.

(1) Should court-ordered child support payments for children living outside the home be considered income available to children in the home in determining eligibility for CalWORKs aid?  (2) When garnished child support is the direct or indirect income of children outside the home who are receiving CalWORKs aid, does the state violate Welfare and Institutions Code section 11005.5 when it allows the garnished income to also be considered in determining the amount of aid to the paying family?

In a published opinion, the First District, Division Two, Court of Appeal reversed the superior court and ruled against the CalWORKs applicant, holding child support payments do count as income for the family that isn’t receiving the payments.  The appellate court deferred to the California Department of Social Services’ interpretation of CalWORKs statutes and its own regulations that “court-ordered child support counts as income to the payer’s family in determining the family’s CalWORKs eligibility and aid amount.”

Melendez v. San Francisco Baseball Associates LLC (aka the San Francisco Giants):  Review granted.

The court limited review to the issue whether plaintiffs’ statutory wage claim under Labor Code section 201 requires the interpretation of a collective bargaining agreement, and is therefore preempted by section 301 of the federal Labor Management Relations Act.

The defendant San Francisco Giants prevailed in the First District, Division Three, Court of Appeal’s published opinion, one of the team’s few wins last season.  The superior court denied the Giants’ motion to compel arbitration in a wage dispute with one of the team’s security guards, but the appellate court held “arbitration is required by section 301 of the Labor Management Relations Act.”

Ly v. County of Fresno:  Petition for review denied; opinion depublished.

In an opinion that is now no longer citable, the Fifth District Court of Appeal held an employment discrimination/harassment/retaliation lawsuit was barred by the res judicata effect of a decision by administrative law judges in a simultaneous worker’s compensation proceeding.

 

January 11, 2018

2-Day DRI appellate advocacy seminar coming in March

On March 14 and 15 in Las Vegas, DRI will present its 2018 Appellate Advocacy Seminar.  From the program brochure:  “At the DRI Appellate Advocacy Seminar, experienced appellate practitioners, in-house counsel, and occasional appellate advocates alike will benefit from a distinguished faculty of judges, in-house counsel, and leading practitioners providing valuable insights into effective appellate advocacy.  The live oral argument and writing sessions will provide concrete strategies and techniques for improving persuasiveness on appeal.”

Seminar faculty includes judges from the Ninth Circuit, California Court of Appeal, and other appellate courts around the country.  [Disclosure (and an additional reason to attend):  Horvitz & Levy partner Mitch Tilner is also part of the seminar faculty.]

January 9, 2018

It’ll probably take a month or so before a new appointee can join the court

If the delay in naming the pro tem justices for the February calendar signified the Supreme Court’s belief that the temporary justices would be unnecessary because the court’s vacancy would soon be filled, the court now apparently feels that, no matter how fast Governor Jerry Brown makes an appointment, there’s not enough time to have a new justice in place for the next oral arguments.  (By the way, this is Day 307 since Justice Kathryn Werdegar announced her retirement.)  That’s probably true.

Before taking her or his seat on the court, a newly appointed justice must be evaluated by the Commission on Judicial Nominees Evaluation (JNE) and then confirmed by the Commission on Judicial Appointments after a public comment period and hearing.  It usually takes about a month for that process.

For Justice Leondra Kruger, the time from her appointment until her confirmation was 28 days.  The time between nomination and confirmation for Justice Mariano-Florentino Cuéllar was 37 days.  (Yes, there’s a difference between an appointment and a nomination.)  Justice Goodwin Liu’s appointment-to-confirmation time was 36 days.

So, to avoid having a seventh consecutive calendar with pro tems in March, the Governor would probably need to make his appointment by the first week of February.

January 9, 2018

Pro tems announced for the February calendar

When the February calendar was originally released last week, seven of the eight cases to be argued had pro tems to be named later (using a mostly alphabetical assignment system).  Today’s the time, and here they are:

California Building Industry Association v. State Water Resources Control Board:  Fourth District, Division One, Court of Appeal Justice Terry O’Rourke.

Dynamex Operations West, Inc. v. Superior Court:  First District, Division Three, Court of Appeal Justice Peter Siggins.

People v. Chavez:  Second District, Division One, Presiding Justice Frances Rothschild.

In re I. C.:  Third District Court of Appeal Justice Jonathan Renner.

Heckart v. A-1 Self-Storage, Inc.:  Fifth District Court of Appeal Justice Bruce Smith.

People v. Perez, Jr.:  First District, Division Four, Court of Appeal Justice Jon Streeter.

People v. Soto:  Fourth District, Division Three, Court of Appeal Justice David Thompson.

January 8, 2018

SCOTUS denies cert in Supreme Court mining case

The U.S. Supreme Court today said it would not review the California Supreme Court’s decision in People v. Rinehart, where the state court over 16 months ago held that California limits on gold mining were not preempted by federal law.  SCOTUS had invited the U.S. Solicitor General’s views on the certiorari petition and he last month recommended against review.

January 6, 2018

Is it significant that most pro tems for the Supreme Court’s February calendar have yet to be named? [Updated]

The Supreme Court February calendar will have eight cases and, as with the past five months’ calendars, a pro tem justice is scheduled to sit on each case to compensate for the vacancy created by Justice Kathryn Werdegar’s retirement, which was announced ten months ago.  (Speaking of delays, the court granted review in three of the February cases in 2015.)

What makes the latest calendar different from the last five is that only one pro tem has been named so far.  That suggests the court believes the appointment and confirmation of Justice Werdegar’s replacement in finally imminent, in which case temporary justices for February could be unnecessary.  Or it might mean nothing at all.

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

California Building Industry Association v. State Water Resources Control Board:  (1) Does Water Code section 181 permit the State Water Resources Control Board to approve its annual fee under the waste discharge permit program by a majority of the quorum?  (2) Does Proposition 26 apply to the waste discharge permit program fee?  (3) Does the Board have the initial burden of demonstrating the validity of its fee?  (4) Is the fee, which is based on balancing the fees and costs of the waste discharge permit program, an invalid tax unless it separately balances the fees and costs of each of the eight program areas within the program?  The court granted review in July 2015.  (The pro tem justice has not yet been assigned for this case.)

Dynamex Operations West, Inc. v. Superior Court:  In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control?
The court has twice asked for supplemental briefing.
A year ago, the court told the parties and amici to discuss what relevance, if any, the court should give to the Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual (2002 update as revised March 2006) and, in particular, to the sections of the manual that discuss the independent contractor/employee distinction (§§ 2.2, 2.2.1, 28-28.4.2.4)?
Then, just nine days ago, the court asked the parties to brief:  Is the pertinent wage order’s suffer-or-permit-to-work definition of “employ” properly construed as embodying a test similar to the “ABC” test that the New Jersey Supreme Court, in Hargrove v. Sleepy’s LLC (N.J. 2015) 106 A.3d 449, 462-465, held should be used under the New Jersey Wage and Hour Law, which also defines “employ” to include “to suffer or to permit to work” (N.J. Stat. § 34:11-56a1)?
This case is an old one.  Review was granted almost three years ago.
(The pro tem justice has not yet been assigned for this case.)
[Disclosure:  Horvitz & Levy has filed amicus curiae briefs in this case.]

People v. Chavez:  (1) Does Penal Code section 1203.4 eliminate a trial court’s discretion under Penal Code section 1385 to dismiss a matter in the interests of justice?  (2) Do trial courts have authority to grant relief under Penal Code section 1385 after sentence has been imposed, judgment has been rendered, and any probation has been completed?  The court granted review just 10 months ago.  (The pro tem justice has not yet been assigned for this case.)

