August 1, 2014

Challenge to anti-Citizens United ballot measure before the Supreme Court

It’s not quite a staple for the Supreme Court table, but challenges to election initiatives do occasionally land on the docket.  The most recent example is an original writ petition filed Friday to take Proposition 49 off this November’s ballot.

Proposition 49 was placed on the ballot by the Legislature’s passage of SB 1272  and Governor Brown allowing it to become law without his signature.  If approved, the ballot measure would encourage — in a strictly advisory and nonbinding way — enactment of a constitutional amendment to overturn the United States Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission (2010) 558 U.S. 310.  The initiative asks the voters to answer this question:  “Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?”

Last week, opponents of Proposition 49 filed a writ petition – Howard Jarvis Taxpayers Association v. Bowen — in the Third District Court of Appeal to block a vote on the initiative.  This Thursday, the court denied the writ petition by a 2-1 vote.  The dissenter, Presiding Justice Vance Raye, believes “Proposition 49 is clearly invalid and thus review prior to the election is required.”  The next day, the opponents filed a new writ petition — not a petition for review — in the Supreme Court.

According to the docket, the Court of Appeal writ petition informed of an August 11 printing deadline.  Presumably, the Supreme Court writ petition does the same.  Under those circumstances, the Supreme Court will likely take some action next week.

August 1, 2014

Jurors behaving badly in death penalty cases

Yesterday, the Supreme Court reversed a death penalty judgment because of jury misconduct, the second time it did so within a month.  In yesterday’s decision — People v. Hensley — the court found prejudicial misconduct during the penalty phase of the trial when a juror consulted his pastor during deliberations.  A little over three weeks earlier, in People v. Weatherton, the court concluded a juror’s prejudgment of the case had impermissibly infected the guilt phase.  Both opinions were unanimous and authored by Justice Corrigan.

The Hensley court distinguished a 10-year-old, 4-3 Supreme Court decision — People v. Danks (2004) 32 Cal.4th 269 — in which the court had affirmed a death judgment despite evidence that two jurors had consulted their pastors.  The Daily Journal’s Emily Green reports today [subscription required] that the defense attorney in the Danks case is not happy.  Counsel is quoted as saying that the error in Danks was “more egregious” than in Hensley and that, “I’m not minimizing the error [in Hensley], but I think this is complete hypocrisy.”  Justices Baxter, Werdegar, and Chin were in the majority in both Hensley and Danks.

According to Green’s article, before Weatherton, the Supreme Court had not reversed a death judgment in two years.

August 1, 2014

Assumption of the risk, two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Gregory v. CottPeople v. Capistrano, and People v. Carrasco.  Gregory and Capistrano were argued on the court’s early-May calendar and are the last from that session awaiting decision.  Carrasco was argued on the late-May calendar.

In Gregory, the court will decide whether the doctrine of primary assumption of the risk bars the complaint for damages brought by an in-home caregiver against an Alzheimer’s patient and her husband for injuries the caregiver received when the patient lunged at her.

Capistrano is an automatic appeal from a January 1998 judgment of death.  Carrasco is an automatic appeal from a February 1999 judgment of death.

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

July 31, 2014

Summary of July 30, 2014 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, July 30, 2014.  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

Grupp v. DHL Express, S218754—Review Granted & Held—July 30, 2014

The plaintiff, on behalf of the State of California, alleged that defendant DHL Express charged the State for airplane fuel when packages were ground-shipped, improperly charged the state a diesel fuel surcharge for ground deliveries, and fraudulently represented its routes and expenses.  The plaintiff sought damages under the False Claims Act (Gov. Code, § 12651, subd. (a)(1), (2) & (3)).  The trial court granted DHL’s motion for judgment on the pleadings and dismissed the action.

The Court of Appeal, Second Appellate District, Division Two, held in a published opinion that plaintiff’s action was preempted by the federal Airline Deregulation Act of 1978 (49 U.S.C. § 41713(b)(1)) (Deregulation Act) and Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501(c)(1)) (FAAAA) because those statutes preempt any state law affecting the price, route, or service of an air or motor carrier.

