April 1, 2015

New Supreme Court photo

Here is your new Supreme Court photo:


The court’s website indicates the photo’s release date was Monday, but we didn’t notice the photo until today.  Could this be a nunc pro tunc action to avoid saying the photo was released on April Fool’s Day?

The court has posted biographies for all of the justices, except for Justice Leondra Kruger.


March 31, 2015

Webinar — “The California Supreme Court: What to Expect in 2015″

Three experienced appellate lawyers at Sedgwick LLP will present a webinar on April 29 to discuss “the current California Supreme Court, including its caseload, review rates and roster.”  It looks like the webinar will focus on the court’s civil docket.

March 30, 2015

Supreme Court keeps an eye out for cases in which to grant review on its own motion

The Supreme Court last week granted review on its own motion in Maas v. Superior Court, which raises the issue whether Code of Civil Procedure section 170.6 permits a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus.

Review on the court’s own motion (rule 8.512(c)) is uncommon.  When it does occur, it’s often because the court is asked to take that action by somebody who couldn’t file a petition for review.  For example, in In re L. H., the Court of Appeal asked the Supreme Court to grant review on its own motion and send the case back after the Court of Appeal had dismissed an appeal for failure to file an opening brief and the appellant’s counsel didn’t protest the dismissal until the Court of Appeal had already lost jurisdiction and the time had expired to petition for review.  The Supreme Court obliged.

In Maas, however, the Supreme Court granted review and is keeping the case for decision, and nobody seemed to have asked for review of the Court of Appeal’s published decision.

So, how did Maas get on the Supreme Court’s radar screen?  We don’t know. 101209-N-2943B-001 The Supreme Court won’t comment on specific cases, but a response to an inquiry explained that the court receives information about cases from a variety of sources.  And one of those sources is the court’s staff attorneys, whose responsibilities include reviewing the advance sheets and bringing to the court’s attention matters that it might want to act upon on its own motion.

We didn’t realize that was part of Supreme Court staff’s job description.  Nor can we tell if that was the catalyst for the court’s action in Maas, nor what it is about the Maas case that interests the court.  However, our reading of the Court of Appeal’s opinion and the Supreme Court’s statement of the issue presented indicates the Supreme Court might reverse the Court of Appeal and rule for the Attorney General on a ground the Attorney General apparently hasn’t argued yet.  Shades of People v. Grimes?

March 27, 2015

Summary of March 25, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 25, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Hernandez v. W.R. Thomas, Inc., S224451—Review Granted and Held—March 25, 2015

The court ordered briefing deferred pending decision in Sanchez v. Valencia Holdings Co., LLC, S199119, which presents 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. 321, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

In Hernandez, plaintiffs sued defendant Direct Auto Plaza alleging breach of a vehicle purchase agreement. Defendant petitioned to compel arbitration pursuant to an arbitration provision in the parties’ agreement. Plaintiffs objected, contending the arbitration provision was procedurally and substantively unconscionable. The court rejected plaintiffs’ contentions and ordered the matter to arbitration.

The Court of Appeal, Fourth District, Division One, affirmed the order in an unpublished decision. First, the court concluded that there was only a low level of procedural unconscionability concerning the parties’ transaction. Although the industry-drafted purchase agreement was a contract of adhesion and did not clearly disclose the arbitration provision, the court concluded plaintiffs were notified of the arbitration provision and given ample time to review the entire agreement. Second, the court concluded that the terms of the agreement were not substantively unconscionable, reasoning that the provision pertaining to the finality of the arbitrator’s decision was not so unreasonably harsh as to preclude enforcement of the parties’ agreement.

Review Denied (with dissenting justices)




March 27, 2015

Despite cert. denial, Supreme Court’s Iskanian opinion could still get SCOTUS review

Last June, in Iskanian v. CLS Transportation Los Angeles, the California Supreme Court settled a split of authority among California Courts of Appeal over the enforceability of arbitration clauses waiving representative actions permitted by the Private Attorneys General Act (PAGA) where the arbitration agreements are governed by the Federal Arbitration Act (FAA).  Iskanian held that an arbitration provision “compel[ling] the waiver of representative claims under the PAGA” is “contrary to public policy and unenforceable as a matter of state law.”  Iskanian also concluded that this rule was not preempted by the FAA.

