May 23, 2017

Heavy opinion filing days ahead

The Supreme Court has yet to file any opinions in the eight cases argued on the March calendar.  There are only three regular filing days left within the 90-day deadline for issuing opinions (one Monday, two Thursdays).  Unless the court makes some last-minute supplemental briefing/vacating submission orders, there will be one or two big opinion filing days within the next two weeks.

May 22, 2017

Summary of May 17, 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 May 17, 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

Samara v. Matar, S240918 – Review Granted – May 17, 2017

In a published decision, Samara v. Matar (2017) 8 Cal.App.5th 796, the Court of Appeal, Second District, Division Seven, reversed the lower court’s judgment that a patient’s claim against her doctor’s employer for vicarious liability was barred by claim preclusion.  In a prior appellate decision in the same action, the court had ruled the statute of limitations barred the patient’s malpractice claim against her doctor only, but declined to decide the issue of causation.  Here, the Court of Appeal held that claim preclusion did not apply to the claim against the employer because the patient had sued the doctor and the employer in a single action and therefore the patient did not file successive lawsuits.  It also ruled that issue preclusion did not apply because the court expressly did not reach the issue of causation in the prior decision and thus the court had not decided if the doctor had committed malpractice.

This case includes the following issue: When a trial court grants a summary judgment motion on two alternative grounds, and the Court of Appeal affirms the judgment on only one ground and expressly declines to address the second, does the affirmed judgment have preclusive effect as to the second ground?

Flo & Eddie, Inc. v. Pandora Media, Inc., S240649 – Request to Answer Certified Question Granted – May 17, 2017

In Flo & Eddie, Inc. v. Pandora Media, Inc. (9th Cir. 2017) 851 F.3d 950, the Ninth Circuit certified questions to the Supreme Court in a pending copyright dispute over public performance rights.  The Supreme Court granted the Ninth Circuit’s request under California Rules of Court, rule 8.548.

The questions presented are: “1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance? 2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre- 1972 sound recordings an exclusive right of public performance?”

Atascadero Glass, Inc. v. David A. Bush, Inc., S240818 – Review Granted and Held – May 17, 2017

In an unpublished decision, Atascadero Glass, Inc. v. David A. Bush, Inc. (Feb. 14, 2017, F071426) 2017 WL 589111, the Fifth District Court of Appeal affirmed in part and reversed in part the trial court’s ruling that a contractor for a school construction project had a legal right to withhold retention payments owed to a subcontractor until the subcontractor’s claim for extra work was resolved.  The Court of Appeal held that Public Construction Code section 7107, subdivision(e), which applies to public works of improvement, did not permit withholding of retention payments.  However, the court recognized a split existed among the courts of appeal on this issue.

The Supreme Court ordered briefing deferred pending its decision in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., S231549, which presents the following issue: May a contractor withhold retention payments when there is a good faith dispute of any kind between the contractor and a subcontractor, or only when the dispute relates to the retention itself?

Review Denied (with dissenting justices)

None.

Depublished

None.

May 18, 2017

Four cases join Prop. 66 challenge on June calendar [UPDATED x 2]

The Supreme Court today announced its June calendar, the last oral argument session before September.  As known yesterday, one of the cases on the calendar is Briggs v. Brown, the writ petition challenging Proposition 66, the initiative to, among many other things, speed up automatic direct death penalty appeals in the Supreme Court.  There are four other cases to be argued in June, including — not without significance — a 16-year-old death penalty appeal.

With the lighter-than-normal late-May calendar, the court will hear only nine cases in the final two weeks before heading into the usual argument-less months of July and August.  During that same two-week period in the last three years, the court heard 19, 18, and 17 cases.  The court usually puts an extra amount of cases into the ready-for-opinion pipeline at the end of the term.  The fewer cases in the pipeline this year will free up some of the justices’ time to work on the opinion(s) in Briggs, time they didn’t have before argument because of the expedited briefing schedule.

The June calendar will be Justice Kathryn Werdegar’s last before she retires at the end of August.

On June 6, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

Briggs v. Brown:  This case presents issues regarding the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).
There are two pro tem justices for the case — Justices Andrea Hoch (Third District Court of Appeal) and Raymond Ikola (Fourth District, Division Three) — because Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused.
This case is a big deal.

American Civil Liberties Union Foundation of Southern California v. Superior Court:  Does information collected by police using “automated license plate readers” – high-speed cameras that automatically scan and record the license plate numbers and time, date and location of every passing vehicle without suspicion of criminal activity – constitute law enforcement “records of . . . investigations” that are permanently exempt from disclosure under the Public Records Act in accordance with Government Code section 6254, subdivision (f)?
In March, the court asked for supplemental briefing concerning whether the catchall exemption of Government Code section 6255, subdivision (a) applies to any or all of the automatic license plate reader (ALPR) data collected by real parties during the one-week period in August, 2012, that is the subject of this court’s review under the California Public Records Act. (Gov. Code, § 6250, et seq.)

Parrish v. Latham & Watkins:  (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith?  (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6?
Parrish was continued from the April calendar.

People v. Page:  Does Proposition 47 (“the Safe Neighborhoods and Schools Act”) apply to the offense of unlawful taking or driving a vehicle (Veh. Code, § 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18?

People v. Daniels:  This is an automatic direct appeal from a February 2001 judgment of death.  The court’s website does not list issues for such appeals.

[Same day update:  The court has already amended the June calendar, continuing the argument in People v. Page to the September calendar.]

[May 19 update:  While it’s true that the end-of-term calendars are considerably lighter than in previous years, the court is not hearing fewer cases overall.  In fact, reviewing entire-term calendars (September through June), it looks like the court will hear a total of five more cases this term than in 2015-2016.]

May 17, 2017

Prop. 66 case to be argued on June calendar

The Supreme Court hasn’t posted its June calendar yet, but the docket shows that one of the cases to be argued then is Briggs v. Brown, the writ petition challenging Proposition 66, the voter-approved but currently stayed expedited-execution initiative.  The scheduling of the argument is unusually fast, but not surprising.  As with the late-May calendar (which was revised today), the court is giving the minimum 20 days’ notice for the Briggs argument, which will be held on June 6.

May 17, 2017

Rock on! Supreme Court will answer Ninth Circuit’s questions in The Turtles case

The Supreme Court today granted the Ninth Circuit’s request to answer questions about state copyright law in an action brought by the band The Turtles.  The questions are:  “1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance?  2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance?”

The answer to the questions might affect a recent settlement in a related class action against Sirius XM Radio.

The Supreme Court is very accommodating of the Ninth Circuit.  It has now denied just one of the Ninth Circuit’s last 17 requests for help deciphering California law, and even the one wasn’t really a denial.

May 15, 2017

SCOTUS shows some interest in gold-mining-limits opinion

Last summer, 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.  The defendant petitioned the U.S. Supreme Court for certiorari.  The petition has the high court’s attention, as demonstrated by the court’s invitation today to the Acting Solicitor General to file a brief expressing the views of the United States about the case.

SCOTUS might take this case.  Besides raising a question of federal preemption, another enticing factor is that the California Supreme Court disagreed with an Eighth Circuit Court of Appeals decision.