The Supreme Court granted review and ordered briefing deferred pending consideration and disposition of a related issue in People ex rel. Harris v. Pac Anchor Transportation, Inc., S194388, which was decided on July 28, 2014.  In Harris, the Court concluded that the FAAAA did not preempt the People’s Unfair Competition Law action against the defendant trucking company for alleged violation of state labor and insurance laws.

In re Transient Occupancy Tax Cases, S218400—Review Granted—July 30, 2014

The trial court concluded that under the plain language of San Diego’s tax on transients ordinance (San Diego Mun. Code, § 35.0101, subd. (a) (TOT)), online travel companies do not have TOT obligations or liability.  The ordnance provides:  “For the privilege of Occupancy in any Hotel located in the City of San Diego, each Transient is subject to and shall pay a tax in the amount of six percent [ ] of the Rent charged by the [hotel proprietor].” The ordinance defines a “transient” as a person who “exercises Occupancy, or is entitled to Occupancy, . . . for a period of less than one [ ] month.” (San Diego Mun. Code, § 35.0102.)

The Court of Appeal, Fourth District, Division One, affirmed based on the ordinance’s plain language.  It concluded the only persons potentially liable under the TOT are transients and hotel operators.

Review Denied (with dissenting justices)

Thieriot v. Wrapnews, S218835—Review Denied [Werdegar, J., voting for review]—July 30, 2014

This anti-SLAPP case presented the following issues:  (1) whether the plaintiff filed a complaint based on protected activity, and (2) whether the plaintiff demonstrated a probability of prevailing.  The defendant, an online publication, published an article stating that the plaintiff, the executive producer of a documentary, had filmed the documentary in Mexico without government authority and then fled the country with the movie footage and equipment.  The plaintiff sued for defamation and false light invasion of privacy, alleging that the article’s allegations were false.

The trial court granted the anti-SLAPP motion and dismissed the complaint, ruling that, in publishing the article, the defendant was exercising its First Amendment right to free speech and that the plaintiff failed to meet her burden.  The Court of Appeal, Second Appellate District, Division Four, reversed in an unpublished opinion, holding the plaintiff presented sufficient evidence to show a probability of prevailing.

Depublished

None.

July 31, 2014

Governor says Latino descent a plus, lack of judicial experience not a negative in Cuéllar nomination

A reporter asked Governor Brown at a recent press conference whether it was a factor in his choice of Professor Mariano-Florentino Cuéllar for the Supreme Court that Cuéllar is Latino.  She also asked whether the governor was concerned about Cuéllar’s lack of judicial experience.  Brown answered yes to the former and no to the latter.

The Governor said he is “not unaware of the diversity of California and the growing importance of people” of Latin American descent.  “When 50 percent of the kids [in] kindergarten through 12th grade are of Latin descent,” Brown continued, ”it’s important that they see in all the positions of power people who[m] they identify with.”  He also said that, in advance of his trip to Mexico, he was “very glad” that he “was able to appoint a Mexican immigrant.”

The Governor was quick to add that Cuéllar “is a very accomplished individual” and praised him as a “brilliant” and “very even-tempered person.”  Brown said he read the first and last chapters of Cuéllar’s Ph.D. dissertation and was very impressed by it.  Also, noting Cuéllar’s law school alma mater, which is the same as Justice Goodwin Liu’s, Brown joked that he has “yet to appoint a non-Yale graduate to the Supreme Court” during his second stint as governor.

Besides the Yale law degree, Cuéllar shares with Liu a non-judicial background.  Brown said that Cuéllar not having judicial experience is of no concern to him.  “Neither did Earl Warren, nor Chief Justice Roger Traynor,” the Governor said, “nor did [William O.] Douglas, nor did [Hugo] Black.”  (Not to be too picky, but Black did serve briefly and part time as a police court magistrate in his early 20′s.)

July 31, 2014

Cuéllar confirmation hearing set for August 28

On Thursday, August 28, 2014, the Commission on Judicial Appointments will hold a hearing on Governor Brown’s nomination of Professor Mariano-Florentino Cuéllar to the California Supreme Court.  The Commission members are Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, and soon-to-retire Second District Court of Appeal Presiding Justice Joan Dempsey Klein.

After that hearing, which is scheduled for 9:00 a.m., the Commission will evaluate three Court of Appeal nominations.  (They’re all nominations, rather than appointments, because all will fill positions with terms expiring this January.  Also, because they are nominations, we believe that these confirmation hearings all must be held after August 15 and before September 15.  At least, that’s how we read the state constitution.)

