September 19, 2016

Summary of September 14, 2016 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, September 14, 2016. 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

United Educators of San Francisco AFT/CFT v. California Unemployment Insurance Appeals Board, S235903 – Review Granted – September 14, 2016

This case presents questions concerning the entitlement of substitute teachers and other on-call paraprofessional employees to unemployment insurance benefits when they are not called to work during a summer school term or session.

The Court of Appeal, First District, Division One, held in a published decision, United Educators of San Francisco AFT/CFT v. California Unemployment Insurance Appeals Board (2016) 247 Cal.App.4th 1235, that public school employees with reasonable assurance of reemployment for the following fall term are not eligible to receive unemployment insurance during the intervening summer term.

Certified Question of State Law Accepted

Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, S236177- Request to Answer State Law Question Granted – September 14, 2016

The United States Court of Appeals for the Second Circuit asked the Supreme Court to decide questions of California law. The court ordered briefing deferred pending a determination whether to restate the questions presented.

The issues as stated by the Second Circuit are: “1. Where the insurance policies of two insurance companies (identified in this question as A and B) cover the same risk, the policy of company A is primary and contains no ‘other insurance’ clause [footnote omitted], and the policy of company B, which is also primary, contains an ‘other insurance’ clause stating, ‘This insurance is excess over: . . . Any of the other insurance or your self-insurance plan that covers a loss on the same basis,’ [footnote omitted] is company A entitled under California law to equitable contribution from company B? [Footnotes omitted.] [¶] 2. Under the circumstances described above and where the amount Company A paid to settle a case exceeds the policy limit of Company B’s policy, is a clause in the insurance policy of Company B stating, ‘All payments made under any local policy issued to you by us or any other insurance company will reduce the Limits of Insurance of this policy’ enforceable under California law?”

Review Denied (with dissenting justices)

None.

Depublished

None.

September 19, 2016

Supreme Court decision could lead to less environmental impact reports

In Friends of the College of San Mateo Gardens v. San Mateo County Community College District, the Supreme Court today gives more latitude to public agencies in determining whether project changes require a new environmental impact report (EIR) (after an EIR was prepared for the original project) or a first EIR (when no previous EIR was prepared because a negative declaration was adopted for the original project).  The Court of Appeal had concluded that changes to a project were a new project and an EIR was thus necessary.  In a unanimous opinion by Justice Leondra Kruger, the Supreme Court holds that the need for an EIR is not based “on any abstract characterization of the project as ‘new’ or ‘old,'” but, rather, on a determination of “whether the previous environmental document retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts.”

The court reverses the First District, Division One, Court of Appeal.  It also disapproves (although not expressly) of a 2006 decision by the Third District Court of Appeal, and agrees with a 2007 decision by the Second District, Division Two.

September 16, 2016

Environmental impact report opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, which was argued on the early-May calendar.  If the case was argued over four months ago and there’s a 90-day limit for issuing opinions, why hasn’t there been a decision yet?  It’s because, a week after argument, the court vacated submission and asked for supplemental briefing.  A new 90-day period started when the supplemental briefing was completed at the end of June.

The Friends case isn’t even the last early-May case to be decided.  That honor goes to People v. Macabeo, in which the court is dealing with the aftermath of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision about warrantless cell phone searches.  The court asked for post-argument supplemental briefing in Macabeo, too, but, unlike in Friends, the court waited until almost the 90th day after argument to order more briefing.  Supplemental briefing was completed — and the 90-day clock restarted — just last week, so a decision is not due until early December.

This is the time of year when there’s usually a drought in Supreme Court opinions, because no cases are argued in July or August.  That drought is occasionally broken by a trickle of opinions in cases, like Friends and Macabeo, when submission is vacated for supplemental briefing.

The Friends case raises this question:  When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Not only did the court direct the parties to file supplemental briefs, it also requested a supplemental brief from the California Natural Resources Agency, with the Governor’s Office of Planning and Research.  The additional briefs were to address:  (1) Under California Environmental Quality Act (CEQA) Guidelines section 15162, what standard of judicial review applies to an agency’s determination that no environmental impact report (EIR) is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration?  (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1482.)  (2) Does CEQA Guidelines section 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute?  (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-1074 with Benton at pp. 1479-1480.)

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

September 14, 2016

Supreme Court will answer Second Circuit insurance questions . . . in some form

The Supreme Court today agreed to answer questions of California insurance law posed by the Second Circuit Court of Appeals.  However, it’s not clear yet what exactly those questions will be.  In Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, the Supreme Court granted the federal appellate court’s request, but deferred briefing “pending the court’s determination whether to restate the question of California law to be decided.”

When the court last took a similar action, it was more than six months before the court restated the question.

 

 

 

September 14, 2016

Assistant Clerk Jorge Navarrete will become new Supreme Court Clerk

Chief Justice Tani Cantil-Sakauye today announced the appointment of Jorge Navarrete as the new (and 27th) Supreme Court Clerk/Administrator.  jorge_e_navarrete_dd610f2c-3141-40de-a4c7-154f873340c9-prvNavarrete is currently the court’s Assistant Clerk/Administrator and has served the court for 20 years.  The announcement notes that Navarrete — a native of Guadalajara, Mexico — is the first Latino to hold the Clerk/Administrator position.

Navarrete will replace Frank McGuire, who is retiring at the end of this month.  McGuire said he is “thrilled that the court has selected Jorge.”  Similarly, McGuire’s predecessor, Frederick “Fritz” K. Ohlrich, praised Navarrete as “smart, energetic, [and] dependable,” and said he is “confident [Navarrete] will serve the Supreme Court, the appellate courts and practitioners, and the public very well.”

September 9, 2016

Chief Justice directs State Bar to submit funding request

One of the Supreme Court’s many non-case-related jobs is to regulate the legal profession.  The Legislature recently adjourned without authorizing the State Bar to collect dues for 2017.  Chief Justice Tani Cantil-Sakauye was involved in the legislative negotiations, as she has been in the past.  Because the Legislature did not pass a dues bill, the Chief Justice yesterday sent a letter — on behalf of the Supreme Court — to the State Bar directing the Bar “to submit a request to the court for an interim Special Regulatory Assessment to fund the Bar’s discipline system until such time as legislation is enacted that provides for its funding.”  The letter states that, “in the absence of annual dues legislation, the Supreme Court has the inherent power as well as the responsibility to impose an interim regulatory fee upon attorneys for the purpose of supporting an adequate, functioning attorney discipline system that protects clients and the public.”

Cheryl Miller reports in The Recorder [subscription] that the letter “preempts a state bar meeting Monday where trustees were scheduled to discuss a dues-order petition to the high court.”

The Chief Justice’s letter also voices the court’s support for “certain public protection and governance reforms” that were included in the bills the Legislature did not pass and that “required no enabling legislation.”  It additionally states that the court “strongly encourages Bar leadership to adopt other good government and public protection reforms.”

September 9, 2016

October calendar will have eight arguments [Updated]

The Supreme Court has announced its October calendar, arguments we at first thought wouldn’t take place.