 

May 12, 2017

Summary of May 10, 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 May 10, 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

Mathews v. Harris, S240156 – Review Granted – May 10, 2017

In a published decision, Mathews v. Harris (2017) 7 Cal.App.5th 334, the Court of Appeal, Second District, Division Two, affirmed the trial court’s judgment that a provision of the Child Abuse and Neglect Reporting Act (CANRA), requiring therapists to report patient disclosures that they have accessed child pornography, did not violate patients’ constitutional rights to privacy.  The court determined no fundamental right existed in this case, and CANRA satisfied the rational basis test because the state had a legitimate interest in identifying and protecting sexually abused children.

This case includes the following issues: (1) Does a psychotherapy patient have a constitutional right of privacy in seeking psychotherapeutic treatment, even if the treatment entails a communication with a psychotherapist that refers to conduct constituting a crime? (2) Does the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) violate a patient’s rights under the California Constitution by compelling disclosure of communications demonstrating “sexual exploitation,” which includes, among other things, downloading, streaming, and accessing through any electronic or digital media a depiction of a child engaged in an act of obscene sexual conduct?

Daniel v. Wayans, S240704 – Review Granted and Held – May 10, 2017

In a published decision, Daniel v. Wayans (2017) 8 Cal.App.5th 367, the Court of Appeal, Second District, Division One, affirmed the trial court’s order granting a special motion to strike an actor’s complaint that alleged defendant had racially harassed the actor while filming a movie.  The trial court held that filming of the movie constituted an act of free speech protected under the anti-SLAPP statute, the film concerned an issue of public interest within the statute’s protection, and that plaintiff failed to meet his burden of prevailing on the merits.

The Supreme Court ordered briefing deferred pending its decision in Park v. Board of Trustees of California State University, S229728, which was decided on May 4, but is not yet final.  In Park, the Court held, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

In re Samantha D., S240694 – Review Granted and Held – May 10, 2017

The Court of Appeal, Second District, Division Four, affirmed orders in a juvenile dependency proceeding in a nonpublished opinion, In re Samantha D., B270405.  The Supreme Court ordered briefing deferred pending decision in In re R.T., S226416, which presents the following issue:  Does Welfare and Institutions Code section 300, subdivision (b)(1), authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child?

Review Denied (with dissenting justices)

None.

Depublished

None.

May 10, 2017

Relatively small late-May calendar announced [UPDATED]

The Supreme Court today announced its late-May calendar.  Five cases will be argued, which is not out of the ordinary for most calendars, but is on the light side for late May.  The calendar was announced with the minimum 20 days’ notice.

Not on the calendar is Briggs v. Brown, the writ proceeding challenging Prop. 66.  It could still be argued on the June calendar, the week after the late-May calendar.

On May 30, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

California Cannabis Coalition v. City of Upland:  Is a proposed initiative measure that would impose a tax subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election?

Rubenstein v. Doe No. 1:  For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on?

F. P. v. Monier:  Is a trial court’s error in failing to issue a statement of decision upon a timely request reversible per se?

People v. Pennington:  Did the People prove that the named victim, a harbor patrol officer for the City of Santa Barbara Waterfront Department, is a peace officer within the meaning of Penal Code section 243, subdivision (b), supporting defendant’s conviction for battery on a peace officer?
This is not a sua sponte grant of review case, but it’s in the neighborhood.  The defendant filed a rule 8.508 petition for review, which is “an abbreviated petition . . . for the sole purpose of exhausting state remedies before presenting a claim for federal habeas corpus relief.”  Defendant’s counsel was looking to get his card stamped on the way to federal district court, but, probably much to his surprise, he will be arguing his case to the Supreme Court in less than three weeks.

People v. Jones:  This is an automatic direct appeal from a November 1998 judgment of death.  The court’s website does not list issues for such appeals.

[May 17 update:  The relatively light late-May calendar just got a bit lighter as the court today continued F. P. v. Monier to the September calendar.]

May 8, 2017

Supreme Court clarifies day of rest statutes in response to Ninth Circuit’s certified questions

In Mendoza v. Nordstrom, Inc., the Supreme Court today answered certified questions of state law from the U.S. Court of Appeals for the Ninth Circuit concerning the operation of California’s day of rest statutes, Labor Code sections 550 through 558.1.  In a unanimous opinion by Justice Kathryn Werdegar, the Court gave the following answers to the Ninth Circuit’s questions:

  • “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.”
  • “The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.”
  • “An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.”

Under the decision, the Court concluded that Labor Code sections 551 and 552, “fairly read in light of all the available evidence, are most naturally read to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.”  The Court was “unpersuaded by the concern that this reading of the statutory scheme will permit employers regularly to impose on employees schedules in which they may rest no more than one day in 12.” The Court also rejected the argument that the “the general employee-protective thrust of the Labor Code” compelled adoption of the interpretation favored by the plaintiffs.  The Court concluded that “the Legislature intended to ensure employees, as conducive to their health and well-being, a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.”

But the Court further held that the plaintiffs had the better argument with respect to the “six-hour day” exception of Labor Code section 556, which provides that “[s]ections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”   The Court ruled, “[c]onsistent with the import of the complete text of section 556 and the views of the relevant state agencies,” that “the six hours or less daily exception is satisfied only if every daily shift that week has entailed six hours or less of work.”

With respect to the meaning of “cause” under Labor Code section 552, which provides that an employer may not “cause his employees to work more than six days in seven,” an employer‘s “obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”

In the proceedings that preceded the Ninth Circuit’s issuance of certified questions, the federal district court held a bench trial on the plaintiffs’ day of rest claims. It concluded: (1) “Labor Code section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days”; but (2) “under section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period,” as the plaintiffs did; and (3) the defendant employer “did not cause [the plaintiffs] to work more than six consecutive days because it did not force or coerce them to do so.”

May 5, 2017

No conference held the week of May 1, 2017

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

May 5, 2017

Employment opinion filing Monday

As expected, the Supreme Court on Monday will file its opinion in Mendoza v. Nordstrom, Inc., the last undecided case argued on the February calendar.

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

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

May 4, 2017

Supreme Court limits reach of anti-SLAPP motions

The Supreme Court today holds in Park v. Board of Trustees of the California State University that California’s anti-SLAPP statute, which allows for an early screening of claims that could chill constitutionally protected free speech or petition rights, does not cover as many lawsuits as some Courts of Appeal had found.  The court’s unanimous opinion by Justice Kathryn Werdegar states, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

Under the decision, a college professor’s tenure discrimination action can proceed, at least without being subject to an anti-SLAPP motion.  The court explained, “while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech.  What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.”  It is proper, the court says, to “differentiat[e] between individual speech that contributes to a public entity’s decision and the public entity decision itself.”

The court reverses a divided opinion by the Second District, Division Four, Court of Appeal.  It disapproves a 2015 decision of the Fourth District, Division One, and a 2012 decision of the Fourth District, Division Two, both of which, the court concludes, “overread” a 2006 Supreme Court opinion applying the anti-SLAPP statute in a case concerning hospital peer review proceedings.  The court also disapproves a 2011 decision by the Fourth District, Division Two.

May 3, 2017

Summary of April 26, 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 April 26, 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

Dow Agrosciences v. Superior Court (Center for Environmental Health), S241133 – Review Granted and Transferred – April 26, 2017

Dow Agrosciences (DAS) is an out-of-state company that manufactures and sells agricultural products including those with the active ingredient 1,3-Dichloroproprene, a designated “restricted material” under Proposition 65.   It may be applied only by “certified applicators” according to specific, single-use permits issued by a county Agricultural Commissioner.  Plaintiff Center for Environmental Health (CEH) sued DAS in Alameda County Superior Court for violations of Proposition 65 seeking statutory penalties and injunctive relief.  CEH’s claims are limited to Proposition 65 violations in and around the town of Shafter in Kern County.  No violations are alleged to have occurred (or to be occurring) in Alameda County.