The hearing on Cuéllar’s nomination is likely to be televised on the California Channel; the hearings for Chief Justice Cantil-Sakauye and Justice Liu were.

July 30, 2014

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Hensley, an automatic appeal from an October 1995 judgment of death.  Hensley was argued on the early-May calendar.

Besides Hensley, two other cases from the early-May calendar do not have opinions yet — Gregory v. Cott and People v. Capistrano.  To comply with the 90-day rule, the court will file those opinions on Monday.

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

July 25, 2014

UCL/FAAAA preemption opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People ex rel. Harris v. Pac Anchor Transportation, Inc.  The case, which was argued on the late-May calendar, raises the issue whether an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), that is based on a trucking company’s alleged violation of state labor and insurance laws, is “related to the price, route, or service” of the company and, therefore, preempted by the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501).

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

 

July 24, 2014

Summary of July 23, 2014 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, July 23, 2014.  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

DKN Holdings v. Faerber, S218597—Review Granted, Issues Limited—July 23, 2014

The lessor of a commercial property brought an action against three co-leasees for past due rents.  The lessor dismissed without prejudice two of the parties and received a $3 million judgment against the third party which remains unsatisfied.  The lease specified all lessees were “jointly and severally responsible.”  The lessor then brought the present action against the other two lessees for the unpaid rent.  The trial court sustained the two lessees’ demurrers without leave to amend.

In a published opinion, DKN Holdings LLC v. Faerber (2014) 225 Cal.App.4th 1115, the Court of Appeal, Fourth District, Division Two, affirmed.  It held “the complaint does not and cannot state a cause of action against [the lessees] for monies due under the lease, because [the lessor’s] claims against [the lessees] in the present action are barred by the claim preclusion aspect of the res judicata doctrine.”

In granting review the Supreme Court limited the issues to the following: (1) Whether parties that are jointly and severally liable on an obligation can be sued in separate actions, and (2) whether the opinion of the Court of Appeal conflicts with the opinion of this court in Williams v. Reed (1957) 48 Cal.2d 57.

People v. Safety National Casualty Insurance Co., S218712—Review Granted—July 23, 2014

Safety National Casualty Company executed a bail bond on behalf of Eshaddai Bent in the amount of $25,000.  When Bent failed to personally appear at a pretrial conference, the trial court ordered the bail amount forfeited. Safety National moved to vacate the forfeiture, and the trial court denied that motion.

In a published opinion, People v. Safety National Casualty Insurance Co. (2014) 225 Cal.App.4th 438, the Court of Appeal, Second District, Division Eight, reversed, ordering the trial court to vacate the bond forfeiture. The Court of Appeal held: (1) the statement “bail will stand” did not equate to an order for the defendant to appear at the next hearing; (2) the conference in question was not a “readiness” conference which requires the defendant’s presence under California Rules of Court, Rule 4.112; and (3) case law did not require the defendant’s presence under Penal Code section 977. With the defendant not being required to attend by law or by court order, the Court of Appeal determined the order forfeiting the bond amount was improper, and should be vacated.

The questions presented are whether the trial court abused its discretion in ordering the bond amount forfeited, or whether the forfeiture was proper in light of the defendant’s absence at the pretrial conference.

deSaulles v. Community Hospital of the Monterey Peninsula, S219236—Review Granted—July 23, 2014

Plaintiff, an employee of the defendant hospital, brought suit alleging seven causes of action.  The parties entered a settlement agreement where the defendant paid $23,500 in exchange for dismissal with prejudice of two of plaintiff’s claims.  As to her remaining causes of action, the trial court granted summary adjudication in favor of defendant as to one, and then ruled in defendant’s favor on the remainder.  After entry of judgment, both parties moved for costs as the “prevailing party” under Code of Civil Procedure section 1032. The trial court ruled the defendant was the prevailing party, granting its motion for $12,731.92 in costs, and denying the plaintiff’s motion.

In a published opinion, deSaulles v. Community Hospital of Monterey Peninsula (2014) 225 Cal.App.4th 1427, the Sixth District Court of Appeal reversed, holding that “since the parties’ settlement was silent regarding costs, [the defendant’s] payment of $23,500 triggered mandatory costs as a ‘net monetary recovery’ under the plain language of the statute.”