On October 5 and 6, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Association of California Insurance Companies v. Jones:  (1) Does the Unfair Insurance Practices Act (Ins. Code, § 790, et seq.) give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement, and therefore an unfair trade practice, for purposes of the act?  (2) Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions (a)-(e) of section 2695.183 of title 10 of the California Code of Regulations is a “misleading” statement with respect to the business of insurance? (Cal. Code of Regs., tit. 10, § 2695.183, subd. (j).)

People v. Financial Casualty & Surety, Inc.:  (1) Should the good cause standard under Penal Code section 1305.4 for extension of the period to exonerate bail require a demonstration of a reasonable likelihood of success of returning a fugitive?  (2) When a court finds there has been a diligent investigation to locate a fugitive, does the burden shift under Penal Code section 1305.4 to the People to prove that there is not a reasonable likelihood of success of returning the fugitive?  (3) Does an extension of the period to exonerate bail under Penal Code section 1305.4 commence on the date on which the initial 180-day period expires or on the date on which the trial court grants the extension?

Raceway Ford Cases:  (1) Does the inclusion of inapplicable smog check and smog certification fees in an automobile purchase contract violate the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.)?  (2) Does backdating a second or subsequent finance agreement to the date of the first finance agreement for purchase of a vehicle violate the Act?

Harris v. Superior Court:  (1) Are the People entitled to withdraw from a plea agreement for conviction of a lesser offense and to reinstate any dismissed counts if the defendant files a petition for recall of sentence and reduction of the conviction to a misdemeanor under Proposition 47?  (2) If the defendant seeks such relief, are the parties returned to the status quo with no limits on the sentence that can be imposed on the ground that the defendant has repudiated the plea agreement by doing so?

People v. Melendez:  This is an automatic appeal from an August 2003 judgment of death.  The court’s website does not list issues for such appeals.

People v. Landry:  This is an automatic appeal from a September 2001 (9/11, to be exact) judgment of death.  The court’s website does not list issues for such appeals.

County of Los Angeles Board of Supervisors v. Superior Court:  Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted?
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

McGill v. Citibank, N.A.:  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 will be sitting pro tem.]
[Disclosure:  Horvitz & Levy filed an amicus brief in this case, too, on behalf of the Association of Southern California Defense Counsel.]

[September 16 update:  There have been a few changes in the calendar.  Two cases have been continued, Association of California Insurance Companies to November and McGill to December.  One case has been added.  On October 5, the court will hear argument in People v. Mickel, an automatic appeal from an April 2005 judgment of death.]

September 8, 2016

Unanimous Supreme Court reverses another death penalty

The Supreme Court today affirms the conviction and the special circumstance findings, but reverses the death sentence, in People v. Covarrubias.  In an opinion by Chief Justice Tani Cantil-Sakauye, the court concludes that a prospective juror — a correctional officer — was improperly excused based solely on his responses to a questionnaire asking about his personal views on capital punishment, which he said should be abolished.  According to the court, the prospective juror’s questionnaire answers “were ambiguous, failed to provide an adequate basis to support his excusal for cause, and called for the trial court to conduct oral voir dire.”  The court says that, under U.S. Supreme Court precedent, the error required automatic reversal of the death penalty.

Concerning a trial court’s obligation to sua sponte instruct on a claim-of-right defense, the court disapproves a 2006 decision by the Sixth District Court of Appeal and agrees with a 2014 Third District opinion.

In the most recent 10 death penalty appeals, all decided in the last 10 weeks, and including today’s opinion, the court has reversed 6 death sentences.  (Besides today’s case, see here, here, here, here, and here.)  Except for the 4-3 decision in People v. Grimes, all 10 decisions have been unanimous regarding the death penalty.

[This post has been updated.]

September 6, 2016

“Thirty Years After a Hundred Year Flood: Judicial Elections and the Administration of Justice”

A late-September calendar will not be the only thing Supreme Court related at the State Bar’s annual meeting in San Diego.  On Sunday, October 2, the California Supreme Court Historical Society and the Witkin Legal Institute will present a program about judicial elections, near the 30th anniversary of one of the most significant events in the court’s history:  the election at which three justices lost their seats.  It was an election that the then-new Chief Justice compared to a 100-year flood, hence the program title.

The program panel will include two of the justices who lost in 1986 — Joseph Grodin and Cruz Reynoso.  Joining them will be Dean Erwin Chemerinsky of the UC Irvine School of Law.

The State Bar summarizes the event:

This program covers the California Constitution’s system for electing justices and judges, and how the elections can influence the administration of justice.  Topics include an examination of the 1986 election at which three California Supreme Court justices were removed from the bench.  The program will also involve discussion of campaign and campaign finance limitations on judicial candidates.

Disclosure:  I’m on the Historical Society’s board and am organizing the program.  But I can still say that it should be an enlightening and important program.

September 2, 2016

Summary of August 24 and 31, 2016 conference reports 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 August 24 and 31, 2016. 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

Lopez v. Sony Electronics, S235357 – Review Granted- August 24, 2016

This case presents the following issue: Does the six-year limitations period in Code of Civil Procedure section 340.4, which governs actions based on birth and pre-birth injuries and is not subject to tolling for minority, or the two-year limitations period in Code of Civil Procedure section 340.8, which applies to actions for injury based upon exposure to a toxic substance and is subject to tolling for minority, govern an action alleging pre-birth injuries due to exposure to a toxic substance?

The Court of Appeal, Second District, Division Eight, held in a published decision, Lopez v. Sony Electronics (2016) 247 Cal.App.4th 444, that a personal injury action based on prenatal exposure to toxic substances is governed by the statute providing that there is no tolling of the limitations period for birth and pre-birth injuries during the plaintiff’s minority.

Certified Question of State Law Accepted

Heller Ehrman LLP v. Davis Wright Tremaine LLP, S236208 – Request to Answer State Law Question Granted– August 31, 2016

The Supreme Court agreed to the Ninth Circuit’s request to answer this certified question: Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?  The federal district court’s opinion provides helpful background.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 2, 2016

“California Supreme Court’s term: Following the lead”

Professor Clark Kelso reports in the new California Bar Journal:  “Some of the most interesting decisions during the California Supreme Court’s 2015-16 term were ones where the court essentially followed the lead set by other lawmaking entities, even when that lead may have taken the court in a direction that it otherwise would not have gone by itself.”

August 31, 2016

Supreme Court agrees to answer Ninth Circuit’s law firm finance question

The Supreme Court today granted the Ninth Circuit’s request to answer a question of state law relevant to federal proceedings concerning the dissolution of the Heller Ehrman law firm.  The court grants Ninth Circuit requests more often than not.

In the case — titled, Heller Ehrman LLP v. Davis Wright Tremaine LLP in the Supreme Court — the court has restated the question this way:  “Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?”

The court acted quickly on this request, issuing today’s order just 34 days after docketing the Ninth Circuit’s request.  Sometimes, it takes considerably longer.

August 31, 2016

Justice Liu dissenting statement an influence on juvenile Miranda legislation

The Legislature yesterday passed a bill to revise the procedure for custodial interrogations of minors.  SB 1052, if signed by the governor, would require a non-waivable consultation by a minor with legal counsel before a custodial interrogation and before the waiver of any Miranda rights.  There is an exception for obtaining information an officer believes is “necessary to protect life or property from a substantial threat.”