DAS filed a writ petition in the First District Court of Appeal, Dow Agrosciences LLC v. The Superior Court of Alameda County, Case No. A150854.  It evidently challenged CEH’s choice of venue and sought a stay of all trial court proceedings, including DAS’s discovery responses, DAS’s response to the complaint, case management conference statement, and the case management conference.  The Court of Appeal issued an order summarily denying the writ petition.

The Supreme Court granted the petition for review and transferred the matter to the Court of Appeal, First Appellate District, Division Four, with directions to vacate its order denying the petition for writ of mandate and to issue an order to show cause why the relief sought in the petition should not be granted.

Guardianship of G. (Denis), S240470 – Review Granted and Transferred – April 26, 2017

In D.G. et al. v. Superior Court of Los Angeles County, Case No. B279348, the Court of Appeal, Second District, Division One, summarily denied a petition for writ of mandate directing the Probate Court to enter Special Immigrant Juvenile findings.

The Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to vacate its order denying the petition for writ of mandate and to issue an order directing respondent superior court to show cause why the relief sought in the petition should not be granted.  The Court instructed the trial court to consider inviting briefing from the Attorney General.  The Supreme Court directed that the superior court should pay special attention to Code of Civil Procedure section 155’s requirement that the superior court’s role in the Special Immigrant Juvenile process is to make factual findings under subdivision (b) without reference to the “asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile.” (Code Civ. Proc., § 155, subd. (b)(2).) The Court also directed the superior court to pay special attention to California’s statutory definitions of neglect and abandonment. (Fam. Code, §§ 3402, subd. (a), 7822, subd. (a); Welf. & Inst. Code, § 300, subds. (b)(1), (g).)

Review Denied (with dissenting justices)

None.

Depublished

None.

May 3, 2017

Anti-SLAPP opinion filing tomorrow; employment opinion likely Monday

Tomorrow morning, the Supreme Court will file its opinion in Park v. Board of Trustees of the California State University, which was argued on the February calendar.

Park raises the issue whether Code of Civil Procedure section 425.16 — the anti-SLAPP statute — authorizes a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications.

After tomorrow, there is only one more regular filing day — this Monday, May 8 — within the 90-day period for opinions in February calendar cases.  Besides Park, the only undecided case from that calendar is Mendoza v. Nordstrom, Inc., an employment rest hours case on referral from the Ninth Circuit.  Thus, unless the court at the last minute asks for supplemental briefing, which occasionally happens, look for the Mendoza opinion on Monday.

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

May 1, 2017

“It’s Environmental Law Week at the California Supreme Court”

At the Legal Planet blog, Professor Richard Frank discusses three cases on the Supreme Court’s early-May calendar.

May 1, 2017

Proposed rules of conduct for prosecutors gets mixed Supreme Court reception

Put this one in the “the Supreme Court does more than just decide cases” file.

The State Bar’s trustees asked the court to approve proposed amendments to rules of conduct focused on prosecutors.  (Approving State Bar-adopted rules is one of the court’s jobs.)  By administrative order signed by all seven justices, the court granted the request in part and denied it in part.  The denial part of the order asks the Bar to consider alternate language for provisions regarding the disclosure of information to criminal defendants and the subpoenaing of lawyers to give evidence about past or present clients.

April 24, 2017

Habeas petition, not sentence recall, is proper way to challenge juvenile LWOP sentence

In In re Kirchner, the Supreme Court today holds a prisoner can use a habeas corpus petition to challenge a life-without-parole sentence for a murder he committed 24 years ago when he was 16.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that the prisoner need not use a different, “selective and qualified” procedure — seeking to recall his sentence — because that is not an adequate remedy for analyzing whether a juvenile life sentence meets certain constitutional standards specified in a 2012 U.S. Supreme Court decision.

The court reverses the Fourth District, Division One, Court of Appeal.  Interestingly, a different panel of the same appellate court subsequently disagreed with the opinion of the panel in this case, and one Court of Appeal justice concurred in both opinions.  The Supreme Court granted review in that other case also.  In light of its opinion today, the court will likely dismiss review in the later case in a few months and leave that case’s opinion published.

April 21, 2017

Summary of April 19, 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 April 19, 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

Salazar v. Superior Court, S240247– Review Granted and Held – April 19, 2017

The Supreme Court granted review after the Court of Appeal, Second District, Division Eight, summarily denied a petition for writ of mandate in Salazar v.Superior Court (Intermodal Bridge Transport), B280525.  The Court ordered briefing deferred pending its decision in Williams v. Superior Court, S227228, which will be argued on May 4.

Williams presents the following issues: (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding, or is the plaintiff first required to show good cause in order to have access to such information? (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

Review Denied (with dissenting justices)

None.

Depublished

None.

April 21, 2017

Juvenile LWOP opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in In re Kirchner, which was argued on the February calendar.  The case involves an issue of continuing interest to the Supreme Court — lengthy sentences for crimes committed by juveniles.

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

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

April 21, 2017

Ninth Circuit sends consumer loan/UCL question to Supreme Court [Updated]

Two days ago, the Supreme Court dismissed the request of one federal appeals court — the Second Circuit — for an answer to a state law question.  (The case settled after the Supreme Court had agreed to answer the question.)  Today, the Ninth Circuit sends a possible replacement.

The Ninth Circuit is asking the Supreme Court to answer a question regarding consumer loans and California’s Unfair Competition Law.  The issue in De La Torre v. CashCall, Inc., says the federal appeals court, “is whether the interest rates on consumer loans of $2500 or more that are governed by California Finance Code § 22303, which provides no interest rate limitations on such loans, can be deemed unconscionable under California Finance Code § 22302 and thus be the predicate for a private cause of action under the California Unfair Competition Law (‘UCL’).”  The case before the Ninth Circuit is a class action alleging consumer loans with interest rates of 90 percent or higher.

The Supreme Court should decide by mid-June — give or take — whether it will answer the Ninth Circuit’s question under rule 8.548.  The court isn’t required to answer, but it usually does.  Going back five years, it has turned down federal appellate courts just once in the last 16 requests (not including another pending request), and even then it wasn’t really a denial.

[April 24 update:  The Supreme Court today docketed the De La Torre case.]

April 19, 2017

“California chief justice: The courthouse is not the place for immigration enforcement” [Updated]

In a Washington Post op-ed, Chief Justice Tani Cantil-Sakauye today continues her advocacy for keeping federal immigration agents out of California’s courthouses.  (Related:  here, here, here, here, here, and here.)

Speaking as “a former prosecutor, a judge and the wife of a retired police officer,” the Chief Justice agrees with federal officials “that law-enforcement officials strive to ‘perform their duties with the highest degree of professionalism and public service,’” but she disagrees with them “on where that enforcement should occur.”  She says that “immigration arrests, or the fear of arrests at or near courthouses, disrupt court activities and the lives of those seeking justice” and she worries that “both documented and undocumented immigrants will no longer cooperate with state and local law-enforcement agencies; crimes or civil wrongs will go unreported and communities will live in fear.”

The Post identifies Cantil-Sakauye as “the chief justice on the California state Supreme Court.”  Regarding this issue, however, she is speaking not as the head of the Supreme Court, but as the leader of California’s judicial branch of government.