The question presented is whether an award of costs to either party as the “prevailing party” was proper, given the settlement award to plaintiff despite judgment in favor of defendant on all the remaining claims.

Review Denied (with dissenting justices)

Imburgia v. DIRECTV, S218686—Review Denied [Baxter, J., voting for review]—July 23, 2014

The plaintiff filed a class action against DIRECTV on a variety of grounds, alleging DIRECTV was improperly charging its customers early termination fees. DIRECTV moved to stay or dismiss the action, decertify the class, and compel arbitration based on the arbitration provision in its consumer agreement. The trial court denied DIRECTV’s motion.

In a published opinion, Imburgia v. DIRECTV, Inc. (2014) 225 Cal.App.4th 338, the Court of Appeal, Second District, Division One, affirmed the trial court’s ruling holding that “the parties’ entire arbitration agreement is unenforceable, pursuant to the agreement’s express terms, because the law of plaintiffs’ state would find the class action waiver unenforceable.”

The question presented was whether the motion to compel arbitration was properly denied based on the parties’ contract and prevailing law.

Depublished

None.

July 23, 2014

Sentencing, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in two criminal law cases, both of which were argued on the early-May calendar.

In People v. Whitmer, the court is faced with the issue whether the defendant was properly sentenced on multiple counts of grand theft or whether his multiple takings constituted a single offense under People v. Bailey (1961) 55 Cal.2d 514.

People v. Boyce is an automatic appeal from a September 2000 judgment of death.

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

July 22, 2014

Stanford law professor Mariano-Florentino Cuéllar nominated to Supreme Court [UPDATED]

Governor Brown this morning announced the nomination of Mariano-Florentino Cuéllar to the Supreme Court.  Cuéllar is a law professor at Stanford.  His was among the names being mentioned for the court.  [UPDATE:  Cuéllar was reported to have been on the governor's short list in 2011 of possible replacements for Justice Carlos Moreno.  That appointment went to Goodwin Liu.]

Although announced today, Cuéllar will not join the court for over five months, because he is being nominated to fill the vacancy that will be created by Justice Marvin Baxter’s retirementFirst, he must be confirmed by the Commission on Judicial Appointments and then by the voters at the November election.  If both occur, he will take his seat when Justice Baxter’s term expires on January 5, 2015.Cuellar

The governor still has one high court vacancy to fill, an appointee to replace Justice Joyce Kennard.  Because of the different ways that Justices Baxter and Kennard chose to leave their positions, Justice Kennard’s successor could be seated on the court before Cuéllar.

With the nomination of Cuéllar, Governor Brown continues his trend (if two is a trend) of appointing northern California law professors in their early 40′s to the Supreme Court.  Cuéllar is 41.  Justice Goodwin Liu, who was appointed almost three years ago to the day, was teaching at UC Berkeley’s law school.

According to the governor’s press release, Cuéllar was born in Matamoros, Mexico, and for a number of years walked across the border each day to attend school in neighboring Brownsville, Texas.  At age 14, he moved with his family to the Imperial Valley of California.  His undergraduate degree is from Harvard College, he graduated from Yale Law School, and he earned a Doctor of Philosophy degree in political science from Stanford University, where he started teaching in 2001.  Cuéllar served as special assistant to President Obama for Justice and Regulatory Policy at the White House Domestic Policy Council and was co-chair of the Obama-Biden Transition’s Immigration Policy Working Group.  He served as a law clerk to Ninth Circuit Judge Mary M. Schroeder and was a senior advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury from 1997 to 1999.  Cuéllar is married to U.S. District Judge Lucy H. Koh of the Northern District of California.

July 18, 2014

Summary of July 16, 2014 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, July 16, 2014.  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

Horiike v. Coldwell Banker Residential Brokerage Company, S218734—Review Granted—July 16, 2014

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

In this case, the salesperson misinformed the buyer of the amount of living area insisting there were 15,000 square feet of living space when he knew there were less than 9,500.  After completing the property transaction, the buyer discovered the misinformation and filed a complaint against both the brokerage company and the salesperson for, among other things, breach of fiduciary duty.