Although Iskanian settled the division among California’s state courts, it did not end the debate over the FAA’s impact on PAGA representative action waivers.  Prior to Iskanian, numerous federal district courts in California had decided that PAGA representative action waivers must be enforced under the FAA.  Now, a majority of federal district courts have similarly declined to follow Iskanian, concluding that the FAA preempts Iskanian’s refusal to enforce these PAGA waivers.  (See, e.g., Estrada v. CleanNet USA, Inc. (N.D.Cal. Feb. 24, 2015) 2015 WL 833701, at pp. *4-*5; Lucero v. Sears Holdings Management Corp. (S.D.Cal. Dec. 2, 2014) 2014 WL 6984220, at pp. *4-*6 [collecting cases declining to follow Iskanian].)  Consequently, California’s state and federal courts are divided over the enforceability of PAGA representative action waivers under the FAA.

Recently, the employer in Iskanian invoked this continuing schism in an effort to persuade the U.S. Supreme Court to grant its cert. petition there.  But the employee successfully persuaded the high court to deny this cert. petition after stressing that the Ninth Circuit had not yet decided if it would follow Iskanian and urging the U.S. Supreme Court to wait for the Ninth Circuit to address the issue.

The U.S. Supreme Court may soon get that opportunity.  This week, the Ninth Circuit set oral argument in the following three arbitration appeals, where it is poised to decide whether PAGA representative action waivers must be enforced under the FAA (the very question addressed by Iskanian): (1) Sakkab v. Luxottica Retail North America, no. 13-55184; (2) Sierra v. Oakley Sales Corp., no. 13-55891; and (3) Hopkins v. BCI Coca-Cola Bottling Co., no. 13-56126.  The arguments in Sakkab and Hopkins are set for June 3, while the argument in Sierra is set for June 4.

If the Ninth Circuit, like many district courts, elects not to follow Iskanian, the U.S. Supreme Court may step in to resolve the conflict.  If it were to do so, the high court would be indirectly reviewing Iskanian’s rule even though the court had previously denied the cert. petition in Iskanian.  Nor would this be the first occasion when the high court will have undertaken such indirect review.  For example, in People v. Diaz (2011) 51 Cal.4th 84, the California Supreme Court held that the Fourth Amendment allowed a warrantless search of cell phone data incident to arrest as long as the cell phone was immediately associated with an arrestee’s person.  But, just last year, in Riley v. California, the U.S. Supreme Court granted certiorari and came to the opposite conclusion in reversing a California Court of Appeal decision that simply followed Diaz.

Interestingly, the Ninth Circuit appeals in Sakkab, Sierra, and Hopkins may call on the Ninth Circuit (and perhaps even the U.S. Supreme Court) to resolve not only the conflict over the enforceability of PAGA representative action waivers but also the related conflict over whether federal False Claims Act (FCA) actions are subject to arbitration under the FAA.

Iskanian held that the FAA does not require courts to enforce PAGA waivers because PAGA representative actions resemble qui tam claims brought under the FCA.  According to Iskanian, the FAA does not preempt “a rule prohibiting the waiver of this kind of qui tam action” since it is brought on behalf of the government.

But Iskanian ignored that courts are divided over whether the FAA mandates the enforcement of agreements to arbitrate FCA claims, thereby choosing a side in this preexisting conflict.  As we explained last year, several federal district court decisions hold that FCA claims are subject to arbitration under the FAA.  As one court put it, although an FCA qui tam claim is “necessarily ‘brought in the name of the Government,’ it still represents a claim belonging to the [p]laintiffs themselves” and is thus subject to arbitration pursuant to the FAA.  (Deck v. Miami Jacobs Business College Co. (S.D.Ohio Jan. 31, 2013) 2013 WL 394875, at pp. *6-*7.)