The legislation was inspired, at least in part, by Justice Goodwin Liu’s dissenting statement (concurred in by Justice Mariano-Florentino Cuéllar) from the denial of review last year in In re Joseph H., the high-profile case of a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights.  In an analysis of the proposed legislation (see Senate Public Safety Committee report here), the bill’s author — Senator Ricardo Lara — quoted from Justice Liu’s statement.

In his statement, Justice Liu said the Joseph H. case raised “an important legal issue” and suggested that the “Legislature may wish to take up this issue in light of this court’s decision not to do so here.”  The Legislature has now done so.

The Joseph H. separate statement was the first from the denial of review in over 50 years.  It has happened in three more cases since then, including two last week.

Justice Liu’s separate statement influenced the Legislature.  It might also influence the U.S. Supreme Court; a certiorari petition in Joseph H. is pending there, with a ruling possible in less than a month.

August 29, 2016

Chief Justice is the swing vote in two 4-3 decisions today

Just a month ago, when the Supreme Court issued a 4-3 decision in an arbitration case, we noted how unusual such a split vote was.  In the last week, however, there have been three more 4-3 decisions, including two today.

Chief Justice Tani Cantil-Sakauye is the only member of the court in the majority on both of today’s cases, writing the court’s opinion in Bristol-Myers Squibb Company v. Superior Court and concurring in Department of Finance v. Commission on State Mandates.  For today at least, she is the California Supreme Court equivalent of fellow Sacramentan Justice Anthony Kennedy.

But last week, the Chief Justice dissented when a 4-3 court overturned the death penalty in People v. Grimes.

Interestingly, in the four 4-3 decisions over the last month, no two majorities have had the same four justices.  In the arbitration case — Sandquist v. Lebo Automotive, Inc. — the majority consisted of the Chief Justice and Justices Werdegar, Liu, and Cuéllar.  In Grimes, it was Justices Werdegar, Liu, Cuéllar, and Kruger.  In Bristol-Myers, it was the Chief Justice and Justices Liu, Cuéllar, and Kruger.  And in Department of Finance, the majority was the Chief Justice and Justices Werdegar, Chin, and Corrigan.

 

August 29, 2016

Divided court finds jurisdiction over out-of-state pharmaceutical manufacturer

In Bristol-Myers Squibb Company v. Superior Court, the Supreme Court today holds that hundreds of non-California plaintiffs can sue a pharmaceutical manufacturer in a California court for injuries allegedly caused by one of the defendant company’s drugs, even though the company is neither incorporated nor headquartered in the state.  [Disclosure:  Horvitz & Levy is co-counsel for defendant Bristol-Myers.]  The majority opinion by Chief Justice Tani Cantil-Sakauye (joined by Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger) concludes that, “[a]lthough [the defendant’s] business contacts in California are insufficient to invoke general jurisdiction, which permits the exercise of jurisdiction over a defendant regardless of the subject of the litigation, . . . the company’s California activities are sufficiently related to the nonresident plaintiffs’ suits to support the invocation of specific jurisdiction, under which personal jurisdiction is limited to specific litigation related to the defendant’s state contacts.”  The court relies on the defendant company’s “extensive contacts with California, encompassing extensive marketing and distribution of Plavix [the alleged injury-causing drug], hundreds of millions of dollars of revenue from Plavix sales, a relationship with a California distributor, substantial research and development facilities, and hundreds of California employees.”

Justice Kathryn Werdegar dissents, for herself and Justices Ming Chin and Carol Corrigan.  She finds “no evidence of contacts with California that bear a substantial connection to the claims of the[ ] nonresident[ ]” plaintiffs.  The dissent claims that “the majority’s decision threatens to subject companies to the jurisdiction of California courts to an extent unpredictable from their business activities in California, extending jurisdiction over claims of liability well beyond our state’s legitimate regulatory interest.”

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

August 29, 2016

Divided court finds water quality mandates are reimbursable

In Department of Finance v. Commission on State Mandates, the Supreme Court today holds conditions imposed by the state on local agencies that operate storm drain systems are state mandates for which — under the California Constitution — the state must reimburse the agencies, even though the conditions were imposed to comply with the federal Clean Water Act.  The majority opinion by Justice Carol Corrigan (joined by Chief Justice Tani Cantil-Sakauye and Justices Kathryn Werdegar and Ming Chin) concludes the conditions resulted from state discretionary action because “no federal law or regulation imposed the conditions nor did the federal regulatory system require the state to impose them.”

Justice Mariano-Florentino Cuéllar (with Justices Goodwin Liu and Leondra Kruger) writes a concurring and dissenting opinion.  The separate opinion faults the majority for upholding the decision of the Commission on State Mandates, which, the dissenters say, “is flawed in its approach and far too parsimonious in its analysis.”

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

August 27, 2016

There will be an October calendar after all

When the Supreme Court announced a rare second September calendar — a special session in San Diego coinciding with the first day of the State Bar’s annual meeting — it looked like that oral argument session would take the place of the usual October calendar.  But now we’ve learned from the court that there will be arguments on October 5 in San Francisco.  The court has also revised its online 2016 calendar to show that there will be oral arguments during the first week of October.

August 26, 2016

Supreme Court Clerk Frank McGuire is retiring

Chief Justice Tani G. Cantil-Sakauye announced today that Frank McGuire is retiring as Court Administrator and Clerk of the Supreme Court of California, effective at the end of next month.  McGuire has been in that position for over four years, and has served in the California court system for 25 years.  (See also here.)

The court’s news release reports that “[t]he court is currently considering its succession plans for the position of Court Administrator and Clerk of the Supreme Court and anticipates announcing those plans in mid-September.”

August 26, 2016

Jurisdiction, reimbursable mandate opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in Bristol-Myers Squibb Company v. Superior Court and Department of Finance v. Commission on State Mandates, which were both argued on the June calendar.

Bristol-Myers is expected to address these questions:  (1) Did the plaintiffs in this action who are not residents of California establish specific jurisdiction over their claims against the nonresident pharmaceutical drug manufacturer?  (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 571 U.S. __ [134 S.Ct. 746, 187 L.Ed.2d 624]?  [Disclosure:  Horvitz & Levy is co-counsel for Bristol-Myers.]

The Department of Finance case raises the issue whether the requirements in the National Pollutant Discharge Elimination System (NPDES) permits issued to real parties in interest by the regional water quality control board state are mandates subject to reimbursement under article XIII B, section 6, subdivision (b), of the state Constitution.

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

August 25, 2016

Supreme Court announces second September calendar — in San Diego.

May is usually the only month during which the Supreme Court has two separate oral argument sessions.  This year, however, the court will be hearing arguments at the beginning and, it announced today, also at the end of next month.  But, this isn’t like May, where the second calendar is an extra one for the court.  The late September calendar is replacing the normal October calendar; atypically, there will be no arguments in October.  Also atypically, all the cases to be argued are civil matters.

The unusual timing of this calendar is likely because the court is taking its show on the road — away from san_diegoits San Francisco, Los Angeles, and Sacramento courtrooms — which it does occasionally.  (See, e.g., here, here, and here.)  This time, the justices will be sitting at the Fourth District, Division One, Court of Appeal in San Diego.  The timing of what the court is calling a “historic special session” coincides with the beginning of the State Bar’s annual meeting in the same city.