[Update:  An additional “related” link is added above.  Also, a recent New Yorker piece — “The Trump Era Tests the True Power of Sanctuary Cities” — mentions the Chief Justice’s letter last month, which complained of courthouse immigration arrests, and the administration’s response to the letter.  It discusses various courthouse arrests around the country, including one where ICE agents “followed a woman into a court where she was seeking a protective order against an abusive boyfriend.”  The Chief Justice has characterized the agents’ conduct in general as “stalking.”]

April 17, 2017

Supreme Court affirms eight-year-old death sentence despite reversal of one special circumstances finding

The Supreme Court today upholds the death penalty in People v. Becerrada for the murder of a woman who was pressing a rape charge against the defendant.  The court’s unanimous opinion by Justice Ming Chin reverses one of three special circumstances findings — the one for lying in wait — but otherwise affirms the judgment, concluding there was “‘no reasonable possibility'” that the erroneous lying-in-wait finding affected the jury’s penalty phase verdict.

The judgment in Becerrada is only a little over eight years old.  “Only” is accurate because the case is at the short end of the temporal spectrum for deciding automatic, direct appeals in death penalty cases.  The court has in the past issued opinions eight years after judgment — and even just six years after judgment — but the norm is considerably longer.  More typical is the last death penalty decision before Becerrada, which was filed more than 15 years after judgment, or the last argued automatic appeal — heard on the March calendar — which is from an 18-year-old judgment.  This gives an idea of how death penalty appeals would swamp the Supreme Court if the court rejects the pending challenge to the five-year deadline that Proposition 66 imposes.

April 14, 2017

Summary of April 12, 2017 conference report for civil cases

Summary of April 12, 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 April 12, 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

Cal Fire Local 2881 v. California Public Employees’ Retirement System, S239958 – Review Granted – April 12, 2017

In a published decision, Cal Fire Local 2881 v. California Public Employees’ Retirement System (2016) 7 Cal.App.5th 115, the Court of Appeal, First District, Division Three, affirmed the judgment in an action for writ of administrative mandate.  Plaintiff firefighters had sought to compel defendant’s compliance with Government Code section 20909 (section 20909), a law that provides eligible public employees the option to purchase at cost up to five years of nonqualifying service credit (sometimes referred to as “airtime”).

This case presents the following issues: (1) Was the option to purchase additional “airtime service credits” pursuant to section 20909 a vested pension benefit of public employees enrolled in CalPERS?  (2) If so, did the Legislature’s withdrawal of this right through the enactment of the Public Employees’ Pension Reform Act of 2013 (PEPRA) (Gov. Code, §§ 7522.46, 20909, subd. (g)), violate the contracts clauses of the federal and state Constitutions?

Review Denied (with dissenting justices)

Rivera v. Foster Farms, S239737 – Review Denied (with dissenting justices) – April 12, 2017

Plaintiff and her husband sued defendant Foster Farms asserting that plaintiff’s bacterial infection, and thus her injuries from Guillain-Barré syndrome, were attributable to Foster Farms chicken she ate.  Following trial, the 11-member jury returned a special verdict finding by eight to three that defendant’s chicken was not the cause of plaintiff’s bacterial infection.

In an unpublished opinion, Rivera v. Foster Farms (Dec. 19, 2016, B264137) 2016 WL 7340021 [nonpub. opn.], the Court of Appeal, Second District, Division Five, held that the trial court’s jury selection process did not deviate from proper procedure and that several jurors did not engage in misconduct warranting reversal.  The court also held that the trial court did not abuse its discretion in excluding evidence of (1) Salmonella contamination in defendant’s facilities, and (2) inspection reports citing defendant for noncompliance with federal agricultural standards governing chicken processing, and that, in any event, the exclusion of this evidence was not prejudicial.

Justices Werdegar and Chin were of the opinion the petition should be granted.

Depublished

None.

April 14, 2017

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Becerrada, which was argued on the February calendar.  It is an automatic direct appeal from a February 2009 judgment of death.

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

April 13, 2017

Pro tems assigned for Prop. 66 case

The Supreme Court today assigned Justices Andrea Hoch (Third District Court of Appeal) and Raymond Ikola (Fourth District, Division Three) as pro tem justices for Briggs v. Brown, the writ petition challenging Proposition 66, the voter-approved but currently stayed expedited-execution initiative.  Hoch and Ikola are sitting in place of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, who are recused.  The assignments were presumably made by Acting Chief Justice Carol Corrigan.

Because of the alphabetical method of assigning pro tems, it is not surprising that Justice Hoch was chosen for the case.  But there were a few other justices alphabetically ahead of Justice Ikola who might have been assigned.

In any event, this is a further sign that Briggs will be argued on the late-May or early-June calendar.

April 10, 2017

Hospital whistleblower can find out quickly that she has no jury trial right

In Shaw v. Superior Court, the Supreme Court today has good news and bad news for a plaintiff in a statutory hospital whistleblower suit.  On the one hand, she need not wait until the end of her case to complain about the superior court’s denial of a jury trial; she can have immediate appellate review of that claim by a petition for writ of mandate.  On the other hand, she’s not going to like the prompt response to her complaint — she has no statutory or state constitutional right to a jury trial.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye does say, however, that the whistleblower statute “fully preserves a plaintiff’s right to obtain a jury trial in the related tort cause of action for wrongful termination in violation of public policy authorized under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167,” and that the remedies for a Tameny cause of action are not limited to the remedies under the whistleblower statute.

The court affirms (on the appellate procedural issue) and reverses (on the jury trial issue) the Second District, Division Three, Court of Appeal.  On the procedural issue, the court overrules four of its old opinions, the newest of which was issued in 1931.

April 9, 2017

Prop. 66 argument before term’s end?

The Supreme Court announced its early-May calendar last week and Briggs v. Brown is not on it.  Briggs is the writ petition challenging Proposition 66, the voter-approved but currently stayed expedited-execution initiative that could wreak havoc with California’s judicial system in general and the Supreme Court in particular.

There are two more oral argument calendars — late-May and June — before the annual July-August argument hiatus.  It’s a good bet that the court will schedule Briggs for one of those two.  That would be unusually fast, but Briggs is one of those unusual cases that often gets expedited treatment.

The court set a very tight briefing schedule for Briggs and gave notice that it did “not anticipate granting any extensions of time” for that schedule.  For the most part, the court has stuck to that warning, except for accepting an amicus brief a week beyond the deadline it had set.

When the court requires expedited briefing in high-profile cases, oral argument often quickly follows.  Examples include cases regarding the governor’s furlough and line-item veto powers, the elimination of redevelopment agencies, a new redistricting system, and a criminal justice initiative sponsored by Governor Jerry Brown.  Even then, however, a faster-than-normal hearing is not fast enough for some parties — e.g., the Proposition 8 standing case.

The court should issue its late-May and June calendars within the next three or four weeks.

April 7, 2017

There will be a 10-case early-May calendar

The Supreme Court today announced its early-May calendar.  May is the only month with two oral argument sessions, and those calendars — and the one in June — are often larger than normal, because the court is putting extra cases into the pipeline before the argument-free months of July and August.

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

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC:  (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?

Lewis v. Superior Court:  (1) Do a physician’s patients have a protected privacy interest in the controlled substance prescription data collected and submitted to the California Department of Justice under Health and Safety Code section 11165?  (2) If so, is disclosure of such data to the Medical Board of California justified by a compelling state interest?