In re I. C.:  (1) Did the juvenile court err by failing to determine whether the truthfulness of the minor as a hearsay declarant was “so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility” as required by In re Lucero L. (2000) 22 Cal.4th 1227?  (2) Did the Court of Appeal err by affirming the trial court’s jurisdictional finding without reviewing the entire record for substantial evidence of the minor’s clear truthfulness?  The court granted review in October 2015.  (The pro tem justice has not yet been assigned for this case.)

People v. Reed:  This is an automatic direct appeal from a September 1999 judgment of death.  The court’s website does not list issues for such appeals.  (Fifth District Court of Appeal Justice Rosendo Peña, Jr., is the pro tem.)

Heckart v. A-1 Self-Storage, Inc.:  Was a self-storage facility’s storage rental agreement, which included provisions arguably meeting the definition of “insurance” (see Ins. Code, §§ 22, 1758.75), subject to regulation under the Insurance Code when the principal purpose of the agreement between the parties was the rental of storage space rather than the shifting and distribution of risk?  The court granted review in March 2016.  (The pro tem justice has not yet been assigned for this case.)

People v. Perez, Jr.:  Did the Court of Appeal err when it failed to defer to the trial court’s factual finding that defendant did not use a deadly weapon during his previous assault and was therefore eligible for resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126)?  The court granted review one year ago.  (The pro tem justice has not yet been assigned for this case.)

People v. Soto:  (1) Did the trial court err in instructing the jury?  (2) If so, was the error prejudicial?  Because that statement of the issues is not very enlightening, you might want to look at the Court of Appeal’s opinion for a better idea of what’s involved.  (Spoiler alert:  the Court of Appeal found a non-prejudicial error.)  The Supreme Court granted review in October 2016.  (The pro tem justice has not yet been assigned for this case.)

[January 9 update:  Pro tems announced for the February calendar.]

January 3, 2018

Governor Brown makes Supreme Court appointment

No, not California’s Governor Jerry Brown.  It was Oregon’s Governor Kate Brown.  She yesterday appointed Judge Adrienne Nelson, who will be the first African-American to serve on that state’s high court and, indeed, on any Oregon appellate court.

In contrast to the California Brown, who has yet to name a replacement for Justice Kathryn Werdegar 301 days after she announced her retirement and 125 days after she left the court, Oregon’s Brown appointed Judge Nelson 105 days after Nelson’s predecessor announced his retirement and just 2 days after the retirement became effective.

January 3, 2018

Ninth Circuit asks for help in another employment case

The Ninth Circuit last week again asked the Supreme Court to answer California employment law questions.  Employment law is a common subject of Ninth Circuit requests. (E.g., here, here, and here.)

In Stewart v. San Luis Ambulance, Inc., the federal court said it could use help deciding these issues: 1. Under the California Labor Code and applicable regulations, is an employer of ambulance attendants working twenty-four hour shifts required to relieve attendants of all duties during rest breaks, including the duty to be available to respond to an emergency call if one arises during a rest period?, 2. Under the California Labor Code and applicable regulations, may an employer of ambulance attendants working twenty-four hour shifts require attendants to be available to respond to emergency calls during their meal periods without a written agreement that contains an on-duty meal period revocation clause? If such a clause is required, will a general at-will employment clause satisfy this requirement?, 3. Do violations of the meal period regulations, which require payment of a “premium wage” for each improper meal period, give rise to claims under sections 203 and 226 of the California Labor Code where the employer does not include the premium wage in the employee’s pay or pay statements during the course of the violations?

The Supreme Court isn’t required to answer the Ninth Circuit’s questions, but it probably will.  The court has said “yes” to 20 out of the last 21 federal appeals court requests, and even the one denial during that time wasn’t really a denial.  There hasn’t been a flat “no” since March 2012.  We should know by the beginning of March — give or take — whether it will answer the questions.

January 2, 2018

“California Supreme Court struggles as vacancy drags on”

On Day 300 since Justice Kathryn Werdegar announced her retirement, Bob Egelko writes in the San Francisco Chronicle about Governor Jerry Brown’s delay in naming her replacement.  The article notes that one consequence of the delay is the interim use of randomly selected Court of Appeal justices as temporary high court members and that one pro tem justice cast a deciding vote in the T. H. v. Novartis Pharmaceuticals Corp. case, which is an institutional problem.  (See here, here, and here.)

Since Justice Werdegar retired, there have already been 26 cases argued with pro tems, there will be another eight tomorrow and Thursday, and the court will soon announce its February calendar with more.

It didn’t have to be this way.  Justice Werdegar left the court four months ago, but announced her retirement plans almost six months earlier than that, and Governor Brown probably could have appointed a new justice even before there was an empty seat.  In fact, the Chronicle article quotes Justice Werdegar as saying she gave the Governor a long lead time for the very purpose of avoiding a prolonged vacancy.  Although she had been hesitant to be regarded as a “lame duck,” she said, “’I really wanted to give the governor time to consider who he would like to name as a replacement . . . to have a smooth transition,’” and she “‘share[s] the general bafflement as to what the delay has been.’”

January 1, 2018

Assemblyman attacks Supreme Court’s legitimacy

The latest attempt to de-legitimize the judiciary is an attack on the California Supreme Court by a member of the state Assembly.  Last month, the court denied without comment a petition for review he filed, which is the fate of around 95 percent of such requests to have the court hear a case.  Yet, as the Orange County Breeze reports, the assemblyman responded to the denial in his case by saying, “we clearly can no longer trust . . . the California Supreme Court to be impartial or factual” and the court “has made a mockery of justice.”

The petition for review concerned an initiative that the assemblyman — Travis Allen — is pushing to repeal or amend various portions of the 2017 law that increased California gasoline taxes.  (One of Allen’s central arguments in his repeal campaign has been rated “mostly false” by the nonpartisan fact-checker Politifact.)  The Court of Appeal’s opinion, which the Supreme Court left standing by its denial of review, doesn’t keep the initiative off the ballot, but only rejects an attempt by the assemblyman to change the circulating title and summary that the State’s Attorney General, Xavier Becerra, prepared for the initiative.

Disagreements with court decisions are common.  But attacking the legitimacy of the judiciary is dangerous, and is particularly pernicious when coming from an elected member of another, equal branch of government.

December 29, 2017

Divided Ninth Circuit overturns murder conviction the Supreme Court had affirmed

Concluding that “our confidence in the outcome of [the] trial is undermined,” a 2-1 Ninth Circuit panel today grants habeas corpus relief to a defendant whose death sentence the California Supreme Court had affirmed in 1988.  The Supreme Court also denied several habeas petitions.  (Here, here, and here.)  In Hernandez v. Chappell, the federal appeals court — under pre-AEDPA standards of review (see here and here) — faults the defendant’s trial counsel for not presenting a diminished capacity defense based on mental impairment, because the attorney “was ignorant of the law.”

For other recent Ninth Circuit habeas decisions in California death penalty cases, see here, here, and here.

December 29, 2017

New Historical Society newsletter

The California Supreme Court Historical Society Fall/Winter 2017 newsletter is now available.  [Disclosure:  I’m on the Society’s board of directors.]

The newsletter includes tributes to retired Justice Kathryn Werdegar by colleagues, family, and friends and by a staff attorney.  (By the way, Justice Werdegar announced her retirement 296 days ago, but her replacement has yet to be named.)  Also in the current edition is — Law Walk:  A Legal Site-Seeing Tour of Downtown Los Angeles; People v. Hall:  A Postscript; History on the Walls:  The Santa Ana Courthouse Murals; Images of History:  The Mosk Family Autograph Collection; Tooling Around Berkeley in a Yellow Jag:  A Tribute to Professor Herma Hill Kay; John Van de Kamp:  Man of Principle; Book Review:  How Adversarialism Triumphed – and What It Wrought; the 2017 Student Writing Competition Winner; news that a Student Chapter of the Society Begins at UC Hastings; and Dan Grunfeld Takes Leadership Role at Pardee RAND Graduate School.