Since Iskanian’s rationale for refusing to apply the FAA’s mandate to PAGA representative action waivers relies on the premise that qui tam claims like those under the FCA are not subject to the FAA—a premise with which other courts disagree—a court assessing Iskanian’s rationale might address whether it agrees with the contrary line of case law applying the FAA to FCA claims.  Indeed, given this existing conflict over the FAA’s applicability to qui tam claims, U.S. Supreme Court review could be warranted even if the Ninth Circuit were to agree with Iskanian’s rationale in Sakkab, Sierra, or Hopkins.

Moreover, Iskanian’s linking of PAGA representative action waivers to FCA qui tam claims might persuade the Ninth Circuit not to follow Iskanian’s rationale.

After all, courts who have refused to compel arbitration of FCA claims often did so based on the FAA’s so-called “vindication” exception.  (See, e.g., Winston v. Academi Training Center, Inc. (E.D.Va. Mar. 13, 2013) 2013 WL 989999, at *1-*2.)  This “judge made exception” is not predicated on the FAA’s text and instead “originated as dictum” in a U.S. Supreme Court arbitration decision from the 1980s.  (Am. Exp. Co. v. Italian Colors Rest. (2013) 133 S.Ct. 2304, 2310.)  This earlier decision indicated that Congress may be able to manifest an intention in a federal statute enacted after the FAA to exempt federal statutory rights from the FAA’s scope.  (See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614, 627-628.)  Based on this narrow premise, prior high court decisions have suggested in dicta that if a party could not effectively vindicate a federal statutory claim in arbitration, an inherent conflict might exist between the FAA and the federal law in question and this conflict may perhaps override the FAA’s mandate.  (See, e.g., Sherason/Am. Exp., Inc. v. McMahon (1987) 482 U.S. 220, 226-227, 242.)  This prospect of a potential conflict between two different federal laws has convinced some courts that the FAA is inapplicable to FCA claims.  (See, e.g., Nguyen v. City of Cleveland (N.D.Ohio 2000) 121 F. Supp.2d 643, 646-647.)

But unlike the California Supreme Court—which expanded this vindication principle to claims asserting state statutory rights (e.g., Broughton v. Cigna Healthplans of Cal. (1999) 21 Cal.4th 1066, 1082-1083)—the Ninth Circuit recently held that this principle “does not extend to state statutes.”  (Ferguson v. Corinthian Colleges, Inc. (9th Cir. 2013) 733 F.3d 928, 935-936.)  As a result, even assuming federal FCA qui tam claims are not subject to the FAA pursuant to the vindication principle, the Ninth Circuit may still refuse to apply this principle to PAGA representative action waivers in Sakkab, Sierra, or Hopkins because PAGA claims instead derive from state law.

Of course, these Ninth Circuit appeals are not the only cases that could present the U.S. Supreme Court with an opportunity to revisit Iskanian’s rule.  Rather, the high court will get that opportunity even before the Ninth Circuit hears oral argument when the U.S. Supreme Court decides whether to grant the employer’s cert. petition in Bridgestone Retail Operations, LLC v. Brown.  There, the California Court of Appeal followed Iskanian to hold that a PAGA waiver was unenforceable.  The employer filed a cert. petition earlier this year and the high court has requested a response from the employee that is currently due on April 27.  The U.S. Supreme Court may rule on this cert. petition around the same time, or just before, the Ninth Circuit hears oral argument about Iskanian’s rule.

[Full disclosure: Horvitz & Levy filed an amicus brief in support of the employer in Iskanian, arguing the FAA preempted an earlier California Supreme Court decision (Gentry) that permitted the invalidation of class action waivers in wage and hour lawsuits.  Iskanian agreed that the FAA preempted this rule.]