The trial court found in favor of the salesperson, holding that although the salesperson made a false representation of material fact, he was not liable since he “honestly believed, and had reasonable grounds for believing, the representation was true when he made it.”

In a published opinion, Horiike v. Coldwell Banker Residential Brokerage Company, B246606, the Court of Appeal, Second District, Division Five, reversed and remanded.  The Court cited Civil Code section 2079.13, subdivision (b) which states, “[t]he agent in the real property transaction bears responsibility for his or her associate licensees who perform as agents of the agent.  When an associate licensee owes a duty to any principal, or to any buyer or seller who is not a principal, in a real property transaction, that duty is equivalent to the duty owed to that party by the broker for whom the associate licensee functions.”

Accordingly, since the salesperson was an associate licensee acting on behalf of the brokerage company, he owed the same fiduciary duty owed by the broker.

Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., S218497—Review Granted—July 16, 2014

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

Under Health and Safety Code section 1371.4, subdivision (e), an HMO must reimburse physicians for emergency health care services provided to its enrollees even when the physicians are not under contracts to the HMO’s.  In this case, the defendant HMO delegated its health care obligations to an IPA, making the IPA liable for any payments to the physicians.  When the IPA failed to make payments because of financial hardship, the physicians sought payment from the HMO.  When the HMO failed to reimburse the physicians, they sued the HMO for negligent delegation of its responsibility to the IPA.

In a published decision written by Justice Walter Croskey, the Court of Appeal, Second District, Division Three, held the HMO liable to the physicians on the ground that an HMO has a duty not to delegate its obligation to reimburse emergency physicians to an IPA it knows or has reason to know will be unable to pay.

Review Denied (with dissenting justices)

None.

Depublished

None.

July 16, 2014

The Judicial Council’s administrative arm will no longer be known as the “Administrative Office of the Courts”

The much-maligned Administrative Office of the Courts (AOC) is no more.  Well, sort of.  The Daily Journal[subscription required] reported recently that the Judicial Council voted to stop using the title “Administrative Office of the Courts” when referring to the Council’s administrative arm.  According to leaders of the judicial branch, the name had become an obstacle and a source of confusion during budget negotiations.  The Daily Journal quotes recently retired AOC director Steven Jahr as saying the name gave the misimpression that the AOC functions separately from the Judicial Council and caused lawmakers to conclude incorrectly that the AOC had “direct authority over trial court operations.”

All that may be true.  But, as we have often noted, for several years the AOC has been a lightning rod for critics of centralized court administration in California.  It is therefore not too surprising that those critics have been underwhelmed by what they perceive to be the current effort at “‘[r]ebranding.’”  The Daily Journal quotes Judge Maryanne Gilliard, a leader of the Alliance of California Judges, the AOC’s longtime critic, as saying:  “‘The fact that they are dumping their name should be a wakeup call that instead of just a name change we need a regime change.’”

The Daily Journal piece notes that valid criticisms concerning inefficiency and unaccountability have been leveled at the AOC in recent years.  But it also notes that, “[u]nder [Chief Justice Tani] Cantil-Sakauye, the branch has sought to implement reforms, reorganizing the leadership structure, withdrawing autonomy formerly granted to its director positions and redefining the role of its various offices. It’s currently using outside contractors to audit and review the AOC’s staffing as well.”

Only time will tell if the name change brings about “‘a perceptual change, perhaps even a cultural change,’” as Jahr predicts.  But in the meantime, we assume the owners of a certain Los Angeles dining establishment are pleased.

July 12, 2014

Employment compensation opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Peabody v. Time Warner Cable, Inc.  In that case, the court will answer this question at the Ninth Circuit’s request:  May an employer, consistent with California’s compensation requirements, allocate an employee’s commission payments to the pay periods for which they were earned?  Peabody was argued in June.

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

July 11, 2014

Summary of July 9, 2014 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, July 9, 2014.  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

Ramos v. Brenntag Specialties, S218176—Review Granted—July 09, 2014

The defendants in this case include companies that supply aluminum and other raw materials to manufacturers.  The plaintiff worked for one of those manufacturers, and allegedly breathed fumes emitted from the melting of aluminum during the manufacturing process.  The plaintiff sued the defendants under a product liability theory, but the trial court sustained the defendant’s demurrer based on Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, which held that a supplier of a nondefective multiuse material (like aluminum) is not responsible for injuries resulting from the manufacturing of the raw material.