December 28, 2017

Exclusion during retrial of evidence of conviction at first trial is proper

Usually, it’s the defendant who wants to exclude evidence that he had previously been convicted of a crime.  In People v. Hicks, however, it was the prosecutor who convinced the trial court to keep out that evidence.  It’s not as odd as it sounds.  The defendant was being retried for second degree murder after a first jury hung on that charge but convicted him of, among other things, gross vehicular manslaughter while intoxicated, and the defendant didn’t want the second jury to think he would go free if it acquitted him of murder.

In a 6-1 opinion by Justice Ming Chin, the Supreme Court today holds that the trial court properly excluded evidence of the first-trial convictions, but says it would be OK to instruct the jury that cases are sometimes tried in segments and that the jurors cannot “speculate about whether the defendant may have been, or may be, held criminally responsible for his conduct in some other segment of the proceedings.”  The court also concludes the failure to give that type of cautionary instruction was not prejudicial.

Justice Goodwin Liu dissents, saying that the jury should have been told the defendant had already been convicted of manslaughter and also that the error was prejudicial.  His test is that the parties “should have been put, to the extent possible, in the same position at the retrial as at the first trial.”

The court affirms the Second District, Division Five, Court of Appeal.  2/5 had disagreed with a 2014 opinion by the Fourth District, Division Two, which the Supreme Court disapproves.  The court also disapproves a 2016 4/2 opinion.

December 28, 2017

Prosecution has high burden to prevent three-strikes resentencing

In People v. Frierson, the Supreme Court today holds that the prosecution must prove beyond a reasonable doubt that a defendant is ineligible for resentencing under the Three Strikes Reform Act of 2012.  The court’s unanimous opinion by Justice Carol Corrigan also concludes, however, that a trial court’s discretionary decision to deny resentencing to an otherwise eligible defendant — because he or she poses an unreasonable risk of danger to public safety — need be supported by only a preponderance of the evidence.

The court reverses the Second District, Division Four, Court of Appeal.  Also, resolving a split of authority, the court disapproves 2016 and 2014 Fifth District opinions and a 2016 opinion by the Second District, Division Two.  The court likes a 2016 opinion by the Second District, Division Three.

December 28, 2017

No conference held the week of December 25, 2017

The Court is holding no conference this week because of the Christmas and New Year’s holidays.  Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.  The Court’s next conference will be on January 10, 2018.

December 27, 2017

Resentencing eligibility, retrial evidence opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its last opinions of 2017, in People v. Frierson and People v. Hicks.  (Briefs here; oral argument videos here and here.)  Both cases were argued on the October calendar.

There is one other undecided case from that calendar — People v. Contreras, where, if the case is not mooted by new legislation, the court will address what constitutes the functional equivalent of life without the possibility of parole for juvenile offenders.  After argument, the court asked for supplemental briefing about the legislation and vacated submission, which reset the 90-day clock for filing opinions.  The case was resubmitted on November 28, when supplemental briefing was completed, and the court now has until the end of February to file its opinion (or dismiss the case as moot).

In Frierson, the question is:  What is the standard of proof for a finding of ineligibility for resentencing under Proposition 36?  (See People v. Arevalo (2016) 244 Cal.App.4th 836; cf. People v. Osuna (2014) 225 Cal.App.4th 1020)?  (First District, Division Two, Court of Appeal Justice Marla Miller is the pro tem.)

Hicks will decide whether the trial court erred when it refused to inform the jury at the retrial of a murder charge that defendant had been convicted of gross vehicular manslaughter in the first trial.  (Compare People v. Batchelor (2014) 229 Cal.App.4th 1102.)  (Fourth District, Division Three, Court of Appeal Justice Eileen Moore is the pro tem.)

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

December 25, 2017

Justice Cuéllar is hiring

Supreme Court Justice Mariano-Florentino Cuéllar is looking to hire a chambers attorney or law clerk.  The vacancy on Justice Cuéllar’s staff might have been created by the appointment last week of Victor Rodriguez to the Alameda County Superior Court.  Rodriguez has served as Cuéllar’s supervising staff attorney since 2015.

Of course, there’s another vacancy at the court, and that one is taking quite a long time to fill.  Today is Day 292 since Justice Kathryn Werdegar announced her retirement.

December 23, 2017

The appealability ticket to the Supreme Court

Few lawyers other than those of the appellate variety have much interest in appealability issues.  However, the Supreme Court is interested and a good appealability issue might win you a rare entrée to review in that court.

Just this week, the court decided an appealability issue in Kurwa v. Kislinger, and that was the second time it had opted to do so in just that one case.  Both times, the court found jurisdictional defects, but the most recent opinion tells the parties — and especially the lower courts — how to finally get an appeal heard in the case.

Kurwa isn’t the only instance of appealability on the docket, however.  Earlier this year, in Ryan v. Rosenfeld, the court decided that an order denying a statutory motion to vacate a judgment is appealable, and in Dhillon v. John Muir Health, the court held to be appealable a superior court order that granted an administrative mandate petition’s request that the matter be remanded for proceedings before an administrative body.  [Disclosure:  Horvitz & Levy was appellate counsel for John Muir Health in Dhillon.]  Also this year, the court granted review in K. J. v. Los Angeles Unified School District to decide whether the Court of Appeal has jurisdiction over an appeal from an order imposing sanctions on an attorney if the notice of appeal is brought in the name of the client rather than in the name of the attorney.

Appealability in criminal cases can also get the court’s attention.  Two years ago, the court in People v. Loper held a prisoner can appeal a superior court order rejecting a Department of Corrections and Rehabilitation recommendation that the prisoner’s sentence be recalled and that he be granted compassionate release based on his medical condition.

So, if you’re on the wrong end of a Court of Appeal appealability decision, don’t give up.  You might find a receptive audience at the Supreme Court.

December 22, 2017

Summary of December 20, 2017 conference report for civil cases

In its conference on Wednesday, December 20, 2017, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered depublished.

December 22, 2017

Justice Grodin on the Gerawan Farming case

Former Supreme Court Justice Joseph Grodin writes in depth for SCOCAblog about the court’s opinion in Gerawan Farming, Inc. v. Agricultural Labor Relations Board, which was one of a pair of victories the court gave to farm workers last month.  He concludes, “the present state of affairs is deeply disappointing.  The court’s opinion in Gerawan creates at least the possibility of jump-starting the potential created by California’s unique experiment in the fields.”

Besides his service on the Court of Appeal and Supreme Court, Justice Grodin is a long-time labor law expert and was an early member of the California Agricultural Labor Relations Board.

Gerawan Farming has indicated its intent to seek SCOTUS review.  The California Supreme Court yesterday denied Gerawan Farming’s motion to stay that court’s remittitur, which now should issue next week.

December 21, 2017

4-3 drug liability opinion might be a rehearing candidate because randomly selected pro tem justice is in the majority

In T. H. v. Novartis Pharmaceuticals Corp., a divided Supreme Court today holds a drug manufacturer might be liable for an inadequate warning label even if the drug that allegedly caused injury was later manufactured as a generic by a different company that had bought the rights to the brand-name drug.  The court’s 4-3 opinion by Justice Mariano-Florentino Cuéllar concludes, “If the person exposed to the generic drug can reasonably allege that the brand-name drug manufacturer’s failure to update its warning label foreseeably and proximately caused physical injury, then the brand-name manufacturer’s liability for its own negligence does not automatically terminate merely because the brand-name manufacturer transferred its rights in the brand-name drug to a successor manufacturer.”