On September 29, the court will hear the following cases (with the issue presented as stated on the court’s website):

Augustus v. ABM Security Services, Inc.:  (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks?  (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?  [Disclosure:  Horvitz & Levy filed an amicus brief in the case.]

Orange Citizens for Parks and Recreation v. Superior Court:  Is the proposed development project of low density housing at issue in this case consistent with the city’s general plan?

In re Transient Occupancy Tax Cases:  When a customer books a hotel room through an online travel company, should the occupancy tax levied on the rent charged by the hotel be calculated based on the retail rate paid by the customer to obtain the right to use the room or on the wholesale amount that the hotel receives from the online travel company after that company has deducted its markup and fees?

People v. Miami Nation Enterprises:  Is a payday loan company owned by a federally recognized Indian tribe entitled to tribal sovereign immunity, and thus exempt from state regulation, if the day-to-day management of the business is handled by a third party management company that is not affiliated with the tribe and pays the tribe a small percentage of the gross revenues?

August 22, 2016

Summary of August 17, 2016 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, August 17, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

None.

Case Transferred After Briefing

Gerard v. Orange Coast Memorial Medical Hospital, S225205 – Case Transferred after Review Granted – August 17, 2016

After granting review and full briefing, the Supreme Court transferred the matter to the Court of Appeal with directions to vacate its decision and to reconsider the cause in light of the enactment of Statutes 2015, chapter 505 (Sen. Bill No. 327 (2015-2016 Reg. Sess.)).

The case presents the following questions: (1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Wage Commission Order No. 5-2001 invalid under Labor Code section 512, subdivision (a)? (2) Should the decision of the Court of Appeal partially invalidating the Wage Order be applied retroactively?

In a published decision, Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal.App.4th 285, the Court of Appeal, Fourth District, Division Three, held: (1) the Industrial Welfare Commission wage order for health care employees is invalid to the extent it permits employees to waive their second meal period; (2) this applied retroactively; (3) the employee’s timecards and wage statements were properly authenticated.

Certified Question of State Law Accepted

Troester v. Starbucks Corporation, S234969 – Request for Answer to Question of State Law Granted – August 17, 2016

The Supreme Court granted the Ninth Circuit Court of Appeals’ request to answer the following certified question:  Whether “the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), appl[ies] to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197.”

The question arises in a case alleging the  defendant had violated the Labor Code when it failed to pay its employees for the period of time between clocking-out and closing the retail space.  (Troester v. Starbucks Corporation (C.D. Cal. March 7, 2014), 2014 WL 1004098 [nonpub. opn.].)

Review Denied (with dissenting justices)

None.

Depublished

People for Proper Planning v. City of Palm Springs, S234996 – Depublished Court of Appeal Opinion – August 17, 2016

People for Proper Planning (PPP), a California non-profit organization, appealed the  denial of its petition for writ of mandate. PPP took issue with the City of Palm Spring’s elimination of minimal density requirements for residential development. PPP also filed a complaint for declaratory and injunctive relief which sought to set aside the city’s plan. The trial court denied PPP’s challenge.

The Court of Appeal, Fourth District, Division Two, held in a published decision, People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640, that (1) California Environmental Quality Act (CEQA) exemptions must be narrowly construed when they are relied on by a government agency; (2) a party challenging the exemption has the burden of producing evidence supporting an exception. The Court of Appeal directed the trial court to grant PPP’s petition for writ of mandate.

August 22, 2016

Ninth Circuit asks the Supreme Court to answer an insurance question [Updated]

We noted last month that the Ninth Circuit was likely to be sending an insurance question the Supreme Court’s way in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc.  That’s the case where one of the appeals court judges said at oral argument that he had read five or ten times part of an earlier Supreme Court decision and confessed, “I can’t for the life of me figure out what [the court was] trying to signal to the outside world.”

Today, the Ninth Circuit formally asks the Supreme Court to decipher its prior opinion, although the federal court doesn’t couch its written request quite so bluntly.  The question the Ninth Circuit would like answered is “[w]hether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.”  The Ninth Circuit asserts that “[t]he answer to this question is of exceptional importance to injured parties, employers, and insurance companies doing business in California.”  The case arises from claims of sexual abuse of a middle school student.

[August 24 update:  The Supreme Court docketed the Ninth Circuit’s request yesterday.]

August 22, 2016

Two denials of review, five separate statements, in education cases

The Supreme Court today denied review in a pair of high-profile education rights cases, but did so over the recorded dissents of three justices (one vote too few for review), two of whom — Justices Goodwin Liu and Mariano-Florentino Cuéllar — issued separate statements explaining why the court should hear the cases.  Justice Ming Chin voted for review, but without writing or joining any dissenting statements.

Separate statements on the denial of review continue a practice revived by Justice Liu last year.  In one of today’s cases, Chief Justice Tani Cantil-Sakauye writes a separate statement signed by all the justices announcing the court “has adopted a policy that such statements, when they pertain to an appellate court opinion that has been published in the Official Reports, will also be published, appended to the original appellate court opinion in the Official Reports.”  We’ve said statements like these should be published, but, not to be picky, what about separate statements when review is denied of an unpublished Court of Appeal opinion?  Justice Liu wrote one of those five months ago.  It would be better if all separate statements were published in the Supreme Court official reports, instead of publishing in the Court of Appeal official reports only those statements that can be appended to published opinions.

The Chief Justice’s statement includes the caveats that “of course any separate statement represents the views solely of the authoring justice or any justice signing the statement,” that “an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below,” and that the fact “a justice has not prepared, responded to, or joined a separate statement should not be read as reflecting the views of that justice concerning any separate statement that has been filed by any other justice.”

We anticipated a separate statement in one of the cases — Vergara v. State of California — which concerns the constitutionality of California statutes regarding tenure, retention, and dismissal.  [Disclosure:  Horvitz & Levy filed an amicus brief in the Court of Appeal, and also submitted a letter in the Supreme Court supporting review.]  (The Vergara separate statements are here, after the Court of Appeal opinion.)

Justice Liu writes, “Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review.”  He concludes, “As the state’s highest court, we owe the plaintiffs in this case, as well as schoolchildren throughout California, our transparent and reasoned judgment on whether the challenged statutes deprive a significant subset of students of their fundamental right to education and violate the constitutional guarantee of equal protection of the laws.”  Similarly, Justice Cuéllar criticizes the lower court’s decision — “Nothing in California‘s Constitution or any other law supports the Court of Appeal’s reasoning” — and states that the plaintiffs “raise profound questions with implications for millions of students across California” that “deserve an answer from this court.”

In the other case — Campaign For Quality Education v. State of California, where a divided Court of Appeal upheld dismissal of allegations that the state is failing to provide access to a meaningful education  — Justice Liu writes that “[a] holding of this magnitude, whether correct or not, warrants a full and reasoned examination by the state’s highest court” and that the state’s schoolchildren “deserve to know whether their fundamental right to education is a paper promise or a real guarantee.”  Justice Cuéllar agrees, stating “[i]t is especially important for California’s highest court to speak on this issue.”  (Separate statements here after the Court of Appeal opinion)

In his Vergara statement, Justice Liu concludes that the two petitions “involve different yet complementary claims concerning the importance of resources and reform to improving the education system.  Both cases ultimately present the same basic issue:  whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall.  This issue is surely one of the most consequential to the future of California.”

