April 23, 2014

Supreme Court smackdown

Yes, the heading for this post is definitely hyperbolic, but, in the appellate-procedure world, we’ll take our controversies where we can find them.

In a forthcoming UCLA Law Review, Professor Daniel Bussel and Supreme Court Justice Goodwin Liu will face off over the court’s practice of having its opinion written before it schedules a case for oral argument.

An abstract of Bussel’s article — “Opinions First – Argument Afterwards” — sets the stage:  “For twenty-five years, the California Supreme Court has operated under a bizarre internal operating procedure that requires majority opinions to be written and agreed to prior to oral argument.  This procedure squanders and demeans the parties’ formal opportunity for appellate argument, is inconsistent with traditional common law appellate process, and violates the state and federal Constitutions.”

Justice Liu’s rejoinder is titled, “How the California Supreme Court Actually Works:  A Reply to Professor Bussel.”  We have been unable to find an abstract for that article.

As the putative appellant, Bussel will have the last word, in “The Best of All Possible Worlds? — A Rejoinder to Justice Liu.”

At the beginning of his initial piece, Bussel praises “the professionalism of the court and its staff” for “compl[ying] fully with my public records request and [taking] the time to thoughtfully comment on the resulting analysis.”  Some smackdown!

April 18, 2014

Summary of April 16, 2014, conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 16, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

P. (F.) v. Monier, S216566—Review Granted (issues limited)—April 16, 2014

The court limited the issue on review to be whether a trial court’s error in failing to issue a statement of decision upon a timely request is reversible per se.

After a bench trial regarding allegations that the defendant molested the plaintiff, the trial court found for the plaintiff and ordered the defendant to pay economic and noneconomic damages. Defendant appealed, arguing that the trial court erred by failing to issue a statement of decision, which made it impossible to tell whether the court properly allocated general damages under Proposition 51.  Defendant claimed the error was reversible per se.  In a published opinion, F.P. v. Monier (2014) 222 Cal.App.4th 1087, the Third District held that the erroneous failure to issue a statement of decision was not reversible, because the defendant failed to timely request an allocation of general damages at trial.

Gaines v. Fidelity National Title Insurance Company, S215990—Review Granted [Baxter, J., not voting for review]—April 16, 2014

The case presents the issue whether, instead of dismissing an action for failure to bring it to trial within five years, the trial court should have excluded from the five-year period the time during which the action was stayed for purposes of mediation.  In a published opinion, Gaines vs. Fidelity National Title Insurance Company (2013) 222 Cal.App.4th 25, the Second District, Division Eight, held that the trial court did not err in dismissing the action as to all the defendants named in the original complaint, but did err in dismissing the action as to one later-named defendant.  In rejecting the plaintiff’s argument that additional days should have been excluded from the five-year period, the Court of Appeal found controlling the Supreme Court’s decision in Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717.

Review Denied (with dissenting justices)

Law School Admission Council v. State of California, S216650—Review Denied [Baxter, J., voting for review]—April 16, 2014

The test sponsor of the LSAT challenged the constitutionality of Education Code section 99161.5, which addresses testing accommodations for applicants with disabilities and limits the reporting of those accommodations to law schools. The trial court issued a preliminary injunction preventing the enforcement of section 99161.5 pending trial. In a published opinion, Law School Admissions Council, Inc. v. State (2014) 222 Cal.App.4th 1265, the Third District Court of Appeal reversed, holding section 99161.5 does not violate equal protection, is subject to intermediate scrutiny for commercial speech, does not constitute an invalid special statute, and does not constitute an invalid bill of attainder. Additionally, the court held that the trial court was required to deny the preliminary injunction because section 99161.5 doesn’t as a matter of law violate the First Amendment and the California Constitution’s liberty of speech provision. The petition for review presented the following issues: (1) Did the court of appeal err in reversing the lower court’s equal-protection based preliminary injunction, where section 99161.5 singles out the LSAT for regulation?  (2) Did the Court of Appeal err in evaluating the liberty of speech claim, by failing to subject section 99161.5 to strict scrutiny, and then failing to properly apply the factors that must be considered when evaluating restrictions on commercial speech?


None. At least, no civil cases. But the court did depublish two criminal law opinions this week.

Additional Briefing Requested

Riverside County Sheriff’s Department v. Stiglitz, S206350.