Justices Ming Chin and Goodwin Liu, and pro tem Justice Louis Mauro of the Third District Court of Appeal, join Justice Cuéllar in the majority.  Justice Carol Corrigan writes a concurring and dissenting opinion, which is signed by Chief Justice Tani Cantil-Sakauye and Justice Leondra Kruger.  Justice Corrigan agrees a brand-name drug manufacturer can have warning-label liability even if the plaintiff was prescribed a generic drug produced by another company, but she would cut off that liability once the brand-name manufacturer has sold its product line.  She states, “Plaintiffs’ theory of ‘predecessor liability’ represents a substantial and unprecedented expansion of tort duties.”

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

The divided decision with a pro tem justice in the majority raises an institutional issue we’ve discussed before.  (Here, here, and here.)  Because pro tems are chosen on a mostly alphabetical basis, it is fair to speculate that the T. H. result would have been different if by happenstance, instead of Justice Mauro, the pro tem had been, say, Fourth District, Division One, Court of Appeal Presiding Justice Judith McConnell, who sat on the case argued immediately after T. H.

The decision also raises the question how the case got set for oral argument at all.  Both the court’s Operating Practices and Procedures and recent remarks by the Chief Justice suggest that argument in a case with a 3-3 split of the permanent justices would wait until the court was back at full strength.  Perhaps the permanent justices were divided 4-2 when the case was considered for argument and one of the justices later changed sides.  In fact, and this is probably way too much tea-leaves reading, that Justice Corrigan’s opinion attributes the liability theory adopted today to “plaintiffs” instead of to “the majority” could indicate her opinion was originally written as the court’s opinion for four justices and became a dissent only after one of the four defected.

Additionally, the pro tem justice being part of a 4-justice majority marks T. H. as a potential candidate for a rare transition rehearing.  If Governor Jerry Brown appoints and the Commission on Judicial Appointments confirms a new justice within the time for the court to grant rehearing, the new justice — not pro tem Justice Mauro — would rule on any rehearing petition.  Of course, this is Day 288 since former Justice Kathryn Werdegar announced her retirement and it might still be a while before her replacement is named.

December 21, 2017

Supreme Court overrules itself, limiting trial court fact-finding regarding prior convictions, and it finds forfeiture claim was forfeited

Overruling a 2006 decision in light of recent SCOTUS precedent, the Supreme Court in People v. Gallardo today restricts the fact finding a trial court may do in determining the nature of a criminal defendant’s prior conviction.  The court’s opinion by Justice Leondra Kruger holds that when it’s uncertain whether a prior conviction can be used as a sentence enhancement, the trial court “is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, [but] may not rely on its own independent review of record evidence to determine what conduct ‘realistically’ led to the defendant’s conviction.”

The court remands the case for the trial court to determine the nature of the defendant’s previous crime “based on the record of the [defendant’s] prior plea proceedings.”  Justice Ming Chin, writing separately and concurring in most of the majority opinion, disagrees about who should review the earlier record.  He says a jury, not the trial court, should do so.  “The proper remedy for a violation of defendant’s jury trial right is to give her that jury trial,” he writes.

The opinion also includes a Supreme Court practice tip, in which the Attorney General is hoisted by his own petard or is caught throwing rocks in a glass house (choose your own metaphor).  He argued that the defendant forfeited her challenge to the trial court’s excessive fact finding because she did not object to it in the trial court.  The Supreme Court refuses to consider the Attorney General’s claim, however, “for the simple reason that the Attorney General did not make his forfeiture argument to the Court of Appeal and the Court of Appeal did not address it.”  In other words, the forfeiture claim was forfeited.

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

December 20, 2017

Denying review, Supreme Court hands California Attorney General a victory in gas tax initiative case

The Supreme Court today denied review in Becerra v. Superior Court, and left standing the Court of Appeal’s decision that had rejected a challenge by an initiative proponent to the circulating title and summary prepared for the initiative by the State’s Attorney General, Xavier Becerra.  The initiative would repeal or amend various portions of the law that recently increased California gasoline taxes.

The court acted quickly on the proponent’s petition for review, which was filed just three weeks ago.  It usually takes the court at least five weeks to rule on a petition.

Not only did the court deny review, it also ordered published the Court of Appeal’s previously unpublished opinion.  It did so on the Court of Appeal’s recommendation after the Attorney General requested publication.  (The Court of Appeal had no jurisdiction to grant the Attorney General’s request because it had made its opinion immediately final.)  On publication requests, the Supreme Court almost always follows the Court of Appeal’s recommendation.

December 20, 2017

“How Secretive Money Is Influencing the Judicial System”

Alicia Bannon of the Brennan Center for Justice writes in Time about a new report by the Center.  “[W]e found that secretive interests have begun making unprecedented efforts to influence state supreme courts, with worrying implications for judicial independence and integrity.”

Related:  here, here, here, and here.

December 20, 2017

Drug manufacturer liability, determination of prior conviction opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in T. H. v. Novartis Pharmaceuticals Corp. and People v. Gallardo, which were both argued on the October calendar.  (Briefs here; oral argument videos here and here.)

T. H. raises the issue whether the brand name manufacturer of a pharmaceutical drug that divested all ownership interest in the drug may be held liable for injuries caused years later by another manufacturer’s generic version of that drug.  (Third District Court of Appeal Justice Louis Mauro is the pro tem.)

Gallardo will answer the question, was the trial court’s decision that defendant’s prior conviction constituted a strike incompatible with Descamps v. U.S. (2013) 570 U.S. __ (133 S.Ct. 2276) because the trial court relied on judicial fact-finding beyond the elements of the actual prior conviction?  (Second District, Division Two, Court of Appeal Justice Brian Hoffstadt is the pro tem.)

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

December 19, 2017

Summary of December 13, 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 December 13, 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

None.

Review Denied (with dissenting justices)

None.

Depublished

Living Rivers Council v. State Water Resources Control Board, S245303 – Review Denied and Depublished – December 13, 2017

In Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991, the Court of Appeal, First District, Division Five, affirmed an order denying Living Rivers Council’s petition for writ of mandate to compel the State Water Resources Control Board to rescind its approval of a policy designed to maintain water flows in coastal streams north of San Francisco.  The Board’s Revised Substitute Environmental Document (RSED) concluded that increased groundwater pumping was uncertain or unlikely. The Court of Appeal ruled the RSED was not inconsistent with the Board’s finding that groundwater pumping could have significant effects on the environment because a significant net reduction in flows was unlikely.  Additionally, the Court of Appeal held the RSED adequately described subterranean stream delineations as a potential mitigation measure and sufficiently explained why they were infeasible because the Board appropriately considered that subterranean stream delineations were unlikely to mitigate a potential increase in groundwater pumping.

The Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.

December 18, 2017

With appealability seemingly out of reach, the Supreme Court suggests a route out of the cul de sac

In Kurwa v. Kislinger, the Supreme Court today holds that the Court of Appeal was correct to dismiss a plaintiff’s appeal because the defendant’s cross-complaint remains pending, but also makes clear that all is not lost for the plaintiff.  This is Kurwa II.  The last time the case was before the court, four years ago, the court also found against appealability, for a different problem.

In this lawsuit that began in 2004 and in which the initial notice of appeal was filed in 2010, the plaintiff’s current dilemma arises from the defendant’s refusal to dismiss his cross-complaint and the trial court’s disclaimer of its ability to act further to create an appealable judgment.  To add insult to injury, plaintiff won his appeal in the Court of Appeal on the first go-round, only to have the victory wiped out by the Supreme Court’s non-appealability decision in Kurwa I.  With an obviously meritorious appeal and seemingly no way to have it heard, today’s unanimous opinion by Justice Leondra Kruger, however, offers plaintiff an escape from what the court terms “a legal cul de sac.”  The court says “the trial court does indeed have the power to take action” and remands the case for the trial court to allow the parties to “either proceed to judgment on the outstanding causes of action or dismiss those causes of action with prejudice.”