March 26, 2015

Crime victim can address Supreme Court . . . in writing

A case on the Supreme Court’s April calendar concerns a restitution award to a crime victim.  After the court scheduled oral argument in the case — People v. Ford — the crime victim asked for permission to speak at the argument.  The request was made under Marsy’s Law, which, among other things, gives crime victims the right “[t]o be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.”  (Cal. Const., art. I, § 28(b)(8).)

After requesting and receiving briefing from the parties on the issue, the court decided yesterday that the right to be heard is satisfied, at least in the Supreme Court, by allowing the crime victim to address the court in writing.  The court’s order states that the crime victim “may be heard in this court (Cal. Const., art. I, § 28, subd. (b)(8)) by submitting a letter to the Clerk of Court that will be circulated to all the justices.  (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247-1249; Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212-213; accord, Pennsylvania Coal Mining Association v. Insurance Department (Pa. 1977) 370 A.2d 685, 693-694.)”

In the Lewis case cited in the court’s order, the court held that appellate courts are not required to hold an oral argument before issuing a peremptory writ in the first instance.  The court there said that the meaning of “hear” and “hearing” “most commonly includes an auditory component, but when used in a legal sense they do not necessarily encompass oral presentations.”  (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247, fn. omitted.)

Additionally in the Ford case, the court today broadened the issues to be addressed at oral argument.  The issue had been solely whether the trial court had jurisdiction to award restitution to the victim although defendant’s probationary term had expired nine days earlier.  The court now wants counsel to also discuss:  (1) Is the trial court’s order of May 17, 2012, an appealable order?  (See Pen. Code, § 1237; cf. Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050.)  (2) If not, is the order subject to discretionary writ review?  (3) If the order is not appealable but is reviewable by a discretionary writ, may and should this court treat the purported appeal as a writ?  (See Olson v. Cory (1983) 35 Cal.3d 390, 401.)  (4) Should defendant be estopped from challenging the jurisdiction of the trial court to award restitution after his probation had expired?

March 26, 2015

Chief Justice delivers annual State of the Judiciary Address

Chief Justice Tani Cantil-Sakauye delivered her annual State of the Judiciary Address to the Legislature on Monday. As Paul Jones reports in the Daily Journal[subscription required], the Chief “placed less emphasis” than in recent years “on pressing lawmakers for more money and focused instead on efficiency.” She asserted that budget cuts, which have cost California’s courts more than $1 billion over a five-year period, mean that the judicial branch must continue to become more efficient and to innovate. The Chief Justice noted that, as a result of her creation of a Strategic Evaluation Committee, the Judicial Council’s staff was reduced by 30 percent and a court construction cost reduction program was implemented. As Jones points out, however, the Chief did not discuss a state audit, released in January, which was critical of judicial branch spending.

The Chief emphasized other themes as well. She thanked attorneys, the State Bar, and various public officials for speaking out to legislators in support of the judiciary. She also warned against civic apathy as she looked to history for lessons about the need to pursue a more fair, just, and democratic society.

March 23, 2015

Chief Justice to deliver state of the judiciary address this afternoon [UPDATED]

Chief Justice Tani Cantil-Sakauye will this afternoon address the Legislature on the state of the judiciary.  It is an almost annual event.  The address can be viewed on the California Channel beginning at 3:45.

[Update:  video of the address is now available.]

March 20, 2015

Summary of March 18, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 18, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536—Review Granted—March 18, 2015

This case presents the following questions: (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement? (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?

This is an action for breach of a contract to purchase real estate. As affirmative defenses, defendants alleged the contract was illegal and that it was extinguished by novation when the parties entered into a later option agreement. Following a bench trial, the court ruled in defendants’ favor on both grounds but declined to award attorneys’ fees.

The Court of Appeal, First District, Division Two, reversed the denial of attorneys’ fees in a published opinion, Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2014) 231 Cal.App.4th 805. The court concluded the attorney fees clause applied to the novation defense because it was raised in connection with an “alleged dispute, breach, default, or misrepresentation” concerning a provision of the parties’ agreement. Second, citing Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 and Gil v. Mansano (2004) 121 Cal.App.4th 739, the court held the assertion of an affirmative defense constituted an “action” or “proceeding” under Civil Code section 1717.

