April 7, 2013

Large early May calendar, including one case with three pro tem justices

The Supreme Court has announced its early May calendar. May is the only month with two calendars. There is another group of oral arguments scheduled for the end of the month, with the June calendar the following week. With 14 cases over 3 days, the early May calendar is a heavy one. The late May and the June calendars are likely to be heavy, too, as the court often hears a large number of cases before July and August, the two months during which the court holds no oral arguments.

The early May calendar will include one case — Western States Petroleum Assn. v. State Board of Equalization – in which three Court of Appeal justices will be sitting temporarily in place of recused Justices Baxter, Chin, and Corrigan. Having three recusals in the same case is unusual, but it’s not a record. As recently as two years ago, the entire Supreme Court recused itself in one matter.

The court will also be hearing argument in one of the court’s oldest cases — Zhang v. Superior Court. The court granted review in Zhang more than three years ago. It’s not the oldest case, however. For example, review was granted in Loeffler v. Target Corporation in September 2009. But Loeffler might be nearing an argument date, possibly on the second May or the June calendar; the court assigned a pro tem justice to the case three weeks ago.

On May 7, 8, and 9, the court will hear the following cases in San Francisco (with the issue(s) presented as stated on the court’s website):

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority: Under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.), is a public agency required to evaluate a project’s potential traffic and other impacts using a baseline consisting of the existing physical conditions in the affected area during the period of environmental review, or may an agency elect to evaluate the impacts of a project only against projected future conditions?

Sierra Club v. Superior Court: Is Orange County‘s computer database of public land records exempt from disclosure under the Public Records Act (Gov. Code, § 6250 et seq.) as a “computer mapping system[]” (Gov. Code, § 6254.9, subd. (b)), or is that term limited to computer programs that read such a database?

Rose v. Bank of America: Can a cause of action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) be predicated on an alleged violation of the Truth in Savings Act (12 U.S.C. § 4301 et seq.), despite Congress’s repeal of the private right of action initially provided for under that Act? [Disclosure: Horvitz & Levy filed an amicus curiae brief in this case.]

People v. Mata: (1) Did the trial court err in reseating a challenged prospective juror following defendant’s successful Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79)? (2) Did the defense impliedly consent to reseating the juror? (3) If defense counsel did not consent, was the error reversible per se or subject to harmless error analysis?

People v. Cottone: Did the Court of Appeal err by holding (a) that a prior sexual offense committed by defendant when he was under the age of 14 could not be admitted as propensity evidence under Evidence Code section 1108 without a finding by the jury that he appreciated the wrongfulness of his actions at the time he committed the prior offense, and (b) that the failure to instruct the jury on this question constituted reversible error?

People v. DeHoyos: [This is an automatic appeal from an August 1993 judgment of death. The court’s website does not list issues for such appeals.]

Martinez v. Brownco Construction Co., Inc.: When a plaintiff makes two reasonable settlement offers under Code of Civil Procedure section 998, both of which expire by operation of law, does the second offer extinguish the first such that the later offer is the operative one for purposes of the cost-shifting provisions of section 998, subdivision (d)?

Marriage of Green: Did the Court of Appeal err in concluding that one spouse’s four years of CalPERS service credits, which were purchased partly with community funds and were based on his military service before the marriage, were not entirely his separate property and had to be allocated between community and separate
property?

Ceja v. Rudolph & Sletten, Inc.: Is a person’s good faith belief in the validity of a marriage measured by an
objective or subjective standard for the purpose of determining the person’s status as a putative spouse under Code of Civil Procedure section 377.60?

Zhang v. Superior Court: (1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, § 17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action? [Disclosure: Horvitz & Levy represents the real party in interest in this case.]

People v. Smith: Should the trial court have instructed the jury, as requested, on misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) as a lesser included offense of resisting an executive officer in the lawful performance of his duty (Pen. Code, § 69)?

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

Western States Petroleum Assn. v. State Board of Equalization: (1) Was the economic impact statement prepared by the State Board of Equalization prior to adopting Property Tax Rule 474 (Cal. Code Regs., tit. 18, §
474) adequate under the standards prescribed by Government Code section 11346.5? (2) Is Property Tax Rule 474 inconsistent with Revenue and Taxation Code section 51, subdivision (d), and thus invalid pursuant to Government Code section 11342.2?

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

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