The court affirms the Second District, Division Five, Court of Appeal, but only with a significant qualification.  The Supreme Court reports that the Court of Appeal believed that “that unless and until [the defendant] . . . chooses to dismiss his [cross-complaint], there can be no final and appealable judgment,” a conclusion with which the Supreme Court disagrees.

December 15, 2017

Appealability opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Kurwa v. Kislinger, which was argued on the October calendar.  (Briefs here; oral argument video here.)

The issue in Kurwa is whether the plaintiff can take an appeal in the current posture of the litigation.  This is the second time this case has been before the court, both times regarding appealability.  (Fourth District, Division One, Court of Appeal Presiding Justice Judith McConnell is the the pro tem.)

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

December 15, 2017

Pro tems — and a recusal — announced for the January calendar

When the Supreme Court released its January calendar last week, half of the cases had pro tems to be named later.  Pro tems are needed because Governor Jerry Brown has not yet appointed retired Justice Kathryn Werdegar’s replacement.  (Today is day 282 since Werdegar announced her retirement, and the long-unfilled vacancy is wearing on the court.)

Yesterday the court disclosed the January pro tems, and there’s one more than expected.

In a death penalty case — People v. Daveggio and Michaud — Justice Carol Corrigan is now recused and Fourth District, Division Three, Presiding Justice Kathleen O’Leary will join previously announced Justice Stuart Pollak as the pro tem team.  Actually, the Supreme Court’s docket shows that O’Leary was appointed a pro tem more than a month before Pollak was, but it looked like Pollak was simply replacing O’Leary as the pro tem because there was — and still is — nothing on the docket indicating Justice Corrigan’s recusal.

Here are the other newly announced pro tems:

Regents of the University of California v. Superior Court:  First District, Division Two, Court of Appeal Justice James Richman.

In re Figueroa:  First District, Division Five, Court of Appeal Justice Mark Simons.

People v. Martinez:  Second District, Division Seven, Court of Appeal Justice John Segal.

In re Butler:  Second District, Division Eight, Court of Appeal Justice Laurence Rubin.

December 12, 2017

“Chief justice bemoans state Supreme Court vacancy” [Updated]

Chief Justice Tani Cantil-Sakauye spoke to the media yesterday about more than just her #MeToo moments.  Today’s Daily Journal [subscription] reports that she also said she’s anxious for Governor Jerry Brown to fill the Supreme Court’s “lengthy vacancy” (see here and here), which she claims has hampered the court.  Confirming something we’ve speculated about, the article quotes the Chief Justice, “‘It’s difficult to operate without a seventh justice,’ said Cantil-Sakauye, who said some cases are stuck due to 3-3 ties.”

Additionally, the Chief Justice commented again about federal immigration agents making arrests in state courts, an issue for which she has gained national attention since she wrote a letter to the administration accusing agents of “stalking undocumented immigrants in our courthouses.”  (See also here and here.)  She said she is “still hearing about ICE enforcement in courthouses.”

[Updates:

From Bob Egelko’s story in the San Francisco Chronicle about the Chief Justice’s meeting with the press:  “‘It’s difficult to operate without a seventh justice,’ the chief justice said.  She said the court has had to divide [retired Justice Kathryn] Werdegar’s former workload among its remaining justices, has found itself deadlocked on some cases, and has had to call on a succession of appellate court justices, chosen at random, to occupy the seventh seat at hearings for the past four months.”

California Chief Justice Expects More Death Penalty Lawsuits” on Capitol Public Radio, including brief audio of the Chief Justice during the meeting, in which the Chief Justice suggests that there will be more litigation before the Supreme Court about Proposition 66.

Related — Justice Werdegar’s retirement; method for selecting Court of Appeal justices; Proposition 66.]

December 11, 2017

“California’s chief justice has had her own #MeToo moments”

The Los Angeles Times’ Maura Dolan reports about Chief Justice Tani Cantil-Sakauye’s meeting today with reporters.  “Cantil-Sakauye, a former prosecutor, trial court judge and state appellate justice, suggested she may have suffered more serious gender discrimination than being called ‘honey’ and ‘sugar’ but declined to discuss it.  ‘I’ve had a few “me-toos” in the past, but I’m not telling them, at least not on the record,’ said Cantil-Sakauye.”

The article also states that the Chief Justice “confirmed that a state appellate justice who resigned Oct. 31 [Sixth District Court of Appeal Presiding Justice Conrad Rushing] had been under investigation for improprieties.”  (See last week’s San Jose Mercury News report about Rushing here.)

December 11, 2017

Supreme Court affirms death penalty for execution-style murder following liquor store robbery

The defendant in People v. Rices pleaded guilty to murdering an El Cajon liquor store owner and employee after robbing the store.  He also admitted to special circumstances that made him eligible for a death sentence, which a jury recommended and the Supreme Court today unanimously affirms.  The court’s opinion by Justice Ming Chin recounts some unusual counsel issues — defendant’s appointed lead counsel apparently misrepresented his qualifications to handle death penalty cases and another lawyer, appointed to be an advisory counsel concerning the defendant’s desire to keep the lead counsel, had spoken with a potential witness against the defendant — but finds no prejudicial error.  As with other direct automatic appeals in which the court has no choice but to address all arguments a defendant makes, the court finds against the defendant on numerous additional issues as well, including finding to be harmless error an ex parte communication between the trial judge and the jury during deliberations.

December 11, 2017

Incompetent criminal defendant can be rearrested and recommitted

In Jackson v. Superior Court, the Supreme Court today gives district attorneys some additional flexibility — but not a lot — in dealing with a criminal defendant who is incompetent to stand trial and who has been involuntarily committed to determine whether he or she is likely to regain competence.  The court’s unanimous opinion by Justice Goodwin Liu holds that, after release from commitment, the defendant can be arrested under refiled charges and recommitted.  However, “the court is not permitted to ignore the fact that the defendant has already been committed” — the first and second commitments combined cannot exceed three years, which is the maximum commitment period allowed by statute.  When that time is up, the defendant must be placed under a conservatorship or released.  So, if a defendant’s first commitment already maxed out the commitment time, “the trial court’s options would be limited to initiating . . . conservatorship proceedings or again ordering the defendant released.”

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

December 9, 2017

Solicitor General recommends against SCOTUS review of California Supreme Court gold mining opinion

Over 15 months ago, the California Supreme Court — in People v. Rinehartheld that California’s temporary ban on a particular method of gold mining pending adoption of suitable regulations is not preempted by federal law, including the Mining Law of 1872.  When the defendant petitioned the US Supreme Court for certiorari, that court invited the Acting Solicitor General to let the justices know the United States’ views about the case.  Earlier this week, and seven months after the invitation, the Solicitor General said the Court should deny certiorari.

The California Supreme Court said in Rinehart that it was “part[ing] company” with a 1998 Eighth Circuit decision.  But the Solicitor General says the two opinions do not conflict, even though he admits “the California Supreme Court rejected aspects of the Eighth Circuit’s reasoning.”

December 8, 2017

No conference held the week of December 4, 2017

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, 2017

Supreme Court announces January calendar — fifth consecutive with a vacancy [Updated]

Yesterday, the 274th day since Justice Kathryn Werdegar announced her retirement, the Supreme Court released its January calendar.  There will be eight more pro tem justices, necessitated by Governor Jerry Brown not having appointed Werdegar’s replacement yet.  (Using a mostly alphabetical selection system, only half of the January pro tem justices have been assigned at this point.)