Justice Richman dissented, disagreeing that the novation defense arose out of a dispute involving the parties’ agreement.

Yoonessi v. Toyota Motor Sales USA, S223679—Review Granted & Held—March 18, 2015

The court ordered briefing deferred pending decision in John v. Superior Court, S222726, which presents the following issue: Must a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment? The Second District Court of Appeal dismissed the appeal.

Review Denied (with dissenting justices)




March 20, 2015

After legislative overruling, Supreme Court to reconsider 2012 denial of habeas relief

In In re Richards (2012) 55 Cal.4th 948, a 4-3 Supreme Court held the defendant was not entitled to habeas corpus relief from a murder conviction that had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  The majority concluded the incriminating expert testimony was not “false evidence” within the meaning of the habeas corpus statute.

Last year, the Legislature passed and the Governor signed a bill to overrule the Richards decision.  In January, the defendant filed another habeas corpus petition, this time directly in the Supreme Court.  Yesterday, the court unanimously issued an order to show cause why relief should not be granted on the ground that the defendant was convicted based on false evidence as (newly) defined in the habeas corpus statute.

March 20, 2015

Bring your computer or tablet into the Supreme Court when arguing

The Supreme Court has announced a new policy that, starting with the court’s April calendar, will allow those arguing cases to bring laptops or tablets into court for the limited purpose of helping with the argument.  It’s a self-styled “restricted public use” policy, however.  No show-and-tell, no recording.  Counsel can use the electronic devices only to look at his or her notes or the briefs or the record or whatever else might inspire eloquence.

Here’s the policy:

Only counsel and self-represented litigants may use laptop computers and electronic tablets in the courtroom.  Such devices may be used only as an aid in presenting oral argument, and may not be used to display demonstrative evidence to the court or for any other purpose.  Devices must be silenced and placed in “airplane mode” at all times.  No cellular telephones or other electronic devices are permitted in the courtroom, except for assisted listening devices.  No audio or video recording or photography is permitted in the courtroom, except in compliance with California Rules of Court, rule 1.150.  Failure to comply with these restrictions may result in the violator being removed from the courtroom.

The First District Court of Appeal has implemented the same policy.

March 16, 2015

Hong Yen Chang gets his law license, 125 years late, after Supreme Court acknowledges a “grievous wrong”

Stating that it was “past time to acknowledge that [his] discriminatory exclusion . . . from the State Bar of California was a grievous wrong,” the Supreme Court this morning granted Hong Yen Chang “posthumous admission as an attorney and counselor at law in all courts of the state of California.”

One hundred and twenty-five years ago, the court denied Chang’s admission application because he was not an American citizen and was prohibited by federal law from becoming a citizen.  Noting that revisiting the denial “requires a candid reckoning with a sordid chapter of our state and national history,” the court recounts in some detail that racist history and concludes that “the legal and policy underpinnings of our 1890 decision have been discredited.”

In a per curiam opinion, the court states that previously denying Chang admission to the bar “denied Chang equal protection of the laws . . . [and] was also a blow to countless others who, like Chang, aspired to become a lawyer only to have their dream deferred on account of their race, alienage, or nationality.  And it was a loss to our communities and to society as a whole, which denied itself the full talents of its people and the important benefits of a diverse legal profession.”

The court’s acknowledgment of past governmental and societal wrongs, and of its part in those wrongs, makes the court a truth and reconciliation commission of sorts.  Assuming that salutary role cannot help but have a positive effect.

The motion for Chang’s posthumous admission — drafted by Munger, Tolles, and Olson — was made by the Asian Pacific American Law Students Association at the University of California, Davis, and supported by the State Senate and by Chang’s descendants.

March 13, 2015

Summary of March 11, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 11, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Ardon v. City of Los Angeles, S223876—Review Granted—March 11, 2015.