Education issues are of special interest to Justice Liu.  Besides being a former academic himself — he was a law professor and associate dean at UC Berkeley when he joined the Supreme Court 5 years ago — his early career included a stint as a special assistant to the Deputy Secretary of the U.S. Department of Education during the Clinton Administration, where he developed and coordinated K-12 education policy.  Justice Liu’s official biography states that he “is a prolific and influential scholar on constitutional law and education policy.”

Justice Cuéllar also has an education background — he was on the faculty at Stanford for 14 years — and was the co-chair just a few years ago of the U.S. Department of Education’s National Equity and Excellence Commission.

August 22, 2016

Divided Supreme Court reverses death penalty on rehearing

In the most concrete example of change wrought by Governor Jerry Brown’s two newest Supreme Court appointees, those two justices today form half of a 4-3 majority reversing a death penalty that had been affirmed before they took the bench.  In People v. Grimes, the court — with the two new justices — had granted rehearing after its first opinion over 19 months ago.

One of the new justices — Leondra Kruger — writes today’s opinion that affirms the conviction and special circumstance findings, but reverses the death penalty because the trial court had excluded statements that the Supreme Court holds should have been admitted under the hearsay exception for statements against the declarant’s interest.  Because it concludes that, under any possible standard, the erroneous exclusion was not prejudicial in the guilt phase of the trial but was prejudicial in the penalty phase, the court does not decide the impact of the Attorney General’s failure to make a harmless error argument.  The effect of that omission divided the court when the court first decided the case, and also in another case at the end of last year.

Chief Justice Tani Cantil-Sakauye writes a concurring and dissenting opinion, which Justices Ming Chin and Carol Corrigan join.  She writes, “On rehearing, I have given careful reconsideration to these issues and find even more reason now to conclude that the trial court did not abuse its discretion in excluding one of these statements, and no reasonable possibility that introduction of the other proffered evidence would have affected the outcome at the guilt or penalty phases of defendant’s trial.”  The separate opinion claims that “[t]he majority’s expansion of the against-interest exception represents a significant and . . . misguided shift.”

 

August 22, 2016

Supreme Court enforces statute to prevent prosecutorial forum shopping

In People v. Rodriguez, the Supreme Court today strengthens a statute the court states is intended to “prohibit[ ] prosecutorial forum shopping” in situations where the State dismisses and then re-files criminal charges after a judge has granted a motion to suppress evidence.  The statute requires that any subsequent suppression motion be heard by the “same judge” who granted the original motion if the judge is “available.”  The court’s opinion by Justice Mariano-Florentino Cuéllar concludes that “[a] judge may be found unavailable . . . only if the trial court, acting in good faith and taking reasonable steps, cannot arrange for that judge to hear the motion” and that “[t]he trial court must make its finding of unavailability on the record.”  In the case before it, the court holds the trial court did not adequately comply with the statute.

Justice Carol Corrigan writes a concurring opinion, suggesting that the standard established by the majority may be too stringent a restriction on trial court discretion.

The court reverses the Sixth District Court of Appeal.

August 22, 2016

California gold mining limits not preempted by federal law

In People v. Rinehart, the Supreme Court today holds that a temporarily 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 court’s unanimous opinion by Justice Kathryn Werdegar concludes that “while Congress sought to protect miners’ real property interests, it did not go further and guarantee to them a right to mine immunized from exercises of the states’ police powers.”

The Supreme Court reverses the Third District Court of Appeal.  It disagrees with a 1998 Eighth Circuit Court of Appeals opinion.

August 20, 2016

Latest un-hold order shows Supreme Court’s continued interest in evaluating lengthy juvenile sentences

The Supreme Court occasionally will un-hold a case, meaning it will ask for briefing in a matter that was originally taken as a grant-and-hold case with the expectation that the court would not issue an opinion.  (See, e.g., here and here.)  The court issued an un-hold order in People v. Contreras this week.

Contreras was on hold pending the decision in People v. Franklin, which was itself an un-hold case.  The Franklin opinion held that the constitution proscribes mandatory sentences for homicides committed by juveniles that are the “functional equivalent” of life without parole, but also concluded that delaying parole eligibility for 25 years is not functionally equivalent to life without parole.

The Contreras un-hold order directs the parties to brief whether a total sentence of 50 years to life or 58 years to life is the functional equivalent of life without the possibility of parole for juvenile offenders.

August 19, 2016

Opinion in reheard death penalty case filing Monday, along with dredge mining and suppression motion opinions

On Monday morning, the Supreme Court will issue three opinions, including its decision in People v. Grimes, which was argued on the late-May calendar.  Actually, it will be the second opinion in Grimes and it was the third argument, because the court granted rehearing after its first opinion over 19 months ago.

Grimes is an automatic appeal from a January 1999 judgment of death.  The court’s website does not list issues for such appeals, but one important issue is the standard of review for whether an error is prejudicial when the Attorney General doesn’t argue that the error was harmless.  The harmless error issue split the court when the case was first decided.  In another case, at the end of last year, the court indicated how the court — with two new justices since the first Grimes opinion — might divide on the issue.

The court will also file opinions in People v. Rinehart, which was argued on the June calendar, and in People v. Rodriguez, which, like Grimes, was argued on the late-May calendar.

Rinehart is expected to decide whether the Mining Act of 1872 (30 U.S.C. § 22 et seq.) preempts California Fish and Game Code sections 5653 and 5653.1 with respect to the use of vacuum and suction dredging equipment.

In Rodriguez, the court limited the issues to these:  (1) Does Penal Code section 1538.5, subdivision (p) vest the trial court with discretion to determine whether the judge who heard a defendant’s original motion to suppress is “available” to hear a subsequent motion, and if so, what considerations should guide the trial court in exercising that discretion?  (2) Did the trial court err in concluding that the original judge was “unavailable” to hear a renewed motion to suppress within the meaning of Penal Code section 1538.5, subdivision (p)?

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

August 18, 2016

Summary of August 10, 2016 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, August 10, 2016. 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

Kurwa v. Kislinger, S234617 – Review Granted – August 10, 2016

This case presents the following issue: Can plaintiff take an appeal in the current posture of this litigation?

In its 2013 opinion arising from earlier proceedings in this case, the Supreme Court held that “the parties’ agreement holding some causes of action in abeyance for possible future litigation after an appeal from the trial court’s judgment on others renders the judgment interlocutory and precludes an appeal under the one final judgment rule.” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1100.)  The action then returned to the trial court, where the plaintiff sought to extricate himself from his earlier stipulation and then sought to amend his complaint, before again appealing from the original 2010 judgment.

The Court of Appeal, Second District, Division Five, held in an unpublished decision, Kurwa v. Kislinger (Apr. 7, 2016, B264641) 2016 WL 1403371 [nonpub. opn.], that Kurwa had taken an untimely appeal from a nonfinal judgment, and dismissed the appeal.  The Supreme Court has again granted review.