The Court of Appeal, Second Appellate District, Division Four, reversed in a published opinion, expressly disagreeing with Maxton.  It held that a duty to workers in plaintiff’s position arises where it is foreseeable that the raw material will be used in processes that may pose health hazards, even where the raw material posed no health hazard when transferred from the supplier to the manufacturer.

The Supreme Court granted review to resolve the conflict between this case and Maxton.  The Supreme Court’s decision reflects its renewed scrutiny of the application of products liability doctrines outside the traditional context in which those doctrines were developed.  In O’Neil v. Crane Co. (2012) 53 Cal.4th 335, the Supreme Court rejected a plaintiff’s effort to hold a manufacturer responsible for injuries caused by third-party replacement parts.  Webb v. Special Electric, S209927, currently pending before the Supreme Court, raises a question similar to the issue presented in Ramos:  whether a broker who sold raw asbestos to a manufacturer of asbestos-containing products can be liable for injuries allegedly caused by exposure to those products, where undisputed evidence shows that the manufacturer knew more than the supplier about the potential hazards of asbestos.  [Full disclosure: Horvitz & Levy LLP represents one of the defendants who petitioned for review in Ramos.  Horvitz & Levy also represents the defendant in Webb, and represented the defendant in O'Neil. ]

Citizens for Environmental Responsibility v. 14th District Agricultural Association (Stars of Justice), S218240—Review Granted and Held—July 09, 2014

The 14th District Agricultural Association (District), owner of Santa Cruz County Fairground, contracted with Stars of Justice to operate a rodeo at the Fairground.  Pursuant to the California Environmental Quality Act (CEQA), the Fairground was prohibited from partaking in activities that would contaminate the water sources in the nearby areas.  However, the Class 23 categorical exemption allowed the continuation of “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose” (Cal. Code Regs., tit. 14, § 15323), which included rodeos and other events involving livestock.  The plaintiffs, including the Citizens for Environmental Responsibility and Stop the Rodeo, contended that livestock runoff from the rodeo would pollute surrounding ground water.

The trial court denied the plaintiffs’ petition for writ of mandate and complaint for declaratory and injunctive relief, concluding that the rodeo project was a normal activity of the Fairground within the meaning of the exemption.  The Third District Court of Appeal affirmed in a published decision.

The Supreme Court granted review and deferred briefing pending consideration and disposition of a related issue in Berkeley Hillside Preservation v. City of Berkeley, S201116, which presents the following issue: “Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the ‘Significant Effects Exception’ set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?”

Gillespie v. Svale Del Grande, S218704—Review Granted and Held—July 09, 2014

After purchasing a used car from defendant’s car dealership, the plaintiff filed a class action alleging violations of the Civil Code, Vehicle Code, Public Resources Code, and Business & Professions Code.  The defendant filed a petition to compel arbitration, relying on the parties’ arbitration agreement and class action waiver.  The plaintiff argued the class action waiver was illegal under the Consumers Legal Remedies Act, and that the arbitration clause was unenforceable on grounds of unconscionability.  The trial court held the class action waiver was enforceable but it refused to sever the unconscionable provisions of the arbitration clause.  It therefore declined to enforce the arbitration agreement.

The Sixth District Court of Appeal held in an unpublished opinion that the class action waiver was enforceable but the three other provisions in the arbitration clause were unconscionable.  It reversed the trial court’s order denying the petition to compel arbitration, and remanded for a determination whether to sever the three unconscionable provisions.

The Supreme Court granted reviewed and deferred briefing pending consideration and disposition of a related issue in Sanchez v. Valencia Holding Co., S199119, which presents the following issue:  includes the following issue: “Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?”

Center for Biological Diversity v. California Department of Fish and Game (Newhall and Farming Company),  S217763—Review Granted—July 09, 2014

The plaintiffs challenged Los Angeles County’s approval of the Newhall Ranch Resource Management and Development Plan, including the environmental impact statement and impact report.  The trial court entered a judgment in favor of the plaintiffs, issuing a writ of mandate requiring the County to void its certification of the impact report with respect to five different issues. The Court of Appeal, Second District, Division Five, reversed in a partially published opinion, with directions that judgment be entered in favor of the defendants.