This case presents the following questions: (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act (PRA) request waive those privileges and protections? (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?

After obtaining documents from a PRA request, plaintiff’s counsel informed the defendant City that she had obtained a document that appeared to have been prepared in response to two other documents listed in the privilege log and which disclosed the contents of those two other documents. The City responded that the documents had been inadvertently produced. It demanded that plaintiff’s counsel return the documents and agree not to rely on them in any way. Plaintiff’s counsel declined, contending the City had waived any claim of privilege. The City moved to compel the return of the three documents and to disqualify plaintiff’s counsel. The trial court denied the City’s motion, concluding that the production of the documents waived any privilege that previously attached to them, regardless of whether the production was due to mistake, inadvertence or excusable neglect.

The Court of Appeal, Second District, Division Six, held in a published decision, Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, that (1) disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect, do not waive any privilege that would otherwise attach to the production. Government Code section 6254.5 unambiguously expresses the Legislature’s intention that everything produced in a response to a PRA request must be accessible to everyone except in the limited circumstances stated in the statute itself. The court also held that such an exception would confer on the public entity the power to make selective disclosures through “low level employees” and thereby extinguish the provision in the PRA intended to make such disclosures available to everyone. (2) Finally, the court held that plaintiff’s counsel’s exercise of her statutory and constitutional rights to petition the government regarding a matter of public importance was entirely within the scope of permitted professional conduct, and there was thus no basis to disqualify her or any member of her law firm under Rule of Professional Conduct 2-100.

Cleveland National Forest Foundation v. San Diego Association of Governments (People), S223603—Review Granted and Issues Limited—March 11, 2015.

The question is whether an environmental impact report (EIR) for a regional transportation plan must include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals set forth in Executive Order No. S-3-05, in order to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

The Court of Appeal, Fourth District, Division One, held in a published decision, Cleveland National Forest Foundation v. San Diego Association of Governments (People) (2014) 231 Cal.App.4th 1056, that CEQA requires a discussion of mitigation alternatives that could both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented. A few examples of goals that would comply with Executive Order No. S-3-05 include: supporting the planning and development of smart growth areas through transportation investments and other funding decisions; offering incentives for transit-oriented developments in smart growth areas; coordinating the funding of low carbon transportation with smart growth development; and encouraging parking management measures that promote walking and transit use in smart growth areas.

Justice Patricia Benke dissented, disagreeing with the majority that CEQA had any impact on the substance of the EIR.

Review Denied (with dissenting justices)




March 13, 2015

Supreme Court to rule Monday on request for posthumous bar admission

On Monday morning, the Supreme Court might overrule its 125-year-old decision in In re Hong Yen Chang (1890) 84 Cal. 163, which denied a motion to admit Hong Yen Chang — a Columbia Law School graduate and a member of the New York State bar — to the California bar.  Back then, the court declared void under federal law a naturalization certificate that had been issued to Chang by a New York court and held that, under California law, Chang could not be admitted to practice because he was “not a citizen of the United States, and [was] not eligible under the law to become such.”  (See the 1882 Chinese Exclusion Act.)

We’ve noted that the Asian Pacific American Law Students Association at the University of California, Davis, has asked the Supreme Court to reconsider its earlier denial and posthumously admit Chang to the bar, and that the request has been supported by the State Senate and by one of Chang’s great nieces.

The opinion in In re Hong Yen Chang on Admission can be viewed Monday starting at 10:00 a.m.

March 13, 2015

Another successful post-calendaring continuance request

The Marriage of Davis argument is being continued from the April calendar to the court’s early May calendar based on a request filed by appellant’s counsel a week after the case was scheduled for argument.  We’re not going to stop advising counsel to tell the court before a case is calendared about their unavailability, but it does seem that the court is becoming more accommodating of those who ignore the advice.