The Supreme Court granted review 15 months ago and limited the issue to whether the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff’s department has the authority to grant a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531.  On Wednesday, the court ordered supplemental briefing — on a tight schedule, possibly indicating that the court wants to put the case on its late-May or June calendar — (1) Assuming that a motion for discovery of officer personnel records may be filed in an administrative proceeding (Evid. Code, § 1043, subd. (a)), and a hearing officer has authority to determine that the motion states good cause for discovery (Evid. Code, § 1043, subd. (b)(3)), is there any existing statutory mechanism that would allow the matter to be transferred to the superior court for an in camera review of the records by a judicial officer (Evid. Code, § 1045, subd. (b))?  (2) If no existing statutory mechanism applies, do we have the authority to create such a transfer mechanism?

April 16, 2014

Will the court have seven permanent justices for its September calendar?

It’s now been over two months since Justice Kennard announced her retirement, which became effective just 11 days ago.  Next month will be the court’s first oral argument calendar without her, and will feature 12 different Court of Appeal justices serving as pro tems.

How many more calendars will the court be short a full complement of justices?  Based on all the Supreme Court appointments made by Governor Brown during this term of office (i.e., a sample size of one), the answer could be two or three, and it’s not a larger number only because the court doesn’t hear oral arguments in July or August.

The previous experience:  Justice Moreno announced his retirement in January 2011, and Governor Brown nominated Justice Liu to replace Moreno more than six months later.  If the same amount of time elapses between Justice Kennard’s announcement and the naming of her successor, it will be Labor Day before Governor Brown makes his nomination.  That would obviously not give the Commission on Judicial Appointments enough time to confirm the nominee before the court’s September calendar, which is scheduled for the same week as the projected nomination.

April 11, 2014

Summary of April 9, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 9, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Larkin v. W.C.A.B. (City of Marysville), S216986—Review Granted—April 9, 2014

The question presented is whether the workers’ compensation benefits provided by Labor Code section 4458.2 extend only to volunteer peace officers and not to regularly sworn, salaried peace officers.  In the course of his employment as a police officer, petitioner sustained physical injuries and sought temporary disability payments at the maximum earnings rate. The workers’ compensation judge determined that the maximum rate applied only to volunteer peace officers and therefore not to petitioner. The Workers’ Compensation Appeals Board agreed, and, in a published opinion, Larkin v. Workers’ Compensation Appeals Board (2014) 223 Cal.App.4th 538, the Third District Court of Appeal affirmed.

Review Denied (with dissenting justices)



Dattani v. Lee, S216117—Depublished Court of Appeal Opinion—April 9, 2014

The issue in this case was whether a plaintiff’s request for dismissal without prejudice of remaining causes of action after an adverse ruling granting summary adjudication to the defendant constitutes a final, appealable judgment.  Plaintiffs filed a four-count complaint, and the trial court granted the defendant’s motion for summary adjudication of the first cause of action. Plaintiffs then filed a request for dismissal of their remaining causes of action. More than 180 days later, the court entered a judgment in favor of the defendant, and, within a month, plaintiffs appealed from the judgment. In a published opinion, Dattani v. Lee (2013) 222 Cal.App.4th 411, the Court of Appeal, First District, Division Three, dismissed the appeal as untimely filed.  It held the order granting summary adjudication, combined with the request for dismissal, created a final, appealable judgment. The California Supreme Court denied the petition for review and, on its own motion, ordered the Court of Appeal opinion depublished.

April 11, 2014

Ineffective counsel opinion filing Monday

The Supreme Court will file its opinion in In re Champion on Monday, this year’s palindromic day (4/14/14).  Champion is a habeas corpus petition, filed in November 1997, related to an automatic death penalty appeal.  The court issued an order to show cause limited to the issue whether trial counsel provided ineffective assistance at the penalty phase of petitioner’s trial.  The case was argued in March.

Interesting facts about this case:  Champion’s trial counsel became a Los Angeles Superior Court Judge and the referee’s report being reviewed by the Supreme Court faults the trial counsel/now judge for “not adequately conduct[ing] a separate, independent investigation,” stating that, although counsel “was a very conscientious, credible attorney,” “a reasonably competent attorney [would] have tried to obtain [numerous pieces of mitigating] evidence” identified in the report.  Because of the former trial counsel’s service on the bench in Los Angeles, the Supreme Court changed its initial appointment of a Los Angeles Superior Court judge as the referee and referred the matter to the Orange County Superior Court.