The question presented is whether the County properly certified the environmental impact report and development plan.

Gray1 CPB, LLC v. SCC Acquisitions, Inc., S218699—Review Granted and Held—July 09, 2014

The plaintiff obtained a judgment for $9.1 million.  After several attempts to collect the judgment, the defendant’s attorney hand-delivered a cashier’s check to plaintiff for almost $13 million in satisfaction of the judgment. Twelve days later, plaintiff filed a motion for postjudgment costs, claiming it spent $3.1 million in attorney’s fees to collect the judgment.  The defendant, citing Code of Civil Procedure section 685.080, argued the plaintiff’s motion was untimely because “a motion for costs, including attorney fees permitted by section 685.040 [must] be filed before the judgment has been fully satisfied.”  The defendant asserted the judgment was satisfied upon plaintiff’s receipt of the cashier’s check.  The plaintiff, however, argued the judgment was not satisfied until the check was honored by the issuing bank.

The Court of Appeal, Fourth District, Division Three, held in a published opinion that, under Commercial Code section 3310 (UCC §3310), a judgment paid by a cashier’s check is deemed satisfied upon acceptance of the payment by the receiving party.  (Comm. Code § 3310 [“[u]nless otherwise agreed, if a . . . check is taken for an obligation, the obligation is discharged to the same extent discharge would result if any amount of money equal to the amount of the instrument were taken in payment of the obligation”].)  The court thus held plaintiff’s costs motion untimely because it was not filed until twelve days after it accepted the defendant’s cashier’s check.  The court rejected plaintiff’s reliance on Code of Civil Procedure section 724.050 subdivision (c), on the ground that it only “addresses the timing of a judgment creditor’s obligation to file an acknowledgement of satisfaction, not when a judgment is deemed to have been fully satisfied.”

The Supreme Court granted reviewed and deferred briefing pending consideration and disposition of a related issue in Conservatorship of McQueen, S209376, which presents the following issue:  “Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to the Enforcement of Judgments Statutes (Code Civ. Proc., § 685.040 et seq.) if the statutory authority underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.)?”

Review Denied (with dissenting justices)

None.

Depublished

Pielstick v. Midfirst Bank, S217575—Depublished—July 09, 2014

The trial court denied the plaintiff’s request for voluntary dismissal on the ground the request was made after the commencement of the hearing on the defendant’s demurrer.  Instead, the court sustained the defendant’s demurrer without leave to amend.

The Court of Appeal, Second District, Division Two, held in a published opinion, Pielstick v. Midfirst Bank (2014) 224 Cal.App.4th 1452, that the plaintiff had not made his request “before the actual commencement” of the demurrer hearing.  It relied on Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, where the court denied a party’s attempt to voluntarily dismiss its case during a summary judgment hearing.  The court analogized here that a plaintiff should similarly not be allowed to request voluntary dismissal during a demurrer hearing.  The court reasoned that a contrary rule would allow a plaintiff to restart his complaint if it was not initially going well, as the plaintiff appeared to seek to do in the present case.

The Supreme Court ordered that the Court of Appeal’s opinion not be published in the official reports.

July 9, 2014

Lesser included offense, three strikes opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two criminal law opinions.

People v. Eid raises the question:  Can a defendant be convicted of two separate, uncharged, lesser included offenses of a single charged offense if the lesser offenses are not included in each other?

In People v. Vargas, the Supreme Court limited the parties’ argument to the issue whether the trial court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, by failing to dismiss one of defendant’s two strikes, given that they arose from the same act.

Vargas was argued in early MayEid was on the court’s late-May calendar.

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

July 7, 2014

SCOTUS sometimes more liberal on criminal law issues than California’s Supreme Court

The U. S. Supreme Court recently disagreed with the California Supreme Court on the issue of cell phone privacy, holding that police must get a warrant to search an arrested suspect’s cell phone.  Emily Green reports in today’s Daily Journal [subscription required] that the cell phone issue is not the only one where the country’s high court has taken a more defendant-friendly position than the state high court.  This could change with Governor Brown’s opportunity to reshape the California court.  One area where new appointments to the court might make a difference is in reviewing claims of racial discrimination in jury selection, an issue where Justice Liu is on record as saying that the court’s “jurisprudence . . . appears noticeably out of step with principles set forth by the United States Supreme Court.”