Review Denied (with dissenting justices)

John Doe v. University of Southern California, S234578 – Review Denied [Liu, J. and Cuéllar, J., voting for review] – August 10, 2016

Student petitioned for writ of administrative mandate challenging his suspension based on findings that he violated student conduct code.  The issues are whether: (1) student was afforded a fair hearing; and (2) whether there was sufficient evidence to support the Appeals Panel’s finding that he violated the Student Conduct Code.

The Court of Appeal, Second District, Division Four, held in a published opinion, John Doe v. University of Southern California (2016) 246 Cal.App.4th 221, that: (1) the student was not afforded fair notice of the accusations against him; (2) the student was not afforded a fair hearing; and (3) insufficient evidence supported the university’s findings of student code violations.

Depublished

Brooks v. CarMax Auto Superstores California, S235268 – Depublished Court of Appeal Opinion – August 10, 2016

The buyer of a “certified” used vehicle brought an action against the dealership seller for violations of the Consumer’s Legal Remedies Act (CLRA) and Unfair Competition Law (UCL) based on dealership’s alleged failure to comply with statutory requirements for selling a certified used vehicle.

The Court of Appeal, Fourth District, Division One, held in a published opinion, Brooks v. CarMax Auto Superstores California, LLC (2016) 246 Cal.App.4th 973, that: (1) violation of certified used vehicle statute is not “per se” actionable under the CLRA or UCL absent a showing of injury; (2) certified quality inspection document satisfied statutory requirements for a report “indicating all the components inspected”; and (3) dealership “provided” buyer with certified quality inspection document by placing document in vehicle’s glove box.  The Supreme Court ordered the opinion depublished.

Marriage of Miller and Cooper, S235113 – Depublished Court of Appeal Opinion – August 10, 2016

In a marital dissolution case, the Superior Court found investment accounts to be the wife’s separate property, found the wife made a down payment from her separate property on a house and ordered that she be reimbursed in that amount, awarded the wife credits for repair and maintenance expenses during the time she lived in the house after separation, and denied the husband’s request to charge the wife the fair rental value of the house.

The Third District Court of Appeal held in a published decision, In re Marriage of Cooper (2016) 247 Cal.App.4th 983, that: (1) wife failed to overcome the presumption that jointly titled investment accounts acquired during marriage in joint title form were community property; (2) evidence supported finding that wife had a right to reimbursement for her expenditures on jointly titled investment accounts; (3) wife’s oral testimony was insufficient to support the trial court’s finding that she paid the down payment on community property marital residence with her separate property; (4) trial court was required to grant husband’s request to charge wife the fair rental value for her exclusive use of house only as to the period when husband’s redundant dissolution action was not pending; and (5) wife was entitled to reimbursement from the community for her expenditures to maintain the house only as to the period when wife was charged fair rental value.  The Supreme Court ordered the opinion depublished.

August 18, 2016

Is another separate statement in the works regarding the denial of review?

Within the last year, Justice Goodwin Liu has revived a long-dormant practice of issuing a separate statement explaining the reasons for a dissent from the denial of a petition for review.  (See here and here.)  It’s happened twice since October 2015.  We might be due for another.

In the high-profile Vergara v. State of California case concerning the constitutionality of teacher tenure laws, the Supreme Court’s time to rule on the pending petition for review expires this coming Monday.  [Disclosure:  Horvitz & Levy filed an amicus brief in the Court of Appeal, and also submitted a letter in the Supreme Court supporting review.]  No decision on the petition was announced after yesterday’s conference, and there are no more regular court conferences before Monday.  It’s unusual for a petition for review ruling to be announced other than on a conference day.  The lack of a ruling yesterday on the Vergara petition suggests that something’s up.

The something could be a separate statement concerning the denial of the petition for review.  Justice Liu’s previous dissenting statements were both filed on non-conference days, either on or one court day before the last day for a ruling on the petitions.

August 18, 2016

Class action by retired and resigned state employees allowed to continue

In McLean v. State of California — a class action on behalf of former state employees — the Supreme Court today holds statutes concerning the payment of final wages to an employee who “quits” apply also to an employee who retires or resigns.  The unanimous opinion by Justice Leondra Kruger finds that “the ordinary meaning of the word ‘quit’ is broad enough to encompass a voluntary departure from a particular employment, whatever its motivation.”  The court also concludes that it is OK for an employee to sue the state instead of the specific state agency for which she worked.

The court affirms the Third District Court of Appeal.

August 18, 2016

Supreme Court bars conviction for both embezzlement and grand theft by larceny

In People v. Vidana, the Supreme Court today holds that the same course of conduct cannot support a conviction for both grand theft by larceny and embezzlement.  The unanimous opinion by Justice Ming Chin, among other things, delves into the history of 1927 legislation to resolve a conflict in the case law.  The court concludes that statutes defining larceny and embezzlement “are different statements of the same offense” even though they “have different elements and neither is a lesser included offense of the other.”

The court affirms the Fourth District, Division Three, Court of Appeal.  It also effectively overrules language in one of its own decisions (from 1986) and it disapproves a 2011 opinion by the Fourth District, Division One.

August 17, 2016

Two two-vote dissents from review denials

As we wait for results of today’s Supreme Court conference to be published tomorrow morning, it’s not too late to note that at last week’s conference the court denied two petitions for review over the recorded dissents of two justices in each case.

In Doe v. University of Southern California, the Court of Appeal held, among other things, that a male student was denied a fair hearing by his university before it found he had violated a conduct code while participating in a group sexual encounter at a fraternity party.  Justices Goodwin Liu and Mariano-Florentino Cuéllar recorded votes to grant the university’s petition for review.

Justices Ming Chin and Carol Corrigan recorded votes to grant review in People v. Nicholes.  The Court of Appeal in that case applied a 2015 Supreme Court decision — People v. Prunty — to strike a gang sentence enhancement.  Justice Chin dissented in Prunty, signing Chief Justice Tani Cantil-Sakauye’s concurring and dissenting opinion.  Justice Corrigan filed her own concurring and dissenting opinion.

August 17, 2016

Supreme Court grants unusual Ninth Circuit request

The Supreme Court today granted a Ninth Circuit panel’s request to answer a state law question.  The order — in Troester v. Starbucks Corp. — is not unusual; the Supreme Court more often than not obliges the federal appellate courts.  What is out of the ordinary is the Ninth Circuit’s request.

In Troester, the Ninth Circuit wants the Supreme Court to decide whether “the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), appl[ies] to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197.”

However, this question has already been decided in a published opinion by a different Ninth Circuit panel than the one that is considering the Troester case.  Just three months ago, that other panel concluded the de minimis doctrine does in fact apply to California wage claims.  (Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069, 1081, fn. 11.)  Under the general Ninth Circuit “law of the circuit” rule, Corbin would normally be controlling — a 3-judge panel is “bound by our prior decisions interpreting state as well as federal law in the absence of intervening controlling authority.”  (F.D.I.C. v. McSweeney (9th Cir. 1992) 976 F.2d 532, 535.)