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

April 5, 2014

Brown could reshape high court

That’s the headline on Maura Dolan’s lead article on the front page of this morning’s Los Angeles Times.  The article — prompted by the retirement, effective today, of Justice Joyce Kennard – notes that it’s been over two decades since there has been more than one Democratic appointee sitting on the California Supreme Court.  However, with “[t]hree of the court’s seven justices, including the two most conservative, . . . in their 70s,” the court “may soon be remade by Democratic Gov. Jerry  Brown if, as expected, he wins another [four-year] term” this November.

Two of the three longest serving jurists face retention elections this year.  Dolan reports that Justice Werdegar has said she will run, but that Justice Baxter “has refused to commit publicly to running.”  (There are still over four months for the justices to file their declarations of candidacy.)  The third justice — Justice Chin — was retained just four years ago and need not face the voters for another eight years, but, according to the article, “acquaintances say he has talked about retiring.”

Dolan’s article, of course, includes the obligatory speculation about whom Governor Brown might name as Justice Kennard’s successor.  The names mentioned are Thomas Saenz, president and general counsel of the  Mexican American Legal Defense and Educational Fund; Stanford University law professor Mariano-Florentino Cuéllar; Second District Court of Appeal Justices Dennis M. Perluss and Jeffrey W. Johnson; U.S. District Court Judges Edward J. Davila and Yvonne Rogers Gonzalez; Sixth District Court of Appeal Justice Miguel Márquez; Third District Court of Appeal Justice Elena Duarte; UCLA  Law School Dean Rachel Moran; UC Davis Law School Dean Kevin Johnson; and First District Court of Appeal Justices James Humes, Martin Jenkins, and Maria P. Rivera.

It has been almost nine years since the court had an African-American justice and three years since the court’s last Latino justice, and, the article says, “Brown faces political pressure to change that.”  But, as Jon Eisenberg (Of Counsel to Horvitz & Levy) is quoted as saying, “The political pressures . . . are one thing, but [the governor] throws in the wild card of doing whatever he feels like doing.”  Indeed, no one saw Justice Liu’s appointment coming.  Well, almost no one.

April 4, 2014

Pro Tem parade begins on May calendar for Kennard-less court [UPDATED]

The Supreme Court this afternoon announced its calendar for early May, the only month in which the court has two oral argument sessions.  The early-May calendar will be the first in 25 years without Justice Kennard on the court.  Because Governor Brown has yet to name Justice Kennard’s replacement, Court of Appeal justices will help decide the cases as pro tem Supreme Court justices.  Not all have been named yet, but there should be a dozen different pro tems, one for each of the 12 cases the court will hear in a little over four weeks.

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

Verdugo v. Target Corporation:  At the Ninth Circuit’s request, the court will answer this state law question — “In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator (‘AED’) for cases of sudden
cardiac arrest?”  (Third District Court of Appeal Justice George Nicholson is the pro tem.)

City of Los Angeles v. County of Kern:  Does 28 U.S.C. section 1367(d) require a party to refile its state law claims within 30 days of their dismissal from a federal action in which they had been presented, or does it instead suspend the running of the limitations period during the pendency of the claims in federal court and for 30 days after their dismissal?  (Third District Court of Appeal Justice Vance Raye is the pro tem.)

Paratransit Inc. v. Unemployment Insurance Appeals Board:  Did the trial court properly find that employee misconduct within the meaning of Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671 disqualified a discharged employee from receiving unemployment insurance benefits?  (Sixth District Court of Appeal Justice Eugene Premo is the pro tem.)

People v. Avila:  [This is an automatic appeal from a July 2005 judgment of death.  The court's website does not list issues for such appeals.]  (With a pro tem to be named later.)

People v. Boyce:   [This is an automatic appeal from a September 2000 judgment of death.  The court's website does not list issues for such appeals.]  (Second District, Division 6, Justice Steven Perren is the pro tem.)

People v. Hensley:   [This is an automatic appeal from an October 1995 judgment of death.  The court's website does not list issues for such appeals.]  (First District, Division Three, Justice Stuart Pollak is the pro tem.)

Gregory v. Cott:  Did the doctrine of primary assumption of the risk bar the complaint for damages brought by an in-home caregiver against an Alzheimer’s patient and her husband for injuries the caregiver received when the patient lunged at her?  (With a pro tem to be named later.)