Friends of the Eel River v. North Coast Railroad Authority:  (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)?  (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property?

People v. DeLeon:  In light of the changes made to the parole revocation process in the 2011 realignment legislation (Stats. 2011, ch. 15; Stats. 2012, ch. 43), is a parolee entitled to a probable cause hearing conducted according to the procedures outlined in Morrissey v. Brewer (1972) 408 U.S. 471 before parole can be revoked?

Lynch v. California Coastal Commission:  (1) Did plaintiffs, who objected in writing and orally to certain conditions contained within a coastal development permit approved by defendant California Coastal Commission and who filed a petition for writ of mandate (Code Civ. Proc., § 1094.5) challenging those conditions, waive their right to challenge the conditions by subsequently executing and recording deed restrictions recognizing the existence of the conditions and constructing the project as approved?  (2) Did the permit condition allowing plaintiffs to construct a seawall on their property, but requiring them to apply for a new permit in 20 years or to remove the seawall, violate Public Resources Code section 30235 or the federal Constitution?  (3) Were plaintiffs required to obtain a permit to reconstruct the bottom portion of a bluff-to-beach staircase that had been destroyed by a series of winter storms, or was that portion of the project exempt from permitting requirements pursuant to Public Resources Code section 30610, subdivision (g)(1)?

Williams v. Superior Court:  (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed?  (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

Cleveland National Forest Foundation v. San Diego Association of Governments:  Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?

In re R.T.:  Does Welfare and Institutions Code section 300, subdivision (b)(1), authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child?

In re Albert C.:  (1) Did the juvenile court violate minor’s due process rights by detaining him well past the 120-day limit established in the Los Angeles County Superior Court Juvenile Division’s “Amended Competency to Stand Trial Protocol” (Protocol), without evidence of progress toward attaining competency?  (2) Does a violation of the Protocol establish a presumption of a due process violation?

People v. Estrada:  Did the trial court improperly rely on the facts of counts dismissed under a plea agreement to find defendant ineligible for resentencing under the provisions of Proposition 36?

April 7, 2017

Hospital whistleblower opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Shaw v. Superior Court, which was argued on the February calendar.

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

Two weeks before the case was argued, the Supreme Court told counsel to “be prepared at oral argument to address, in connection with the constitutional jury trial issue, the relationship between an employee’s action for wrong termination under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 157 and such an employee’s action for retaliatory termination under Health and Safety Code section 1278.5, subdivision (g), including the relevance of the provisions of Health and Safety Code section 1278.5, subdivision (m).”

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

April 6, 2017

Anti-injunction provision in arbitration agreement is unenforceable

In McGill v. Citibank, N.A., the Supreme Court today holds that, notwithstanding the Federal Arbitration Act, California courts will not enforce arbitration agreement provisions that waive the right to seek, in any forum, public injunctive relief under consumer, unfair competition, and false advertising statutes.  The court’s unanimous opinion by Justice Ming Chin (with Fourth District, Division One, Court of Appeal Justice Judith Haller as the pro tem replacement for Justice Carol Corrigan) also concludes that a 2004 initiative — Proposition 64 — does not prevent private parties from seeking public injunctive relief and that the Federal Arbitration Act does not preempt the California unenforceability rule because the rule is “a generally applicable contract defense” rather than one peculiar to arbitration agreements.  The court finds the federal law “does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under” the state statutes.

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

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

April 6, 2017

Prevailing-party attorney fees not required for dismissal based on being in the wrong forum

In DisputeSuite.com, LLC v. Scoreinc.com, the Supreme Court today holds that a defendant who obtains a dismissal of an action based on contract forum selection clauses is not necessarily a prevailing party for purposes of collecting attorney fees under the contract’s attorney fee clause.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes that because “the action had already been refiled in the chosen jurisdiction [Florida] and the parties’ substantive disputes remained unresolved, the court could reasonably conclude neither party had yet achieved its litigation objectives to an extent warranting an award of fees.”  The underlying dispute concerns commissions for referrals to credit repair software.

The court assures that a procedural dismissal doesn’t necessarily preclude an attorney fees recovery, but the dismissal must “finally dispose[ ] of the parties’ contractual dispute.”  The court says that the problem with the defendant’s fee claim “is not that its victory in the California trial court was procedural but that it was not dispositive of the contractual dispute.”

The court does not discuss and distinguish its recent opinion holding that attorney fees are recoverable by a defendant who obtains a dismissal under the anti-SLAPP statute on grounds the case was “filed in a tribunal that lacks the power to hear it.”  That case — Barry v. State Bar of California — seems enough in the ballpark to merit a mention in today’s decision.

The court affirms the Second District, Division Two, Court of Appeal.  It disapproves of statements in 2010 and 2008 opinions by the Fourth District, Division Three.

 

April 5, 2017

No conference held the week of April 3, 2017

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

April 5, 2017

A dozen prosecutors and Justice Grodin support the Chief Justice in her immigration-arrests dispute with feds

In the back and forth between California’s Chief Justice and the U.S. Attorney General and Secretary of Homeland Security about courthouse immigration arrests by federal agents, 12 district attorneys and city attorneys from around the state have weighed in on the Chief’s side, in a letter to those federal officials.  So has former Supreme Court Justice Joseph Grodin, in letters to the San Francisco Chronicle and the Los Angeles Times.

Saying that “[n]o one should fear that their immigration status prevents them from seeking justice,” the prosecutors echoed the Chief Justice in writing that courthouse arrests “deter residents concerned about their immigration status from appearing in court — including as crime victims and witnesses — jeopardizing effective prosecution of criminals who may then re-offend.”

Justice Grodin says that the Chief Justice “deserves praise, not admonishment” for “seeking to protect the California justice system from the intimidating and chilling presence of federal immigration agents in and around local courthouses in order to arrest undocumented immigrants,” and he claims that the feds’ dismissive response to the Chief’s letter is “disrespectful of [her] office and position.”

April 5, 2017

“Amazing Cool: Keeping Up With Goodwin Liu”

Ben Shatz interviews Justice Goodwin Liu for the State Bar Litigation Section’s “California Litigation Review.”  [The link might be for Litigation Section members only.]  There’s plenty of biographical information and a discussion of his practice of hiring annual law clerks.

Justice Liu also talks about his 2006 Senate testimony against the nomination of U.S. Supreme Court Justice Samuel Alito Jr., testimony which contributed to the Senate’s later blocking of Justice Liu’s own nomination to the Ninth Circuit.  He says, “my testimony included some language that was unduly harsh, and that was a mistake.  I don’t know whether he was bothered by it or even knew about it.  But I did send him a personal apology, and he could not have been more gracious about it.”

Justice Liu brings up in the interview the Supreme Court’s two In re Richards opinions — the court granted a habeas corpus petition because of recanted expert testimony only after the Legislature amended a statute in sync with his dissent from the court’s initial decision denying relief.  Liu cites that as an example of how a justice “can have impact in this job” and he recounts how Richards himself drove an hour to a panel discussion so he could shake Liu’s hand.

April 5, 2017

Arbitration, attorney fees opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in McGill v. Citibank, N.A. and DisputeSuite.com, LLC v. Scoreinc.comMcGill was argued on the December calendar, but the court has not blown the 90-day deadline; the court requested post-argument supplemental briefs, so the 90-day clock did not re-start until February 15, when the last supplemental brief was filed.  That argument had already been continued from the October calendarDisputeSuite.com will be the first opinion in the cases argued in February.