A California Supreme Court decision could apparently be that “intervening controlling authority” (see TwoRivers v. Lewis (9th Cir. 1999) 174 F.3d 987, 996; see also Miller v. Gammie (9th Cir. 2003) 335 F.3d 889, 892-893 (en banc)), but it seems quite unusual for a Ninth Circuit panel to affirmatively solicit that authority.

In the Troester request — made in an order that is unpublished, which is itself unusual, if not unprecedented — the Ninth Circuit panel says, “we agree to accept and follow the [Supreme] Court’s decision.”  (See Cal. Rules of Court, rule 8.548(b)(2) [request for a Supreme Court answer must include “a statement that the requesting court will accept the decision”].)  Because simply asking the question after Corbin was decided might not be consistent with the “law of the circuit” rule, it is uncertain whether that’s a promise the Troester panel can keep.

 

August 17, 2016

Employment, embezzlement/grand theft opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in McLean v. State of California and People v. Vidana, which were both argued on the late-May calendar.

McClean is expected to answer these questions:  (1) When bringing a putative class action to recover penalties against an “employer” under Labor Code section 203, may a former state employee sue the “State of California” instead of the specific agency for which the employee previously worked?  (2) Do Labor Code section 202 and 203, which provide a right of action for an employee who “quits” his or her employment, authorize a suit by an employee who retires?

The issue in Vidana is whether a defendant can be convicted of both embezzlement (Pen. Code, § 503) and grand theft by larceny (Pen. Code, § 487(a)) for the same conduct?

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

August 15, 2016

Supreme Court reverses death penalty

The Supreme Court today affirms the conviction, but reverses the death penalty and one special circumstance finding in People v. Nelson.  The court is unanimous in reversing the death penalty, but splits 5-2 regarding the special circumstance finding.

The court’s opinion by Justice Goodwin Liu concludes that the trial court improperly inquired into the jury’s penalty phase deliberations in a way that was “unique and egregious,” and then dismissed a juror, after the jurors reported they were deadlocked.

Justice Carol Corrigan, joined by Justice Ming Chin, dissents from the reversal of one of the special circumstance findings.

August 15, 2016

No jury trial for reasonably probable dedication requirement in eminent domain cases

In City of Perris v. Stamper, the Supreme Court today holds that the court, not a jury, is to decide a particular valuation question in eminent domain cases.  If the government condemns a portion of undeveloped property, which it would have lawfully required the owner to dedicate as a condition of developing the remainder of the property, under certain circumstances, the owner is entitled to compensation based on the undeveloped state of the property rather than its highest and best use.  The court’s opinion by Justice Goodwin Liu states that the constitutionality of a reasonably probable dedication requirement is an issue for the court.  It also concludes that the rule requiring a lesser valuation might not be applicable in this case.

Justice Mariano-Florentino Cuéllar writes a concurring and dissenting opinion.  He agrees on the jury trial issue, but labels the majority’s rule permitting a higher valuation a “windfall it has now required public agencies to pay to random, lucky property owners.”

The court reverses the Fourth District, Division Two, Court of Appeal.  On one point, it disapproves a 1994 Sixth District opinion.

August 13, 2016

Ninth Circuit overturns murder conviction that Supreme Court had affirmed

In Hardy v. Chappell, a divided Ninth Circuit panel earlier this week ordered habeas corpus relief for a defendant whose death sentence the California Supreme Court had reviewed twice.  On direct appeal, the Supreme Court affirmed the judgment of death.  (People v. Hardy (1992) 2 Cal.4th 86.)  On a habeas petition 15 years later, the court vacated the death penalty — but not the conviction — based on deficient representation by the defendant’s attorney.  (In re Hardy (2007) 41 Cal.4th 977.)  The Ninth Circuit now goes further, concluding the ineffective lawyering required reversal of the guilt judgment, too.

The Supreme Court’s habeas opinion was unanimous, the district court denied the defendant’s federal habeas petition, and this week’s Ninth Circuit decision drew a strong dissent.  The Court of Appeals majority nonetheless found that the “case does not present a close question” and that the Supreme Court’s opinion was “objectively unreasonable.”

This is not the first time — indeed, not even the first time this year — that the Ninth Circuit and the Supreme Court have been at odds on habeas matters.  (See, e.g., here and here.)

August 12, 2016

Eminent domain, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in City of Perris v. Stamper and People v. Nelson, which were both argued on the late-May calendar.

City of Perris is expected to answer these questions:  (1) Is the constitutionality of an otherwise reasonably probable dedication requirement that a governmental entity claims it would have required in order to grant the property owner permission to put his or her property to a higher use a question that must be resolved by a jury pursuant to article I, section 19 of the California Constitution?  (2) Was the dedication requirement claimed by the City of Perris a “project effect” that the eminent domain law requires to be ignored in determining just compensation?

Three weeks ago, the court decided another eminent domain case.

Nelson is an automatic appeal from a September 1995 judgment of death.

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

August 11, 2016

Erroneous dismissal of juror causes death penalty reversal

The Supreme Court today unanimously reverses the conviction and death penalty in People v. Armstrong because the trial court improperly discharged a juror for failing to deliberate regarding the defendant’s guilt.  Applying a heightened standard of review and “remind[ing] trial courts that the removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury,” the court’s opinion by Chief Justice Tani Cantil-Sakauye concludes reversal is required because the discharged juror’s “inability to perform her duty as a juror does not appear in the record as a demonstrable reality” and is not “‘manifestly supported’ by th[e] evidence.”  However, the court rejects the defendant’s contention that the trial court should have severed three sets of charges against him.

August 11, 2016

Supreme Court allows attorney fee based on percentage of class action recovery

In Laffitte v. Robert Half International Inc., the Supreme Court today holds that attorney fees for class counsel can be calculated as a percentage of a common fund preserved or recovered in the litigation.  Upholding a fee award of one-third of a $19,000,000 settlement in a class action employment lawsuit, the unanimous opinion by Justice Kathryn Werdegar concludes that the court’s decision in Serrano v. Priest (1977) 20 Cal.3d 25 requiring a calculation of fees based only on attorney time applies to “private attorney general” cases.  However, the court does approve of “double check[ing] the reasonableness of the percentage fee through a lodestar calculation” that considers the amount of attorney time spent on the case.

The court says that it is “join[ing] the overwhelming majority of federal and state courts in holding that when class action litigation establishes a monetary fund for the benefit of the class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created.”

Although signing the court’s opinion, Justice Goodwin Liu writes a separate concurrence “to suggest practices that may help to promote accuracy, transparency, and public confidence in the awarding of attorneys’ fees in class action litigation.”  He does so, he says, because “[p]ublic confidence in the fairness of attorney compensation in class actions is vital to the proper enforcement of substantive law.”

The Supreme Court affirms the Second District, Division Seven, Court of Appeal.  It disapproves a 1981 decision by the Second District, Division Two.

August 11, 2016

Supreme Court affirms death penalty for 35-year-old murder

The Supreme Court today affirms the death sentence for a 1981 murder in People v. Burgener.  One reason for the long delay between crime and affirmance is that this is the fourth time the defendant’s case is before the court.  In 1986, the court affirmed the conviction, but reversed the death penalty; in 2003 and 2009, the court reversed the penalty two more times.  (Last year, the court affirmed a death sentence for a 1979 murder.  The delay there, however, was because the defendant wasn’t even charged until 2002.)