March 11, 2015

Supreme Court grants a rehearing petition [UPDATED]

The Supreme Court today granted a petition for rehearing in the death penalty case of People v. Grimes.  As noted, rehearing in Grimes, although not necessarily expected, is not startling either.  In January, the court divided 4-3 on whether there was prejudicial error at the penalty phase of the trial and one of the justices in the majority — Marvin Baxter — has retired and been replaced.  Also replaced was the pro tem Court of Appeal justice who voted with the dissenters.  The court’s docket does not yet show who voted for rehearing, but we assume it was dissenting Justices Kathryn Werdegar and Goodwin Liu along with new Justices Mariano-Florentino Cuéllar and Leondra Kruger.  Cuéllar and Kruger replaced retired Justice Baxter and the pro tem justice and were thus able to rule on the rehearing petition.

We’ve called the grant of a rehearing petition “one of the rarest of rarities at the Supreme Court.”  And, indeed, we believe that the Supreme Court hasn’t granted rehearing in almost 20 years, when it did so in May 1996 in American Academy of Pediatrics v. Lungren (1996) 51 Cal.Rptr.2d 201.  However, the conditions are right when, as in Grimes and American Academy of Pediatrics, a court in transition issues a divided decision and a justice in the majority is replaced before a rehearing petition is ruled on.  Those conditions still exist in four cases besides Grimes (see here, here, and here):  Johnson v. California Department of Justice, People v. Johnson, People v. Mosley, and Berkeley Hillside Preservation v. City of Berkeley.  It would not be surprising to see another rehearing grant within the next few months.

[8:10 p.m. Update:  We’ve now seen the order granting the rehearing petition and our assumption is correct — the votes for rehearing were by Justices Werdegar, Liu, Cuéllar, and Kruger.]

March 10, 2015

Bait-and-switch petitions for review

If done right, your petition for review will normally have a different focus than your Court of Appeal brief had, or than your Supreme Court brief on the merits will have (if you’re skilled and lucky enough to have one of the very few petitions that are granted).  Generally, the emphasis of the petition for review should be selling the Supreme Court on the importance of the issue(s) instead of trying to convince the court how the issue(s) should be resolved.  You’ve cogently explained that the Court of Appeal decided your appeal incorrectly?  Nice.  However, that alone and $1 will probably get you only a cup of coffee, not review.

Petition for review writers can look to the Ninth Circuit for inspiration.  When the federal Court of Appeals asks the Supreme Court to answer a state law question, it — like a litigant petitioning for review — needs to convince the Supreme Court that the court’s limited time will be well spent answering the question.  We don’t know if the Ninth Circuit’s latest requests will be favorably received, but they did hit the right notes.  Besides playing the comity card, the Court of Appeals’ sales pitch in one was that “no controlling California precedent answers any of the certified questions” and that the questions “are of extreme importance to tens of thousands of employees in California.”  In the other, the Ninth Circuit said decision of the issue “could transform the terrain of California trust law.”

Erin Coe today writes on Law360.com [subscription] about what makes a good petition for review in “5 Ways To Get Your Calif. Petition For Review Granted.”

Sometimes a successful petition for review will involve a little, shall we say, puffing. Maybe the petition will overstate just a bit the uncertainty in the law and tell the Supreme Court that only its guidance can save the lower courts and the bar from hopeless chaos. Then, once review is granted, the opening brief on the merits will explain to the court that there’s obviously only one way to resolve the issue and that no rational being could possibly believe otherwise.

However, there are other times when the disconnect between the petition for review and the merits briefing is not so much puffing as it is bait-and-switch.  For example, a litigant might get the court’s attention with a review-worthy issue, but then, in its brief on the merits, argue for reversing the Court of Appeal based on a different and much less important ground.  People v. Mosley, decided last week, might fall into that latter category.