McGill raises this issue:  Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration?
[Justice Carol Corrigan is recused.  Fourth District, Division One, Court of Appeal Justice Judith Haller is the pro tem replacement.]
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

In DisputeSuite.com, the court will decide whether the defendants were entitled to an award of attorney fees under Civil Code section 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause.

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

April 3, 2017

Does the feds’ response to the Chief Justice request Fourth Amendment violations?

An ImmigrationProf blog post asks that question and says the answer might be “yes.”

The U.S. Attorney General and the Secretary of Homeland Security last week responded to Chief Justice Tani Cantil-Sakauye’s request that immigration agents not “stalk” undocumented immigrants and make arrests in California courthouses.  (New York Times and Daily Journal [subscription] coverage here and here.)  Among other things, their letter “encourage[d]” the Chief Justice to express her concerns to Governor Jerry Brown and “local officials who have enacted policies that occasionally necessitate ICE officers and agents to make arrests at courthouses and other public places.”  One of those policies, the letter says, is “denying requests by ICE officers and agents to enter prisons and jails to make arrests.”

The ImmigrationProf Blog reports that ICE requests have included asking local jails to “detain for an extra 48 hours immigrants who have served their jail sentences and are entitled to release” (see here and here) and that a federal court has ruled such detentions to be Fourth Amendment violations.

April 2, 2017

“Prop. 66 could deal ‘mortal blow’ to court”

Maura Dolan reports in today’s Los Angeles Times about Proposition 66, the speed-up-the-death-penalty initiative that passed in last year’s election with 51 percent of the vote.  The Supreme Court, with Chief Justice Tani Cantil-Sakauye and Justice Ming Chin recused (and their pro tem replacements uncertain), put the law on hold while it considers a writ petition — Briggs v. Brown — challenging the law’s constitutionality.  The briefing in the case is available online, except for a host of amicus briefs filed Thursday, which are not up yet.

The Times article — subtitled “Measure to quicken executions would inundate justices with extra work on appeals, experts warn” — focuses mostly on the parts of the initiative that require extreme expediting of judicial review.  It quotes Jon Eisenberg, president of the California Academy of Appellate Lawyers, which opposed the initiative, as saying, “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder.”  [Disclosure:  Eisenberg is “of counsel” to Horvitz & Levy.]  It is unclear whether the court could comply with Prop. 66’s draconian time limits even by handling nothing but death penalty appeals, because those appeals take considerably more work than the average case.

The court has examined before complaints about delay in the death penalty system, ironically by condemned defendants, who claim that systemic delay violates the Eighth Amendment bar against “cruel and unusual punishment.”  Most recently, in its 2015 People v. Seumanu opinion, the court did not definitively reject the argument, but nonetheless stated, “allowing each case the necessary time, based on its individual facts and circumstances, to permit this court’s careful examination of the claims raised is the opposite of a system of random and arbitrary review.”  (People v. Seumanu (2015) 61 Cal.4th 1293, 1375.)  The opinion also quoted a federal appeals court:  “‘We believe that delay in capital cases is too long.  But delay, in large part, is a function of the desire of our courts, state and federal, to get it right, to explore exhaustively, or at least sufficiently, any argument that might save someone’s life.'”  (Ibid.)  This indicates that the court will be sensitive to the harm caused by any law that rushes the process.

April 1, 2017

“At legal odds over ICE”

Del Quentin Wilber and Maura Dolan report in today’s Los Angeles Times about the federal government’s response to charges made by Chief Justice Tani Cantil-Sakauye — in a letter, her State of the Judiciary speech, and at least one interview — that immigration agents are “stalking” undocumented immigrants in California courts.  The Attorney General and Secretary of Homeland Security conceded that agents are making courthouse arrests, but objected to the “stalking” characterization and defended the policy.  The Chief Justice said in a statement she appreciated the “admission that they are in state courthouses making federal arrests” and she reiterated her concerns about the practice — “Making arrests at courthouses, in my view, undermines public safety because victims and witnesses will fear coming to courthouses to help enforce the law.”

March 31, 2017

Summary of March 22 and 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 conferences on March 22 and 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

Chen v. L.A. Truck Centers, LLC, S240245 – Review Granted – March 29, 2017

In a published decision, Chen v. L.A. Truck Centers, LLC (2017) 7 Cal.App.5th 757, the Court of Appeal, Second District, Division Eight, reversed the trial court’s application of Indiana law in a products liability action arising out of a tour bus accident in Arizona that killed or injured 10 Chinese nationals.  The defendant Indiana-based bus manufacturer settled, as did other defendants, leaving a California bus dealer as the lone defendant at trial.  The dealer prevailed at trial under Indiana law, which is more favorable to defendants than California law.

This case presents the following issue: Must a trial court reconsider its ruling on a motion to establish the applicable law governing questions of liability in a tort action when the party whose presence justified that choice of law settles and is dismissed?

County of San Diego v. Commission on State Mandates, S239907 – Review Granted – March 29, 2017

In a published decision, County of San Diego v. Commission on State Mandates (2016) 7 Cal.App.5th 12, the Court of Appeal, Fourth District, Division One, reversed the lower court’s decision affirming the Commission on State Mandates’ holding that local governments and school districts were not eligible for reimbursement.  The Commission previously concluded costs associated with eight activities required of local governments by the  Sexually Violent Predator Act (SVPA, Welf. & Inst. Code, § 6600 et seq.) were eligible for reimbursement because they were state mandated.  The Commission revisited that decision based on the passage of Proposition 83 in 2006 and concluded that six of the duties it deemed state mandated in 1998 were instead mandated by the ballot initiative, thereby removing reimbursement eligibility.

This case presents the following issue: Did The Sexual Predator Punishment and Control Act (the voter initiative otherwise known as “Jessica’s Law” or Proposition 83), which amended and reenacted provisions of the Sexually Violent Predator Act, a statutory scheme that the Commission on State Mandates had found to include reimbursable state mandates, constitute a “change in the law” sufficient to support the Commission’s decision that some of those mandates were no longer reimbursable by the State of California?

FTI v. Superior Court, S239402 – Review Granted and Held – March 29, 2017

The Supreme Court granted review of a summary denial of a petition for writ of mandate by the Court of Appeal, First District, Division Four, in FTI v. Superior Court (Dec. 29, 2016, A149860).  The Court has delayed further action pending the United States Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (2016) 1 Cal.5th 783, certiorari granted January 19, 2017, __ U.S. __ [137 S.Ct. 827].

Moalem v. Gerard, S239434 – Review Granted – March 22, 2017

In an unpublished opinion, Moalem v. Gerard (Dec. 1, 2016, B268963), the Court of Appeal, Second District, Division Two, affirmed a finding of a private nuisance  when the defendant-neighbor’s tree grew at an angle over her adjoining plaintiff-neighbor’s property.  The court held negligence was not required finding for a private nuisance arising from an overgrown tree.

The Supreme Court limited review to the following issues: (1) Is negligent or intentional action a necessary element of a cause of action for abatement of a natural condition-private nuisance based on a failure, or omission to act and, if so, should tree encroachment cases be exempted from this rule? (2) Assuming negligence is required, can negligence be demonstrated under the circumstances of this case? Does it matter that defendant owned both parcels of land when the tree was maturing? (3) Who should bear the expense of tree removal when it is infeasible to remove only the encroaching parts of an otherwise healthy tree that overhangs a neighbor’s premises? Should the tree owner be compensated for the loss of an otherwise healthy tree that is found to create a nuisance? (4) When, if ever, is it proper for a defendant to raise the issue of comparative negligence in private nuisance actions? (See Tint v. Sanborn (1989) 211 Cal.App.3d 1225, and Kafka v. Bozio (1923) 191 Cal. 746, 748.) Is the fact that part of the subject tree was encroaching on the property before plaintiffs purchased it a relevant consideration?