The court’s unanimous opinion, authored by Justice Goodwin Liu, rejects the defendant’s claim that the trial court erred in allowing him to represent himself at a hearing on his motion to modify the penalty verdict.  (The court’s 2009 reversal was because the trial court had not adequately warned the defendant of the risks of self-representation at an earlier hearing on the same motion.)

August 10, 2016

Class action attorney fees opinion and two death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in Laffitte v. Robert Half International Inc. and People v. Burgener, which were argued on the late-May calendar, and in People v. Armstrong, which was argued on the June calendar.

Laffitte raises the issue whether Serrano v. Priest (1977) 20 Cal.3d 25 permits a trial court to anchor its calculation of a reasonable attorney’s fees award in a class action on a percentage of the common fund recovered.

Burgener is an automatic appeal from a December 2009 judgment of death.  Armstrong is an automatic appeal from a January 2005 judgment of death.

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

August 8, 2016

5-2 Supreme Court holds anti-SLAPP statute protects city council members’ votes

In City of Montebello v.Vasquez, a divided Supreme Court today holds that the anti-SLAPP statute — Code of Civil Procedure section 425.16 — covers an action against city council members for voting on a waste hauling contract in which they had a financial interest.  Also — and resolving a conflict in the Court of Appeal case law — the court concludes that an exemption from the statute for public enforcement actions is inapplicable to the case.  The court’s decision means the merits of the lawsuit are subject to an early screening procedure reserved for actions arising out of a person’s right of petition or free speech.  The court’s 5-2 opinion, by Justice Carol Corrigan, is the second in 7 days to broadly interpret the anti-SLAPP statute’s scope.

Justice Goodwin Liu, joined by Justice Leondra Kruger, dissents from the conclusion that the anti-SLAPP procedure can apply to an action based on an elected official’s vote.  According to Justices Liu and Kruger, the majority’s contrary holding “expands the anti-SLAPP statute beyond its proper bounds, making it harder to combat public corruption in government contracting and other abuses of power.”

The court reverses the Second District, Division One, Court of Appeal.  On the public enforcement exemption issue, the court disapproves 2003 and 2006 decisions by the Second District, Division Seven, Court of Appeal.  Regarding that issue, the court follows the reasoning of a 2012 opinion by the Fourth District, Division Two.  In its anti-SLAPP decision last week, the Supreme Court approved of this same opinion on a different issue.

August 5, 2016

Another anti-SLAPP opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in City of Montebello v.Vasquez, which was argued on the late-May calendar.

The case raises the issue whether votes by city officials to approve a contract constituted conduct protected under Code of Civil Procedure section 425.16 — the anti-SLAPP statute — despite the allegation that they had a financial interest in the contract?

The opinion will come just one week after the court decided Baral v. Schnitt, which also concerned the anti-SLAPP statute.

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

August 4, 2016

Conference on the California Supreme Court

We’ve received a save-the-date notice for the January 13, 2017, Conference on the Supreme Court of SCOCA Save the Date_V2California.  The conference will be presented by Berkeley Law’s California Constitution Center — “the first and only center at any law school devoted exclusively to studying the constitution and high court of the state of California” — and by the Hastings Law Journal.  Horvitz & Levy partner Jeremy Rosen is tentatively scheduled to be a panelist on one of the programs.

August 4, 2016

Supreme Court allows Home Depot stay-away probation condition

In People v. Moran, the Supreme Court today upholds a probation condition barring from all Home Depots and adjacent parking lots a person who pleaded no contest to shoplifting at a Home Depot store.  The unanimous opinion by Justice Kathryn Werdegar rejects the Court of Appeal’s holding that the condition was unconstitutionally overbroad and violated the defendant’s constitutional right to travel.  Finding it a “struggle[ ] to perceive how the condition curtails [the defendant’s] right to free movement in any meaningful way,” the court explains that, “[a]lthough criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible.”

The court reverses the Sixth District Court of Appeal.

August 4, 2016

No conference held the week of August 1, 2016

The Court held no conference this week.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

August 3, 2016

8 arguments on Supreme Court’s September calendar

After its traditional two-month break from oral arguments, the Supreme summer-endsCourt will hear 8 arguments (in 9 cases) in September.  Several of the cases were continued from the late-May or June calendars.

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

Kesner v. Superior Court and Haver v. BNSF Railway Company:  If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?
These two cases were consolidated for argument and opinion, and the argument was continued from the June calendar.  The argument will be 80 minutes, instead of the normal 60, with each party having 20 minutes, instead of the normal 30, to argue.
[Disclosure:  Horvitz & Levy is appellate counsel for real party in interest Pneumo Abex LLC in the Kesner case.]

Augustus v. ABM Security Services, Inc.:  (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks?  (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?
[Disclosure:  Horvitz & Levy filed an amicus curiae brief in the Augustus case on behalf of the United States Chamber of Commerce.]

Maas v. Superior Court:  Does Code of Civil Procedure section 170.6 permit a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus?
Review was granted on the court’s own motion in this case.
The argument was continued from the late-May calendar.

People v. Thompson:  This is an automatic appeal from a June 1993 judgment of death.  The court’s website does not list issues for such appeals.

People v. Williams:  This is an automatic appeal from a February 2005 judgment of death.  The court’s website does not list issues for such appeals.

Horiike v. Coldwell Banker Residential Brokerage:  When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code section 2079.13, subdivision (b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality, and counseling to both?
The argument was continued from the June calendar.
[Disclosure:  Horvitz & Levy is lead appellate counsel for Horiike.]

Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc.:  (1) Does the delegation — by a health care service plan (HMO) to an independent physicians association (IPA), under Health and Safety Code section 1371.4, subdivision (e) — of the HMO’s responsibility to reimburse emergency medical service providers for emergency care provided to the HMO’s enrollees relieve the HMO of the ultimate obligation to pay for emergency medical care provided to its enrollees by non-contracting emergency medical service providers, if the IPA becomes insolvent and is unable to pay?  (2) Does an HMO have a duty to emergency medical service providers to protect them from financial harm resulting from the insolvency of an IPA which is otherwise financially responsible for the emergency medical care provided to its enrollees?
In February, the court invited the Department of Managed Health Care (DMHC) to serve and file an amicus curiae brief expressing its views on the following two-part question:  In light of the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.) and the DMHC’s implementing regulations, does a health care service plan owe a common law tort duty of care to non-contracting emergency service providers, who provide emergency care on a statutorily compelled basis to the health plan’s enrollees, in either (1) making or (2) continuing a delegation of its financial responsibility for payment of the providers’ claims to an individual practice association?

People v. Winbush:  This is an automatic appeal from a July 2003 judgment of death.  The court’s website does not list issues for such appeals.

August 3, 2016

Probation conditions opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Moran, which was argued on the late-May calendar.

The issue in Moran is whether the condition of probation barring defendant from all Home Depot stores and their parking lots after he was convicted of shoplifting at a single Home Depot store was unconstitutionally overbroad as impinging on his constitutional right to travel.

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