Beacon Residential Community Association v. Skidmore Owings and Merrill LLP:  May an architect who provides services to a residential developer be liable to the eventual purchasers of the residences for negligence in the rendition of those services?  (With a pro tem to be named later.)  [Disclosure:  Horvitz & Levy represents the defendant in this case.]

People v. Whitmer:  Was defendant properly sentenced on multiple counts of grand theft or did his multiple takings constitute a single offense under People v. Bailey (1961) 55 Cal.2d 514?  (With a pro tem to be named later.)

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

People v. Vargas:  Did the trial court abuse its discretion under People v. Superior Court (Romero) (1996) 13 Cal.45th 497, by failing to dismiss one of defendant’s two strikes, given that they arose from the same act?  (Fourth District, Division One, Justice Terry O’Rourke is the pro tem.)

People v. Capistrano:   [This is an automatic appeal from a January 1998 judgment of death.  The court's website does not list issues for such appeals.]  (Fifth District Court of Appeal Justice Rosendo Pena, Jr., is the pro tem.)

[April 9 Update:  the pro tems to be named later have now been named:

People v. Avila -- First District, Division Four, Justice Timothy Reardon.

Gregory v. Cott -- Second District, Division Eight, Justice Laurence Rubin.

Beacon Residential Community Association v. Skidmore Owings and Merrill LLP -- First District, Division Two, Justice James Richman.

People v. Whitmer -- Sixth District Presiding Justice Conrad Rushing.]

April 4, 2014

Immigration-consequences-of-plea opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. ArriagaArriaga, which was argued in February, raises these issues:  (1) Must a defendant obtain a certificate of probable cause in order to appeal the denial of a motion to withdraw a guilty plea for failure by the court or counsel to advise the defendant of the immigration consequences of the plea in accordance with Penal Code section 1016.5?  (2) Can the People overcome, by a preponderance of the evidence, the presumption that advisements were not given or must the presumption be overcome by clear and convincing evidence?

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

April 4, 2014

Detailed report of Iskanian oral argument

This lengthy post from The UCL Practitioner gives a detailed account of yesterday’s oral argument in Iskanian v. CLS Transportation of Los Angeles, S204032.  Spoiler alert:  The Court seems persuaded that the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overruled the Court’s own decision in Gentry v. Superior Court (2007) 42 Cal.4th 443, with respect to contractual class action waivers in the context of non-waivable labor law rights.

April 2, 2014

Two juvenile justice opinions filing tomorrow

The Supreme Court will file two opinions tomorrow morning regarding juvenile justice.

In In re Alonzo J., argued in February, the court will decide whether a juvenile court may accept a plea of no contest (Cal. Rules of Court, rule 5.778(e)) from a minor without the consent of the minor’s counsel.

In In re D. B., argued in March, the issue is:  Does Welfare and Institutions Code section 733, subdivision (c), preclude committing a juvenile ward to the Division of Juvenile Justice if the wardship petition includes both qualifying and non-qualifying offenses and the most recent offense is a non-qualifying one?

Both opinions can be viewed online tomorrow beginning at 10:00 a.m.

April 1, 2014

No conference held the week of March 31, 2014

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

Among the more interesting civil cases set for argument this week is Iskanian v. CLS Transportation of Los Angeles, S204032.  According to the Court’s website, the case presents the following issues:  (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court’s decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration?

We most recently discussed Iskanian here in the context of the Court’s developing post-Concepcion arbitration jurisprudence.  You also might want to check out this 2012 post from the UCL Practitioner, which includes links to the petition for review, answer and reply.

While in Los Angeles, the Court will be breaking bread with the LA County Bar’s Appellate Courts Section, and retiring Justice Joyce Kennard will be honored for her 25 years of service on the Court.

March 28, 2014

Summary of March 26, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 19, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.  As we have already noted, the Court agreed this week to answer another question of state law pursuant to the Ninth Circuit’s request.

Review Granted


Review Denied (with dissenting justices)

Maral v. City of Live Oak, S215000—Review Denied [Kennard, Werdegar, and Liu, JJ., voting for review]—March 26, 2014

The City of Live Oak passed an ordinance prohibiting the cultivation and sale of marijuana for any purpose within the city limits.  Plaintiffs sued to enjoin the enforcement of the ordinance, arguing that California’s Compassionate Use Act (CUA) and Medical Marijuana Program (MMP) grant them the right to cultivate marijuana.