July 3, 2014

One for the books

When the Supreme Court orders an opinion depublished, the opinion disappears (or, as Presiding Justice Arthur Gilbert memorably put it, the opinion “never happened”); the opinion does not appear in the official reports and cannot be cited as precedent in other cases.  A recent depublication request and the court’s handling of it raise questions about the practice that are not clearly covered by the rules.

In People v. Spriggs (2014) 224 Cal.App.4th 150, the Court of Appeal transferred a case from the appellate division of the superior court and reversed a conviction.  (According to the Court of Appeal, and contrary to the appellate division’s opinion, the statute that prohibits the ”using” of a cellphone “while driving” does not bar a driver from looking at a map on a cellphone.)  No problem so far, but things then went unconventional.

The Court of Appeal asked the Supreme Court to depublish the appellate division’s opinion, which was published (215 Cal.App.4th Supp. 1).  Was that a proper request?  I’m not so sure, and not just because the request was filed a day after the 30-day deadline (Cal. Rules of Court, rule 8.1125(a)(4)) for depublication requests.

First, can a Court of Appeal be the one to request depublication?  The rule provides that “[a]ny person” can make a request.  Another rule generally defines “ ’[p]erson’ ” as including “a corporation or other legal entity as well as a natural person.”  OK, so maybe a court can be considered an “other legal entity” under that definition.  But the more troublesome question is whether the Supreme Court can depublish an appellate division opinion, regardless of who is making the request.

The Supreme Court’s depublication authority comes from article VI, section 14, of the California constitution, which 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, and those opinions shall be available for publication by any person.”  The Supreme Court can thus decide which of its own opinions and which Court of Appeal opinions are “appropriate” to publish.  But the constitution does not appear to give the Supreme Court the power over publication of superior court appellate division opinions.  The depublication rules seem to allow the Supreme Court to depublish an appellate division opinion (rule 8.1105, subds. (b) and (e)(2)), but the rules were specifically adopted under article VI, section 14, and the rules can’t be inconsistent with the constitution.

None of this bothered the Supreme Court, however.  It ordered the appellate division opinion depublished.  But then things got even weirder.

It turns out that the appellate division opinion — which was filed in March 2013 — had already been in the bound volumes of the official reports for about five months when the Supreme Court ordered it depublished.  When the Reporter of Decision’s office pointed this out, the court last week vacated its depublication order.tearingpages

Spriggs shows not only that the Supreme Court might depublish superior court appellate division opinions (even if its authority to do so isn’t clear), but that the Supreme Court can reconsider its depublication orders.  Thus, questions of publication status can theoretically be left unresolved indefinitely.  We learned that when the court last year ordered published a Court of Appeal opinion almost two months after it had dismissed review in the case.  Now we also know that depublication orders can be vacated, although we don’t expect to see that happen again any time soon, if ever.  It might be appropriate to amend the rules to specify some time limits for Supreme Court publication and depublication actions.

July 3, 2014

Supreme Court to file three opinions after the holiday weekend

Giving an extra day’s notice because of the July Fourth holiday, the Supreme Court announced today that it will file three opinions on Monday morning.

In City of Los Angeles v. County of Kern, the court will decide whether 28 U.S.C. section 1367(d) requires a party to refile its state law claims within 30 days of their dismissal from a federal action in which they had been presented, or whether it instead suspends the running of the limitations period during the pendency of the claims in federal court and for 30 days after their dismissal.

Conservatorship of McQueen presents this issue:  Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to the Enforcement of Judgments Statutes (Code Civ. Proc., § 685.040 et seq.) if the statutory authority underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.)?  [Disclosure:  The California Academy of Appellate Lawyers submitted an amicus curiae brief in this case.  A number of Horvitz & Levy attorneys are Academy members.]

The third case — People v. Weatherton – is an automatic appeal from an April 2002 judgment of death.

City of Los Angeles and McQueen were argued in early May.  Weatherton was on the court’s late-May calendar and will be the first case from that two-day oral argument session to have an opinion issued.

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

July 2, 2014

No conference held the week of June 30, 2014

The Court is holding no conference this week.  Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.