National Shooting Sports Foundation v. State of California, S239397 – Review Granted – March 22, 2017

In a published opinion, National Shooting Sports Foundation, Inc. v. State of California (2016) 6 Cal.App.5th 298, the Fifth District Court of Appeal held that plaintiff’s action to invalidate Penal Code section 31910, subdivision (b)(7)(A), on the ground it is impossible to comply with the statute, survived judgment on the pleadings.  Penal Code section 31910, subdivision (b)(7)(A) designates a handgun as unsafe unless it is  designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired.

This case presents the following issues: (1) Can a statute be challenged on the ground that compliance with it is allegedly impossible? (2) If so, how is the trial court to make that determination?

Newport Harbor Ventures v. Morris Cerullo World Evangelism, S239777  – Review Granted – March 22, 2017

In a published opinion, Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, the Court of Appeal, Fourth District, Division Three, held that the filing of an amended complaint does not automatically reopen the period for bringing an anti-SLAPP motion and therefore, defendant’s anti-SLAPP motion filed within 60 days of the third amended complaint was untimely.

This case presents the following issues: (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?

Stand Up For California! v. State Of California (North Fork Rancheria Of Mono Indians), S239630 – Review Granted and Held – March 22, 2017

In a published decision, Stand Up For California! v. State Of California (North Fork Rancheria Of Mono Indians) (2016) 6 Cal.App.5th 686, a divided panel of the Fifth District Court of Appeal held the Governor did not have authority to negotiate a tribal-state compact authorizing class III gaming when the land taken into trust was not Indian land because a state referendum disapproved of the legislative ratification of a compact between the Governor and the Indian tribe.

The Court deferred briefing pending resolution of United Auburn Indian Community of the Auburn Rancheria v. Brown, S238544, which presents the following issue: May the Governor concur in a decision by the Secretary of the Interior to take off-reservation land in trust for purposes of tribal gaming without legislative authorization or ratification, or does such an action violate the separation of powers provisions of the state Constitution?

Nationwide Biweekly Administration v. Superior Court, S239979 – Review Granted and Transferred – March 22, 2017

In Nationwide Biweekly Administration v. Superior Court (Feb. 1, 2017, A150264), the Court of Appeal, First District, Division One, summarily denied a petition for writ of mandate. The Supreme Court granted review and remanded with directions to the Court of Appeal vacate its order denying the petition and to issue an order to show cause why defendant does not have a right to a jury trial where the government seeks to enforce the civil penalties for unfair competition, for false advertising, or for violations of the Check Sellers, Bill Payers and Proraters Law, authorized under Business and Professions Code sections 17206 and 17536 and Financial Code section 12105, subdivision (d).

Request to Answer Certified Question of State Law Granted

Pitzer College v. Indian Harbor Insurance Company, S239510  – Request to Answer State Law Question Granted – March 22, 2017

The United States Court of Appeals for the Ninth Circuit asked the Supreme Court to decide questions of California law. The federal court ordered briefing deferred pending a determination of  two state law questions on  the notice-prejudice rule with regard to a coverage suit against an insurer.

The issues as restated by the Supreme Court are as follows:  (1) Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis? (2) If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can the notice-prejudice rule apply to the consent provision in this case?

Review Denied (with dissenting justices)

None.

Depublished

None.

March 30, 2017

Video available of California Supreme Court Historical Society book event

Last November, the California Supreme Court Historical Society hosted a panel discussion with Chief Justice Tani Cantil-Sakauye and former Chief Justice Ronald George to celebrate a new book on the history of the California Supreme Court.  There’s now a video of the event.  [Disclosure:  I serve on the Society’s board, and the back of my head is visible in the audience.]

March 30, 2017

Practice tip: While your client’s case is before the Supreme Court, keep him away from the justices

The Daily Journal [subscription] yesterday reported about Sergio Garcia, who was granted a law license by the Supreme Court three years ago when he was an undocumented immigrant.  In her State of the Judiciary speech earlier this week, Chief Justice Tani Cantil-Sakauye mentioned Garcia’s admission to the bar as an example of what happens “when the rule of law stands strong.”

The article — “Lawyer once illegally in US claims thriving practice” — includes Garcia recounting how a non-lawyer friend tried to introduce him to the Chief Justice at a bar event while the Supreme Court was considering whether to admit him as a practicing attorney.  According to Garcia, “he was caught flat-footed,” but the Chief Justice “turned and walked away as fast as she could without saying a word,” presumably to avoid contact with a party to a pending matter.  Garcia said, “Never even give an impression of impropriety.  As a human being, it didn’t feel great.  As an attorney, I get it 100 percent.”

Members of the Supreme Court bar probably don’t have a standard practice of affirmatively advising clients to avoid contact with the court’s justices if the clients have a case pending in the court, because the opportunities for that contact are rare.  It’s not a bad thing to keep in mind, though.

March 30, 2017

Environmental impact report must account for potential sensitive habitat areas

In Banning Ranch Conservancy v. City of Newport Beach, the Supreme Court today holds that an environment impact report “must identify areas that might qualify as environmentally sensitive habitat areas (ESHA) under the California Coastal Act of 1976 (Coastal Act; § 30000 et seq.), and account for those areas in its analysis of project alternatives and mitigation measures.”  Because the EIR in the case before it didn’t do that and because the failure was prejudicial, the court’s unanimous opinion by Justice Carol Corrigan puts a hold on commercial and residential development of a 400-acre coastal zone tract in Orange County.  The court concludes that “[i]nformation highly relevant to the Coastal Commission’s permitting function was suppressed.”

In the quotable department:  Although discussing wildlife, the court misses the opportunity to use the word “critters” in an opinion for the second time in one week.  The opinion does, however, characterize a statute’s terms as “less than crystalline.”

The court reverses the Fourth District, Division Three, Court of Appeal.  It also finds to be “incorrect” a “suggest[ed]” statutory interpretation in a 2008 decision of the Second District, Division Two.

March 29, 2017

“Jerry Brown’s legacy at the high court”

Former Supreme Court Justice Joseph Grodin writes in today’s Daily Journal [subscription] about the mark on the Supreme Court that Jerry Brown has made in his four non-consecutive terms as California’s governor.  Brown has already appointed ten justices, and will probably make his eleventh appointment after Justice Kathryn Werdegar retires in five months.

Grodin, whom Brown appointed to the court in 1982, touts not only the state high court’s national influence, but also its diversity.  He says, “Jerry Brown (along with other recent governors) has contributed to what is, in terms of gender and ethnic background, probably the most diverse court in the land.”  (Chief Justice Tani Cantil-Sakauye recently offered similar praise for Brown.)  Grodin goes on to state that the diversity “is more than a matter of symbol or political correctness.  There are studies which show, and I can attest from my own experience, that diversity has an effect on the nature and quality of discussion which takes place within a deliberative body, enhancing understanding and empathy.”