It will be the fifth month in a row that the court has had to call on Court of Appeal justices to fill in.  By comparison, there were seven calendars with pro tems before Governor Brown named Justice Leondra Kruger in 2014 to fill retiring Justice Joyce Kennard’s seat, although Justice Kennard gave shorter notice of her retirement than did Justice Werdegar.

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

Regents of the University of California v. Superior Court:  Do California public institutions of higher education and their employees have a duty of care to their students while in the classroom to warn them of and protect them from foreseeable acts of violence by fellow students?  The court granted review in January 2016.  (The pro tem justice has not yet been assigned for this case.)

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism:  (1) May a motion to strike under the anti-SLAPP statute be brought against any claim in an amended complaint, including claims that were asserted in prior complaints?  (2) Can inconsistent claims survive an anti-SLAPP motion if evidence is presented to negate one of the claims?  The court granted review just eight months ago.  (Third District Court of Appeal Presiding Justice Vance Raye is the pro tem.  He was originally assigned as a pro tem on a December calendar case, but a colleague replaced him.)

People v. Buza:  Does the compulsory collection of a biological sample from all adult felony arrestees for purposes of DNA testing (Pen. Code, §§ 296, subd. (a)(2)(C); 296.1, subd. (a)(1)(A)) violate the Fourth Amendment to the United States Constitution or article I, section 13, of the California Constitution?  (Second District, Division Seven, Court of Appeal Presiding Justice Dennis Perluss is the pro tem.)
The court granted review nearly three years ago.  Actually, the court initially granted review in the case more than six years ago.  There is a complicated procedural story behind Buza and a related case, People v. Lowe, in which the court granted review more than three-and-a-half years ago and which has been fully briefed without argument since March 2015.
Additionally of interest, there are numerous amicus curiae briefs in Buza, including one by former Justice Joseph Grodin.

People v. DeHoyos:  Does the Safe Neighborhood and Schools Act [Proposition 47] (Gen. Elec. (Nov. 4, 2014)), which made specified crimes misdemeanors rather than felonies, apply retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not final until after that date?  What is the significance, if any, of the decision in People v. Conley (2016) 63 Cal.4th 646 on the issues in this case?  The court granted review in September 2015, and added the question about Conley in January of this year.  (First District, Division Five, Court of Appeal Justice Henry Needham, Jr., is the pro tem.)

In re Figueroa:  In this capital habeas corpus case, the court issued an order to show cause why petitioner is not entitled to relief because (1) material false evidence was admitted at the guilt phase of his trial, and (2) trial counsel rendered ineffective assistance.  The order to show cause was issued in September 2014, but briefing wasn’t completed until March of this year.  (The pro tem justice has not yet been assigned for this case.)
As with Buza, there’s interesting history on this case.  The original habeas corpus petition was filed over 15 years ago.  Four years later, however, the court granted leave to file an amended petition “as necessary as a result of the allegedly fraudulent work product of Habeas Corpus Resource Center (HCRC) Investigator Kathleen Culhane.”  Culhane was sentenced in 2007 to five years in prison for forgery, perjury, and filing false documents in multiple death penalty habeas cases, and, according to the Los Angeles Times, was unrepentant, saying that capital punishment is “a brutal legacy of lynching” and that “I cannot have remorse for a government that kills at midnight and invests millions of dollars in the process.”

People v. Daveggio and Michaud:  This is an automatic direct appeal from a September 2002 judgment of death.  The court’s website does not list issues for such appeals.  (First District, Division Three, Court of Appeal Justice Stuart Pollak is the pro tem.)

People v. Martinez:  Could defendant use a petition for recall of sentence under Penal Code section 1170.18 to request the trial court to reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379 effected by Proposition 47?  The court granted review in March 2016.  (The pro tem justice has not yet been assigned for this case.)

In re Butler:  Should the Board of Parole Hearings be relieved of its obligations arising from a 2013 settlement to continue calculating base terms for life prisoners and to promulgate regulations for doing so in light of the 2016 statutory reforms to the parole suitability and release date scheme for life prisoners, which now mandate release on parole upon a finding of parole suitability?  The court granted review 13 months ago.  (The pro tem justice has not yet been assigned for this case.)

[December 15 update: Pro tems — and a recusal — announced for the January calendar.]

December 8, 2017

Death penalty, criminal competency opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Jackson v. Superior Court and People v. Rices.  (Briefs here; oral argument videos here and here.)  These are the first opinions for cases argued on the October calendar.

Jackson involves the issue whether, after an incompetent defendant has reached the maximum three-year commitment provided for by law, the prosecution can initiate a new competency proceeding by obtaining dismissal of the original complaint and proceeding on a new charging document.  (First District, Division Three, Court of Appeal Presiding Justice William McGuiness is the pro tem.)

Rices is an automatic direct appeal from an August 2009 judgment of death.  (Fourth District, Division One, Justice Gilbert Nares is the pro tem.)

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

December 7, 2017

Supreme Court affirms death sentence of killer of young daughter and pregnant wife

The Supreme Court today affirms the death penalty in People v. Henriquez for a man who murdered his pregnant wife and 2-year-old daughter.  Among many other things, the court’s unanimous opinion by Justice Leondra Kruger rejects the defendant’s argument that the jury that convicted him was drawn from a jury pool in which African-Americans were unconstitutionally underrepresented.

December 6, 2017

Ninth Circuit denies habeas relief to California death row prisoner

In Rowland v. Chappell, the Ninth Circuit today refuses to grant habeas corpus relief to a prisoner whose 1988 death sentence the California Supreme Court affirmed 25 years ago.  The Supreme Court also denied habeas corpus petitions in 1994 and 1997.

The Ninth Circuit reviewed the Supreme Court’s work under a standard that it describes as “ ‘highly deferential’ ” to state courts and “ ‘difficult [for prisoners] to meet.’ ”  (See here.)  Even under that standard, however, the Supreme Court doesn’t always survive the Ninth Circuit’s scrutiny.

December 6, 2017

Death penalty opinion filing tomorrow

Finishing up its cases from the September calendar, the Supreme Court tomorrow morning will file its opinion in People v. Henriquez.  (Briefs here; oral argument video here.)

Henriquez is an automatic direct appeal from a June 2000 judgment of death.  (Fifth District Court of Appeal Justice Herbert Levy is the pro tem.)

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

December 4, 2017

After denying review under its old non-grant-and-hold policy, Supreme Court grants habeas corpus relief

Used to be that, instead of granting review and deferring action in a case raising a criminal law issue that was already before it in another matter, the Supreme Court would deny review, forcing the defendant to file a separate habeas corpus petition to take advantage of any favorable decision in the pending case.  The court changed its policy two years ago and now regularly issues grant-and-hold orders in criminal cases as in civil cases.  Today’s decision in In re Martinez is a remnant of the old policy.

The court’s opinion — by Justice Goodwin Liu, for himself and five other justices — grants habeas corpus relief to vacate a first degree murder conviction that was based on the defendant’s aiding and abetting a homicide committed by someone else.  The reversal is required because the jury was improperly instructed it could convict if it found merely that the murder was a “natural and probable consequence” of the defendant’s conduct and because the court cannot conclude beyond a reasonable doubt that the jury relied on a different, legally valid theory.

The defendant raised the instructional error issue on his direct appeal, but he lost.  When he petitioned the Supreme Court for review, the “natural and probable consequence” issue was before the court in another case, but that was before the grant-and-hold policy change, so the court denied review, albeit “without prejudice to any relief to which defendant . . . might be entitled after this court decides” the other case.  Later, the court held in the other case — People v. Chiu (2014) 59 Cal.4th 155 — that a natural and probable consequences theory cannot be a basis for first degree murder.

Justice Leondra Kruger writes a separate concurring opinion to advocate for overruling 1942 and 1966 Supreme Court opinions regarding the standard of review in habeas corpus cases.