In a published opinion, the Third District Court of Appeal held the CUA and MMP do not preempt a city’s police power to ban marijuana cultivation within its limits.  Citing the Supreme Court’s recent decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the court stated that the CUA and MMP  do not create a “broad right” to access medical marijuana and neither the CUA nor the MMP preempt city and county authority to regulate or prohibit marijuana distribution facilities.  The Court of Appeal applied Inland Empire’s reasoning to marijuana cultivation in addition to distribution.



Granted Ninth Circuit’s Request to Answer Certified Question of State Law

Greater Los Angeles Agency on Deafness v. Cable News Network, S216351—Ninth Circuit Question of State Law Granted—March 26, 2014

The Ninth Circuit requested that the California Supreme Court answer the following question: The California Disabled Persons Act provides that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and privileges of . . . places of public accommodation . . . and other places to which the general public is invited.” Does the Act’s reference to “places of public accommodation” include web sites, which are non-physical places?

The Greater Los Angeles Agency on Deafness, Inc. (GLAD) requested that Time Warner Inc., which wholly owns Cable News Network, Inc. (CNN), caption all of the videos on its news web sites (such as CNN.com) so that hearing-impaired visitors could have full access to the online videos. When an agreement could not be reached, GLAD filed suit in state court, alleging violations of the California Unruh Civil Rights Act and the California Disabled Persons Act. CNN removed the action to federal court and filed a motion to strike under California’s anti-SLAPP statute.

The Ninth Circuit concluded that the action arose from conduct in furtherance of CNN’s free speech rights and that GLAD could not prove a probability of prevailing on its Unruh Act claims. The court deferred decision on whether GLAD could prove a probability of prevailing on its Disabled Persons Act claims pending resolution of the certified question.

March 27, 2014

Not certifiable

Yesterday, the Supreme Court agreed to answer a state law question at the Ninth Circuit’s request.  Sometimes, however, the Ninth Circuit and other courts resist the urge to ask for the Supreme Court’s help.

Last week, two judges on a Ninth Circuit panel — in Young v. Hilton Worldwide, Inc. — rejected the dissenting judge’s suggestion that the case presented an issue that should at some point be certified to the Supreme Court.  The majority felt an existing Supreme Court decision adequately covered the issue, while the dissenter thought the court possibly “was less careful than it should have been” in that decision.

But at least the Ninth Circuit could have referred the question to the Supreme Court if it had wanted to.  In a case before the California Court of Appeal — Southwick v. Crownover — the appellant asked the Court of Appeal ”to ‘certify the case for review’ to the California Supreme Court and to stay further proceedings until the constitutional issues raised herein are resolved by the high court.”  The appellate court denied the request “as inconsistent with the appellate procedures of this State.”  And inconsistent it is.  Rule 8.548(a) allows the Supreme Court to answer a question of California law at the request only of “the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth.”

Technically, both the Young dissenter and the Southwick appellant were wrong to suggest “certification” at all.  “Certification” is so 12 years ago.  Former rule 29.8 used to allow a court to “certify” a question to the Supreme Court.  But that terminology was eliminated in 2003, in favor of the current provision for a ”request” that the Supreme Court “decide a question of California law.”  According to the Advisory Committee Comment to the rule, “certification” was “delete[d] . . . as an unnecessary formalism.”

March 27, 2014

Three is not enough

Justice William Brennan is famous for, among many other things, his “rule of five” — i.e., without five votes, you can’t do anything at the United States Supreme Court.  A modest corollary for California Supreme Court practice is that you can’t get your petition for review granted without four votes.

One counsel got a harsh, real life lesson in that rule yesterday when his petition for review came up one vote short of a grant.  In Maral v. City of Live Oak, the court denied review, but Justices Kennard, Werdegar, and Liu all voted to take the case.  (The Court of Appeal had upheld a city ordinance prohibiting the cultivation of marijuana for any purpose.)

It’s not very unusual for there to be one or two dissenters when the court denies a petition for review, but a 4-3 denial is rare.  From our records, such a denial hasn’t happened in a civil case since October 2011 and, before yesterday, has happened in civil cases only four times since March 2008.  (Two malicious prosecution actions, an insurance case, and an inverse condemnation matter.)

It’s hard to come so close to success.