Grodin also includes a pitch to Brown to pick a judge to replace Justice Werdegar:  “At present, four of the seven justices (including Justice Werdegar) had prior judicial experience, and while the three most recent appointees have performed brilliantly, Justice Werdegar’s retirement provides an opportunity for Brown to retain that balance.  This state’s trial and appellate courts have an abundance of talent to choose from.”

March 29, 2017

Land use opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Banning Ranch Conservancy v. City of Newport Beach, the last undecided case from the January calendar.

Banning Ranch raises these issues:  (1) Did the City’s approval of the project at issue comport with the directives in its general plan to “coordinate with” and “work with” the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval?  (2) What standard of review should apply to a city’s interpretation of its general plan?  (3) Was the city required to identify environmentally sensitive habitat areas – as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) – in the environmental impact report for the project?

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

March 28, 2017

Chief Justice to Legislature: “The rule of law is being challenged”; speech draws national attention

In her annual State of the Judiciary address to the Legislature yesterday afternoon, Chief Justice Tani Cantil-Sakauye showed a willingness to discuss threats to the entire American system of government, not just to California’s judiciary.  In past addresses, the Chief Justice has criticized lack of funding for the state’s courts as compromising access to justice.  (E.g., here and here.)  She did that again this year, but her primary concerns were clearly broader.

Three years ago, the Chief Justice talked about “a different type of civil rights crisis,” one that is “not about the law,” but “about access to it.”  Yesterday, however, her focus was on the foundation of our society — the rule of law — and she warned, “the rule of law is being challenged.”  Cantil-Sakauye gave as examples of the failure of the rule of law the internment of her mother- and father-in-law — and 120,000 others — during World War II, the late 19th Century Chinese exclusion laws, and state laws legalizing forced sterilization.  Although all three branches of government were in place at those times, she said, “it was the forces of fear and prejudice that caused the rule of law to fail.”

Speaking once more of her recent letter to federal authorities asking that immigration agents not “stalk” California’s courthouses, the Chief Justice said that it was her “concern for the rule of law and checks and balances that prompted” her request.  Mention of the letter drew applause from many of the legislators.

The Chief Justice’s address and her letter have attracted considerable media attention, both in California and nationwide.  Derek Hawkins in The Washington Post today said that Cantil-Sakauye “is fast emerging as one of the Trump administration’s most vocal critics in the judiciary” and Alexei Koseff in the Sacramento Bee noted that yesterday’s “pointed remarks struck an unusually political tone for Cantil-Sakauye.”  There is similar coverage on CBS News, and in the San Francisco Chronicle, the Los Angeles Times, the Associated Press, The Recorder [subscription], and the Daily Journal [subscription].

The Chief Justice began her remarks by recognizing and thanking Justice Kathryn Werdegar, who will retire from the court in five months.

March 27, 2017

Statutory warning about possible deportation consequences doesn’t conclusively preclude plea withdrawal

In People v. Patterson, the Supreme Court today holds that a Canadian citizen facing mandatory deportation because of a guilty plea to a drug possession charge might have good cause to withdraw the plea even though he was given a statutory warning that his criminal conviction “may” make him deportable.  The court’s unanimous opinion by Justice Leondra Kruger states that the warning does not necessarily give notice of an “actual risk” of adverse immigration consequences and that, “for many noncitizen defendants deciding whether to plead guilty, the ‘actual risk’ that the conviction will lead to deportation — as opposed to general awareness that a criminal conviction ‘may’ have adverse immigration consequences — will undoubtedly be a ‘material matter[]’ that may factor heavily in the decision whether to plead guilty.”

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

March 27, 2017

Credit card information thief’s eligibility for reduced sentence under Prop. 47 depends on illegal market value analysis

In its second Proposition 47 opinion in four days, the Supreme Court holds that a person previously convicted of a felony for stealing access card account information, which includes credit and debit card information, can have his or her sentence reduced under the 2014 initiative, so long as the reasonable and fair market value of the stolen information is under $950.  The court’s unanimous opinion in People v. Romanowski — by Justice Mariano-Florentino Cuéllar — concludes that stealing access card information is included in the category of crimes described by the proposition as “obtaining any property by theft.”  The initiative did not make “a distinction between tangible and intangible property,” the court says.

The court notes the difficulty in valuing the stolen information, especially since fraudulent use of access cards is a separate crime.  Rejecting both parties’ proposed solutions to the problem (which is not the first time the court has done this), the court concludes that a judge must “identify how much stolen access card information would sell for,” even though the information cannot be sold legally.  The opinion states that there should be no restriction on “looking at evidence of illegal market value.”

The opinion also includes a succinct, alliterative description of the scope of a grand theft statute:  “In sum, section 487 makes it grand theft to steal:  more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim’s person; or any cars or guns.”  A Westlaw search indicates that this is the first use of the word “critters” in a California Supreme Court opinion.

The court affirms the Second District, Division Eight, Court of Appeal.

March 26, 2017

“California’s top justice touts strength of state courts”

Bob Egelko reports in the San Francisco Chronicle.  The headline is misleading, because the article is about a speech by Justice Goodwin Liu, not Chief Justice Tani Cantil-Sakauye.  On Thursday, Justice Liu delivered the 23rd annual William Brennan Lecture on State Courts and Social Justice at NYU Law School.  “A state court can provide protection for basic liberties that otherwise would go unprotected in that state,” Liu said.  He has written about “independent state constitutionalism” before.

Liu’s talk also included commentary about the limits of Alexander Hamilton’s powers of prediction.  The article says that, despite Hamilton’s “forecast that federal judges’ status would protect them from the ‘encroachments and oppressions’ of legislative bodies, Liu said, ‘the modern Supreme Court has not generally strayed far from public opinion.’  ‘Hamilton may have been a constitutional rock star,’ Liu said, ‘but he wasn’t a political scientist.’”

March 25, 2017

Chief Justice criticizes courthouse immigration enforcement, president’s disparagement of federal judges

A week after sending a letter accusing federal agents of “stalking” undocumented immigrants in California’s courthouses, Chief Justice Tani Cantil-Sakauye continued her criticism in an interview with KQED by comparing that conduct to what she saw as a trial judge in domestic violence court.  “I understand what stalking means and the fear that it instills in the victim,” the Chief Justice said.  She explained that the “enforcement tactics in the courthouses have a detrimental effect on safety in the communities,” by inhibiting people from cooperating with law enforcement efforts.

Cantil-Sakauye also had harsh words for the president’s disparaging comments about federal judges, calling the attacks “very threatening to the third branch of government.”

In the interview, the Chief Justice touched briefly on the “tremendous impact” that changes in the court’s composition have had over the last few years, and will continue to have as Justice Kathryn Werdegar prepares to leave the court.  Further, she discussed the “improving” diversity in the state’s courts, praising Governor Brown for being “very proactive in diversifying the judicial branch.”

March 24, 2017

Another Prop. 47 opinion, and one about advising criminal defendants of a plea’s immigration consequences, are filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Romanowski and People v. Patterson, which were both argued on the January calendar.

Romanowski will be the court’s second Proposition 47 opinion in four days, after yesterday’s decision that cashing a stolen check is “shoplifting.”  The Monday decision will determine whether Proposition 47, which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less (Pen. Code, § 490.2), applies to theft of access card information in violation of Penal Code section 484e, subdivision (d).

In Patterson, the court will decide whether defendant was entitled to withdraw his plea (Pen. Code, § 1018) because his trial counsel assertedly provided constitutionally inadequate assistance of counsel during plea negotiations by failing to investigate and advise defendant of the immigration consequences of his plea.

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