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

December 4, 2017

Triple water rates might need to be approved by voters

In City of San Buenaventura v. United Water Conservation, the Supreme Court today holds a water conservation district’s groundwater pumping charge, which, as required by statute, is three times higher for non-agricultural use as it is for agricultural use, might trigger a state constitutional provision that would require voter approval of the charge.  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

The court’s opinion — by Justice Leondra Kruger, for herself and five other justices — concludes that the charge doesn’t fall under a constitutional provision prohibiting a charge for a “property related service” from exceeding “the proportional cost” of the service that is “attributable to the parcel” on which the charge is imposed.  The court does, however, find applicable another provision, which, like the first, was adopted by initiative.  That one requires voter approval for local government charges, except those charges that are limited to reasonable costs of providing a special benefit or service and that bear a “fair or reasonable” relationship to the benefit to the payor of, or the payor’s burden on, the government activity.  The court remands the case to the Court of Appeal to determine the fair-or-reasonable-relationship issue regarding this particular charge.

Justice Goodwin Liu writes a brief concurring opinion.  He says that the court should directly address whether the statutorily required triple rate for non-agricultural use survives the adoption of the constitutional provisions at issue.  Justice Liu concludes it does not.

The court affirms in part and reverses in part the Second District, Division Six, Court of Appeal.  It disapproves 2007 and 2013 decisions by the Sixth District.

December 2, 2017

Summary of November 29, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on November 29, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Montrose Chemical Corporation of California v. Superior Court, S244737 – Review Granted – November 29, 2017

In a published decision, Montrose Chemical Corporation of California v. Superior Court (2017) 14 Cal.App.5th 1306, the Court of Appeal, Second District, Division Three, granted in part and denied in part a petition for peremptory writ of mandate.  The trial court had granted a declaratory judgment that an insured corporation could not “electively stack” excess insurance policies—in other words, access any excess policy issued in any policy year as long as the lower-lying policies for the same policy year had been exhausted—but it could “horizontally stack” the policies—thus accessing higher-level excess policies only when lower-level policies had been exhausted for all policy years.  While the Court of Appeal agreed that elective stacking was inconsistent with the policies of at least some of the excess policies at issue and not compelled by California Supreme Court authority, it decided that the insured corporation need not horizontally exhaust the lower-lying policies at each coverage level and for each year before higher-level policies could be accessed.  Rather, the court determined that the sequence in which the policies could be accessed must be decided on a policy-by-policy basis, taking into account the relevant provisions of each policy.

This case presents the following issue: When continuous property damage occurs during several periods for which an insured purchased multiple layers of excess insurance, does the rule of “horizontal exhaustion” require the insured to exhaust excess insurance at lower levels for all periods before obtaining coverage from higher level excess insurance in any period?

OTO, L.L.C. v. Kho, S244630 – Review Granted – November 29, 2017

In a published decision, OTO, L.L.C. v. Kho (017) 14 Cal.App.5th 691, the Court of Appeal, First District, Division One, reversed the trial court’s denial of an employer’s petition to compel arbitration of an employee’s claim for unpaid wages, concluding that the arbitration proceeding outlined by the arbitration agreement satisfied the requirements of affordability and accessibility under Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II) because the employer would pay the costs of arbitration and the proceeding would resemble civil litigation. Thus, although the employer’s arbitration agreement waived the various advantageous provisions of the Labor Code governing the litigation of a wage claim—specifically, a Berman hearing pursuant to Labor Code section 98— the agreement was not substantively unconscionable and was enforceable.

The questions presented are: (1) Was the arbitration remedy at issue in this case sufficiently “affordable and accessible” within the meaning of Sonic II to require the company’s employees to forego the right to an administrative Berman hearing on wage claims? (2) Did the employer waive its right to bypass the Berman hearing by waiting until the morning of that hearing, serving a demand for arbitration, and refusing to participate in the hearing?

Stoetzl v. State of California, S244751 – Review Granted – November 29, 2017

In a published decision, Stoetzl v. State (2017) 14 Cal.App.5th 1256, the Court of Appeal, First District, Division Four, affirmed in part a judgment that the federal standard for determining what constituted compensable “hours worked” governed a coordinated class action by current and former employees.  The Court of Appeal affirmed the judgment as to the subclass of represented employees because the parties had agreed to a memorandum of understanding (MOU) unambiguously providing that employees were working under the federal Fair Labor Standards Act (FLSA) and the Legislature approved and enacted the MOU into law.  However, the court reversed with regard to the subclass of unrepresented employees, holding that California law applied because the employees’ pay scale manual, which contained language from the FLSA, was not a legislative enactment and was superseded by the California Industrial Wage Commission’s Wage Order No. 4.

This case includes the following issue: Does the definition of “hours worked” found in the Industrial Wage Commission’s Wage Order No. 4, as opposed to the definition of that term found in the federal FLSA, constitute the controlling legal standard for determining the compensability of time that correctional employees spend after signing in for duty and before signing out, but before they arrive at and after they leave their actual work posts within a correctional facility?

Review Denied (with dissenting justices)

None.

Depublished

None.

December 2, 2017

Water rate, aider-and-abettor opinions filing Monday

On Monday morning, the Supreme Court will file opinions in City of San Buenaventura v. United Water Conservation and In re Martinez.  (Briefs here; oral argument videos here and here.)  After Monday, there will be just one case without an opinion from the September calendar, and Monday is the last regular filing day within the 90-day period for City of San Buenaventura and Martinez.

In City of San Buenaventura, the court will answer these questions:  (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26?  (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?  (Fourth District, Division One, Court of Appeal Justice Joan Irion is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

Martinez will decide whether petitioner is entitled to relief under People v. Chiu (2014) 59 Cal.4th 155.  (Second District, Division One, Court of Appeal Justice Jeffrey Johnson is the pro tem.)

The issue involved in Martinez has divided the court before.  Chiu concerned “aider and abettor” culpability under the “natural and probable consequences” doctrine.  The court split 4-3 in that case.  Also, one of Justice Goodwin Liu’s separate statements dissenting from the denial of review was in a case involving the “natural and probable consequences” doctrine.  (The separate statement drew the attention of the Legislature.)  However, it’s possible that the Martinez opinion will avoid the fault lines between the justices.

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

November 30, 2017

Gas tax initiative case to the Supreme Court

The proponent of an initiative to repeal or amend various portions of the law that recently increased California gasoline taxes asked the Supreme Court for help this week.  The proponent — Assemblyman Travis Allen — didn’t like the circulating title and summary that the State’s Attorney General, Xavier Becerra, prepared for the initiative.  He prevailed on a challenge in the superior court, but the Court of Appeal reversed two weeks ago.  Now, he wants the Supreme Court to review the Court of Appeal decision — Becerra v. Superior Court.  Meanwhile, other similar initiatives are in progress.

The Supreme Court regularly interprets initiatives, like it did today, and adjudicates the validity of initiatives, both before and after voters pass them.  Other times, as in Becerra, the court is asked to decide issues regarding the mechanics of putting an initiative on the ballot.

November 30, 2017

Taking a clunker without the owner’s permission might be just a misdemeanor

If you steal a cheap car — one worth $950 or less — it’s a misdemeanor under Proposition 47, the 2014 initiative passed to reduce punishment for certain theft- and drug-related crimes.  And, if you were serving a felony sentence for stealing a cheap car when Proposition 47 took effect, you could be eligible for a sentence reduction.  The Supreme Court today in People v. Page concludes that those principles apply not just to grand theft but also to the crime of taking or driving a vehicle without the owner’s consent if done with the intent to permanently deprive the owner of possession and if not only driving after the theft.  The court’s unanimous opinion by Justice Leondra Kruger holds that the crime is theft of property worth $950 or less, a criteria for possible resentencing under the initiative.