March 26, 2014

Supreme Court agrees to answer Ninth Circuit’s disability-rights access-to-internet question

The Supreme Court today agreed to answer a state law question posed by the Ninth Circuit in Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc.

The question concerns California’s Disabled Persons Act (DPA), which, the federal appeals court noted, “provides that ‘[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and privileges of . . . places of public accommodation . . . and other places to which the general public is invited.’ ”  The Ninth Circuit asked, “Does the DPA’s reference to ‘places of public accommodation’ include web sites, which are non-physical places?”

This was a relatively quick decision by the Supreme Court.  It’s been only 48 days since the court filed the Ninth Circuit’s request.  The last two times the court decided whether to answer Ninth Circuit questions, it took 69 days each.

The court now has two DPA cases pending before it courtesy of the Ninth Circuit.

March 26, 2014

Juror peremptory challenge opinion filing tomorrow

The Supreme Court tomorrow morning will file its opinion in People v. Black, which was argued in January.  It is the last of the January calendar cases still without an opinion.

The issue in Black is:  Should a conviction be reversed because of the erroneous denial of challenges for cause to prospective jurors when the defendant exhausts his peremptory challenges by removing the jurors, seeks to remove another prospective juror who could not be removed for cause, and is denied additional peremptory challenges, or must the defendant also show that an incompetent or biased juror sat on the jury?

Although it is a criminal case, the Black opinion might impact appeals involving jury selection in civil actions.  For example, although not cited in the parties’ briefs, the court’s decision in the wrongful death case of Buckley v. Chadwick (1955) 45 Cal.2d 183, 201-203, could be affected.  In Buckley, a divided court concluded that error in the peremptory challenge procedure was not reversible because “the appellant ‘has made no affirmative showing, and does not offer to show, that any of the . . . jurors who were actually sworn and served in the trial of the cause were biased, prejudiced, or in any way unfit to serve as trial jurors.’ ”

The Black opinion can be viewed online tomorrow beginning at 10:00 a.m.

March 25, 2014

Justice Kennard will pro tem only on cases she’s already heard

Emily Green reported in yesterday’s Daily Journal [subscription required] that after Justice Joyce Kennard retires at the end of next week, she will participate in deciding cases in which she has already heard argument, but will not sit as a pro tem justice in any future cases.  Rather, unless Justice Kennard’s successor is quickly nominated and confirmed, a parade of Court of Appeal justices will get temporary promotions to help the Supreme Court with its traditionally heavy three oral argument calendars in May and June.  (We confirmed with the court that there are no plans to appoint Justice Kennard as a pro tem justice for cases to be argued in May or June.)

Justice Kennard’s limited pro tem duties is the route taken by most retiring justices.  A recent exception was Justice Moreno, whose decision to not serve as a pro tem justice at all led to a rush of opinion filings before his retirement date.

By our count, there could be up to 27 opinions on which Justice Kennard’s name will appear as a pro tem justice, including decisions in the dozen cases to be argued next week.

March 21, 2014

Supreme Court grants review for second time in DNA-collection case

The Supreme Court this week granted review in People v. Lowe, which raises the issue whether Penal Code section 296, which permits the collection of DNA from certain felony arrestees, violates the Fourth Amendment under the analysis of Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958].  A 5-4 U. S. Supreme Court held in King that taking and analyzing a cheek swab of a felony arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Lowe is interesting for reasons besides the cutting-edge legal issue involved.

To begin with, this is the second time the Supreme Court has granted review in Lowe.  The court first granted review when King was still pending and, after King was decided, the court transferred the matter back to the Court of Appeal for reconsideration in light of King.  The Court of Appeal did so in a published opinion, concluding that its earlier opinion — holding that “the mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment” — was consistent with King.

Second, the Supreme Court previously had pending another case — People v. Buza — raising the same DNA-collection issue.  In fact, Buza had been fully briefed for several months when the U. S. Supreme Court granted certiorari in King.  Our Supreme Court then put Buza on hold and, after, King was decided, transferred the case back to the Court of Appeal for reconsideration in light of King.  Supplemental briefing is almost complete on remand, but the Buza Court of Appeal now knows that, whatever its decision, the California Supreme Court is likely to grant review and again put the case on hold, this time for Lowe.

Third, coincidentally, the Supreme Court granted review in Lowe just a day before the Ninth Circuit issued an en banc opinion in Haskell v. Harris, rejecting a broad attack on California’s DNA-collection procedure.  The Lowe Court of Appeal opinion relied in part on the Haskell panel opinion that was reheard en banc.