The Attorney General’s petition for review in Mosley asked the Supreme Court to decide one issue:  because requiring a defendant to register as a sex offender can include a residency restriction, did the federal constitution mandate that a jury — instead of a judge — find the facts necessary to require registration?  (The Court of Appeal had held that it did and struck the defendant’s sex offender registration requirement.)  After the Supreme Court granted review, however, the Attorney General’s brief on the merits, in addition to advocating for a negative answer to the constitutional question raised in the petition for review, also argued that the court didn’t even need to answer the question — the Attorney General asserted that, as a matter of statute, the defendant in the case was not subject to the residency restriction in the first place.  The statutory argument would moot the constitutional question, because the possibility of a residency restriction was the only reason the defendant could assert a right to a jury trial regarding registration.

The case ended well for the Attorney General.  The Supreme Court decided the constitutional question and did so in the way the Attorney General wanted, and it declined to resolve the “threshold issue of statutory construction” (much to the annoyance of dissenting Justices Goodwin Liu and Kathryn Werdegar, who criticized the majority’s “highly unorthodox” choice to “avoid[ ] an issue of statutory interpretation in order to resolve the case on constitutional grounds”).

Would the Supreme Court have granted review in the case if the Attorney General had in the petition for review made the statutory argument, which, if correct, would moot the constitutional issue that ended up getting the case through the Supreme Court’s door?  Maybe, but the chances for review would have been lower because the court might have preferred to wait for a case that better presented the constitutional issue.

March 9, 2015

Ninth Circuit asks Supreme Court to answer spendthrift trust question [UPDATED]

Saying that resolution of the appeal before it “could transform the terrain of California trust law” and that the appeal “hinges on the interpretation of opaque sections of the Probate Code,” the Ninth Circuit today asked the Supreme Court to answer this question:  “Does section 15306.5 of the California Probate Code impose an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or may the bankruptcy estate reach more than 25 percent under other sections of the Probate Code?”  The case is Frealy v. Reynolds.

It’s been less than three weeks since the Ninth Circuit asked for the Supreme Court’s help on a question of California law.  Before that, it had been over a year.  We should know by the beginning of May — give or take — whether the Supreme Court will agree to decide the question.  The odds are that it will.

[March 11 update:  The Supreme Court has now docketed the Ninth Circuit’s request.]

March 6, 2015

No conference held the week of March 2, 2015

The Court is holding no conference this week because it is hearing oral argument in San Francisco. Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.

March 5, 2015

Supreme Court’s April calendar is two-thirds criminal

The Supreme Court has announced its April calendar.  Over two days, the court will hear arguments in six cases, four of them criminal.

On April 7 and 8, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Le:  Does Penal Code section 1170.1, subdivision (f), as interpreted by People v. Rodriguez (2009) 47 Cal.4th 501, preclude a trial court from imposing both a firearm use enhancement under Penal Code section 12022.5, subdivision (a), and a gang enhancement under Penal Code section 186.22, subdivision (b)(1)(B), when the offense is a serious felony as a matter of law?
Last August, the court asked the parties to also brief whether the People adequately met their pleading burden by generically pleading the Penal Code section 186.22 enhancement under subdivision (b)(1) without greater specificity as to whether the People sought enhancement under subdivision (b)(1)(A), (b)(1)(B), or (b)(1)(C) of that section, and whether, in light of such generic pleading, the People should be estopped from relying or permitted to rely at sentencing on subdivision (b)(1)(B) of section 186.22.  (Pen. Code, § 1170.1, subd. (e); People v. Mancebo (2002) 27 Cal.4th 735.)
Note:  Now-retired Justice Joyce Kennard and Justice Goodwin Liu did not vote to grant the People’s petition for review.

People v. Ford:  Did the trial court have jurisdiction to award restitution to the victim although defendant’s probationary term had expired nine days earlier?

People v. Leon:  [This is an automatic appeal from an October 1996 judgment of death.  The court’s website does not list issues for such appeals.]

California Building Industry Association v. City of San Jose:  What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that require set asides or in-lieu fees as a condition of approving a development permit?  (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 670.)

Marriage of Davis:  For the purpose of establishing the date of separation under Family Code section 771, may a couple be “living separate and apart” when they reside in the same residence?

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