The court says it’s modifying the judgment of the Fourth District, Division Two, Court of Appeal, but the opinion really counts as a reversal.  The Court of Appeal — as did the superior court — found the defendant’s crime could not qualify for resentencing.  The Supreme Court concludes the categorical exclusion of the crime from Proposition 47 was wrong and gives the defendant a chance to establish the stolen car’s value.

The same Court of Appeal is also a winner today, however.  The Supreme Court’s opinion favorably cites and quotes a decision by a different panel of justices of the Fourth District, Division Two, that had later reached the opposite conclusion of the Page Court of Appeal opinion.  (The author of the effectively reversed Page opinion dissented from the opinion that is given props today.)  The later opinion is a grant-and-hold case, on hold for Page itself.  And, yes, that opinion is citeable despite review having been granted.

The court disapproves two other grant-and-hold cases — 2016 opinions from the Third and Fifth Districts.

November 28, 2017

The Supreme Court’s execution protocol might soon be relevant again

Now that Proposition 66 — the initiative to speed up executions in California — has taken effect, albeit with one major exception, there is speculation when the next death sentence will be enforced.  Bob Egelko in the San Francisco Chronicle (“Death penalty foe expects ‘wave’ of California executions“) and Maura Dolan in the Los Angeles Times (“Pace of executions in California may be up to Gov. Jerry Brown“) have recently examined how soon the state might kill a murderer for the first time since 2006.  Because it might not be long, it’s worth looking at the Supreme Court’s unique place in the execution process.

The court’s role in reviewing a death penalty judgment is fairly well known.  It automatically and directly hears appeals from any death sentence.  It also considers post-appeal habeas corpus petitions from death row prisoners, although Proposition 66 now requires those petitions to first be determined by the superior court.  Less familiar is the court’s involvement when an execution is imminent.

Dolan’s article notes that if Governor Brown wants to commute a condemned prisoner’s death sentence, he might need the consent of four Supreme Court justices.  As we’ve noted, that consent is required by the state constitution if the Governor wants to “grant a pardon or commutation to a person twice convicted of a felony.”  (See, recently, here.)

The court’s justices are also on call the day (or night) of a scheduled execution.  In his memoir, former Chief Justice George described the “customary practice” the court followed in the hours before a 1992 execution, when he was a new associate justice:

[T]he seven justices of our court, in accordance with the court’s long-established policy, assembled in the Chief Justice’s chambers, along with a few staff attorneys—usually persons who were tracking the particular case.  We gathered, always, in order to remain immediately accessible in the event our court would be called to rule upon any last-minute stay application filed in the California Supreme Court.  To facilitate this eventuality, in case there was a filing, the execution chamber in San Quentin Prison . . . was equipped with three telephone lines—one to the governor in the event he chose to act on a last-minute application for a reprieve, a second line to our court, and a third line available for communication with the federal courts or other persons.

. . . . . . . . . . . . . . . . .

At 6:07 a.m. our court, through the open phone line that had been hooked up between the execution chamber and the Chief Justice’s chambers, received the inquiry from the associate warden over the hotline that was customary during the course of such a night’s events.  This was always the language that the associate warden would direct to our court as we were seated around the Chief Justice’s conference table.  “Is there any matter now pending before the California Supreme Court that would prevent the execution from going forward?”  Then, again following our customary routine, the clerk of our court glanced at the Chief Justice and then at the other assembled justices, and upon receiving a negative nod of the head from each of us, responded to the associate warden with the word “no.”  The associate warden soon came on the line again and proceeded to give us all—for some reason or other, and I don’t quite know why—a running account over the phone line of each event in the execution protocol as it took place. . . .  Then, after what seemed like a very lengthy period but I believe in Harris’ case was only 14 minutes—during which not a single word was uttered by anyone in the Chief Justice’s chambers—the silence was perforated by the associate warden’s words, “Flat line,” which indicated the medical personnel had verified that the EKG showed no more heartbeat and that the execution of Robert Alton Harris had been carried out at 6:21 a.m.  When that was done, we all got up, went our separate ways, and quietly left to go home and get a bit of sleep as it was getting light outside after a very long night.

. . . . . . . . . . . . . . . . .

Each justice had been furnished with a notebook prepared by the clerk containing contact information for each of the justices and tracking attorneys and clerks in case of unexpected absences or early departures, and also for various federal courts and prosecutorial and defense offices.  There were persons in the clerk’s office who specialized in handling capital cases, including Mary Jameson, a very able person in charge of the unit involved in receiving transcripts, communicating with the attorney general and defense counsel during the course of automatic appeals and writ proceedings, and then setting up the liaison that was involved on execution nights.

. . . . . . . . . . . . . . . . .

Of course, when I became Chief Justice I had to realize that, although there wasn’t that much added responsibility in terms of presiding over this type of late-night conference, it still added a bit more solemnity to it for me, knowing this was a function that I was presiding over, that I had a responsibility for, and that I had to, with a nod of my head, communicate the go-ahead to the clerk, who in turn verbalized it to the associate warden at the other end of the line in the execution chamber.

The protocol might not be exactly the same for the next execution, whenever it might come, but the court will likely soon need to prepare for a ritual it hasn’t engaged in for almost 12 years.

November 27, 2017

Summary of November 21, 2017 conference report for civil cases

In its conference on Tuesday, November 21, 2017, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered depublished.

November 27, 2017

Farm workers win in two Supreme Court cases

The Supreme Court today hands farm workers and the United Farm Workers of America victories in two unanimous related opinions — Gerawan Farming, Inc. v. Agricultural Labor Relations Board and Tri-Fanucchi Farms v. Agricultural Labor Relations Board.  Both opinions are written by Justice Goodwin Liu.  (Here and here.)

In Gerawan Farming, the court upholds against constitutional attacks a mandatory mediation and conciliation process that the Legislature added in 2002 to the Agricultural Labor Relations Act.  Under the process, if the grower employer and the union reach an impasse, a neutral mediator may resolve disputed terms and submit a proposed contract to the Agricultural Labor Relations Board, which can then impose the contract on the parties.  The Gerawan Farming opinion also rejects the grower’s assertion of a defense that the union had abandoned its employees and had thus forfeited its representative status.  The court concludes, “the Legislature intended to reserve the power to decertify labor organization representatives to employees and labor organizations alone.”

The Tri-Fanucchi Farms opinion relies on Gerawan Farming to reject the grower’s abandonment defense.  It also upholds an ALRB order requiring the grower to pay its employees make-whole relief because of its refusal to bargain with the UFW.

In Gerawan Farming, the court reverses the Fifth District Court of Appeal.  In Tri-Fanucchi Farms, the court affirms the same court’s rejection of the grower’s abandonment defense, but reverses the appellate court’s rejection of the ALRB’s make-whole relief.

November 27, 2017

Failure to issue requested statement of decision can be harmless error

“Harmless error” is the place where many an appeal — both civil and criminal — goes to die, even when “serious constitutional error” is established.  The Supreme Court today ensures that the gates to that precarious site are kept wide open.

Leaning on constitutional and statutory provisions requiring an error to be prejudicial before a new trial can be ordered, the court in F.P. v. Monier holds that a superior court’s failure to issue a requested statement of decision is not reversible per se.  The court’s unanimous opinion by Justice Ming Chin reviews the history of the statement-of-decision statute and concludes that the failure “is subject to harmless error review.”  The court states that some of its prior decisions, which suggest the error is reversible per se, but “which fail to mention, let alone discuss, the constitutional harmless error provision, do not offer a sound basis for a rule of automatic reversal.”

The court affirms the Third District Court of Appeal.