Finally, the Lowe Court of Appeal (Fourth District, Division One, in San Diego) has issued two opinions and had review granted twice, and it wasn’t even that court’s case originally.  The case was transferred — yes, by the Supreme Court — from the Fourth District, Division Two, in Riverside, presumably to help out the Riverside court with its case overload.  There’s one good deed that has not gone unpunished.

March 20, 2014

Summary of March 19, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 19, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

South Coast Framing v. Workers Compensation Appeals Board (Clark), S215637—Review Granted—March 19, 2014

This case presents the following question:  Does a claim for workers’ compensation death benefits have a separate and distinct causation standard and burden of proof requiring that an industrial injury constitute a “material factor” contributing to the employee’s death?

An injured employee died as a result of medication he took after suffering a work-related injury.  The decedent’s wife and children filed a worker’s compensation claim for death benefits.  The workers’ compensation judge found in their favor and the Workers’ Compensation Appeals Board denied reconsideration.  The employer and its insurance carrier then petitioned the Court of Appeal for a writ of review.

In an unpublished opinion, the Court of Appeal, Fourth District, Division One, concluded that the judge’s decision was not supported by substantial evidence and that the decedent’s wife and children had failed to establish a causal connection between his death and the medication he took as a result of the injury. The court annulled the Board’s order denying reconsideration and remanded to the Board with directions to enter a new order denying the claim.

Review Denied (with dissenting justices)




March 19, 2014

Director of the Court’s Criminal Central Staff shares his thoughts on petitions for review

As we recently discussed in this post, in a petition for review it is worthwhile to emphasize that you are seeking review of a published decision, and also to highlight any dissent from the Court of Appeal’s decision.  Our post prompted a helpful email exchange with one of our readers, Norm Vance, Director of the Supreme Court’s Criminal Central Staff.  Mr. Vance shared with us the following thoughts concerning petitions for review (the views expressed are Mr. Vance’s personal views, and not an official statement on behalf of the Court or the justices):

“The fact that an opinion is published is neither a necessary nor a sufficient condition for a grant of review.  It certainly increases the odds that the case will be placed on the Court’s A List, but the vast majority of cases on the A List have a ‘denial’ or ‘denial submitted’ recommendation—essentially meaning that the conference memo author thinks the [Court of Appeal] got it right or at least reached a reasonable/defensible result.”  Mr. Vance added:  “The converse may be more important:  the fact that an opinion is not published can be a significant bar to a grant of review, if not a reason for denying review in and of itself in a given case.”  (ATL note:  These remarks are borne out by the Judicial Council’s statistics, which show the Court grants review of published decisions far more often than it grants review of unpublished decisions even though it receives more petitions seeking review of nonpubs.)

Regarding dissents, Mr. Vance shared the following:  “The fact that there is a dissent in the [Court of Appeal] is a slightly more nuanced consideration.  The court accords respect to the dissenting justice’s position by ensuring that the case is eligible for discussion at the conference (cases on the B List are not open for discussion unless elevated), but the main significance of a dissent . . . is that it provides a reasoned response to/critique of the majority—as should a well-crafted petition for review.”

As you would expect, Mr. Vance explained that the Court’s staff attorneys always read the Court of Appeal opinions before preparing their conference memoranda, so the opinion’s publication status and any dissent “are pretty hard to miss.”  In any case, he wrote, the staff attorneys do not rely on the petition for review to determine an opinion’s publication status.  (And, Mr. Vance tells us, counsel frequently misstate the opinion’s publication status.)  For these reasons, Mr. Vance suggests that, rather than focus on fairly obvious facts such as publication status and the existence of any dissent, counsel should focus their petitions on why review should be granted and not simply “parrot[ing] the arguments raised in the [Court of Appeal] briefs.”

We appreciate Mr. Vance’s insights and have no doubt that the Court’s staff attorneys readily note an opinion’s publication status and any dissent.  That said, his remarks are consistent with our view that the opinion’s publication status and any dissent are key facts to emphasize when arguing why review should be granted.  For example, a petition should emphasize that, because the Court of Appeal’s opinion is published, it creates or deepens a conflict among the published case law.  Likewise, counsel should employ a persuasive dissent to support an argument that the Court of Appeal’s majority opinion is not well reasoned.