March 9, 2017

Supreme Court upholds presumptive right to complete free transcript, but holds violation of the right can be harmless

In People v. Reese, which was argued on the January calendar, the Supreme Court today holds that the constitutional right that an indigent criminal defendant — facing a retrial after a mistrial — presumptively has to a free transcript of trial court proceedings includes a transcript not only of testimony, but also of opening statements and closing arguments.  A divided Court of Appeal, finding persuasive the dissent in a divided 2004 Ninth Circuit opinion in a habeas corpus proceeding, found the defendant had to make a showing of why he needed a transcript of more than testimony.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar disagrees, concluding instead it is the prosecution that has the burden of rebutting the presumption that a full transcript is necessary for the defense on retrial.  The court says that “[i]t is simply inconsistent with the purpose of [equal protection guarantees] to distinguish between transcripts of witness testimony and transcripts of counsel’s statements — both of which a wealthy defendant is certain to purchase — when determining whether [the] presumption applies.”

Although the total denial of a transcript requires an automatic reversal, the court today holds that, “when the denial of the right to a previous trial transcript is less than total, appellate courts will often have little difficulty conducting harmless error review.”  And the court finds the denial to be harmless in the case before it today, therefore affirming the judgment of the Second District, Division Eight, Court of Appeal.

March 7, 2017

No conference held the week of March 6, 2017

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

March 6, 2017

Minor’s suit against school district tossed for noncompliance with Claims Act

In J.M. v. Huntington Beach Union High School District, the Supreme Court today holds that a lawsuit for a student’s injuries in a football game and at a later practice is barred for failing to comply with the Government Claims Act.  The court’s opinion by Justice Carol Corrigan concludes that the student was required to timely obtain relief in court after his application to his school district to file a late claim was not acted on and was thus denied by operation of law, even though it was an application the district was obligated to grant.  The court says that the student had “a clear avenue to challenge the denial of his application,” but that “[h]is counsel simply failed to take advantage of it.”

The opinion is signed by all the justices, but Justice Goodwin Liu writes a concurrence, which is joined by Justices Mariano-Florentino Cuéllar and Leondra Kruger.  The separate opinion points out “an apparent anomaly that the Legislature may wish to address.”  A footnote in the court’s opinion recognizes the same anomaly, although it doesn’t label it as such, and notes that “[t]he Legislature remains free” to consider a statutory amendment.  A Liu separate opinion has influenced legislation before.

The court affirms the Fourth District, Division Three, Court of Appeal.  It disapproves a 2011 opinion by the Second District, Division Three.

March 3, 2017

Nine arguments on the April calendar in Los Angeles [Updated]

The Supreme Court announced its April calendar.  There will be 9 arguments in 10 cases (two cases are consolidated).

On April 4 and 5, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Superior Court (Sahlolbei):  If an individual performing work for and on behalf of a public entity would qualify as an independent contractor for purposes of tort liability at common law, can that individual be subject to the criminal conflict-of-interest provisions of Government Code section 1090?

Jacks v. City of Santa Barbara:  Is the City of Santa Barbara’s 1 percent increase on its electricity bills (i.e., the 1 percent surcharge) a tax subject to Proposition 218’s voter approval requirement or a franchise fee that may be imposed by the City without voter consent?

People v. Chaney and People v. Valencia:  Does the definition of “unreasonable risk of danger to public safety” (Pen. Code, § 1170.18, subd. (c)) under Proposition 47 (“the Safe Neighborhoods and Schools Act”) apply retroactively to resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126)?

Ryan v. Rosenfeld:  Is the denial of a motion to vacate the judgment under Code of Civil Procedure section 663 separately appealable?

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

926 North Ardmore Avenue v. County of Los Angeles:  Does Revenue and Taxation Code section 11911 authorize a county to impose a documentary transfer tax based on a change in ownership or control of a legal entity that directly or indirectly holds title to real property?

In re Bell:  In this case, which is related to the automatic appeal in People v. Bell (2007) 40 Cal.4th 582, the court issued an order to show cause why petitioner is not entitled to relief on the ground of juror misconduct.

K.R. v. Superior Court:  Was the juvenile entitled to a disposition hearing before the same judge who accepted his admissions to a criminal offense and probation violations even though he did not make an affirmative showing of individualized facts in the record establishing that this was an implied term of the plea agreement?  (See People v. Arbuckle (1978) 22 Cal.3d 749.)

People v. Hopson:  Was defendant’s right of confrontation under the Sixth Amendment violated when the trial court permitted the prosecution to introduce out-of-court statements made by her deceased codefendant?

[March 15 update:  The court today continued the Parrish argument to the June calendar.  We’re not sure why the argument was continued, but the docket reflects that the court found without good cause plaintiff’s counsel’s apparently timely request to not schedule argument in April and that defendant’s counsel yesterday filed a request to continue oral argument.  We don’t know what was in either counsel’s letter.

In addition to the continuance, the court added a new case to take Parrish‘s place on the April calendar:

Scher v. Burke:  Does Civil Code section 1009 preclude non-recreational use of non-coastal private property from ripening into an implied dedication of a public road?]

March 3, 2017

Summary of March 1, 2017, conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 1, 2017.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Wilson v. Cable News Network, Inc., S239686 – Review Granted and Held – March 1, 2017

In a 2-1 published opinion, Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, the Court of Appeal, Second District, Division One, reversed a judgment after the granting of an anti-SLAPP motion against a former CNN producer, who alleged race and age discrimination, retaliation, wrongful termination, and defamation.  The court majority held that the defendant’s alleged conduct was outside the scope of the anti-SLAPP statute, stating, “This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.”  The dissenting justice, on the other hand, concluded, “a news organization’s employment decisions concerning a person, like Wilson, who has an undisputedly central role on the content of the news concerns an act in furtherance of the organization’s First Amendment rights and made in connection with issues of public interest.”

The Supreme Court ordered briefing deferred pending decision in Park v. Board of Trustees of California State University, S229728, which was argued last month and presents the following issue:  Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications?

Review Denied (with dissenting justices)

None.

Depublished

None.

March 3, 2017

Government Claims Act opinion filing Monday

As expected, the Supreme Court will file on Monday morning its opinion in J.M. v. Huntington Beach Union High School District, which was argued on the December calendar.

The case raises the issue whether a claimant under the Government Claims Act must file a petition for relief from Government Code section 945.4’s claim requirement, as set forth in Government Code section 946.6, if he has submitted a timely application for leave to present a late claim under Government Code section 911.6, subdivision (b)(2), and was a minor at all relevant times.

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

March 2, 2017

In holding public employees’ communications on private accounts are subject to disclosure, does Supreme Court offer commentary about presidential tweets?

Recognizing that, “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace,” the Supreme Court in City of San Jose v. Superior Court today holds that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”  Otherwise, the court says, “government officials could hide their most sensitive, and potentially damning, discussions in [personal] accounts.”  The court’s unanimous opinion by Justice Carol Corrigan potentially exposes to public view certain redevelopment-related emails and text messages on private electronic devices by San Jose’s mayor, two city council members, and their staffs.

The case raises an interesting question of statutory interpretation.  As the opinion states, the issue “concerns how laws, originally designed to cover paper documents, apply to evolving methods of electronic communication.”tweet

In describing that evolution, the court observes, “the ease and immediacy of electronic communication has encouraged a commonplace tendency to share fleeting thoughts and random bits of information, with varying degrees of import, often to broad audiences.”  Whether it was intended or not, that comment is descriptive of communications by executive officeholders other than the mayor of San Jose.

The court reverses the Sixth District Court of Appeal, rejecting the lower court’s reliance on a presumption that “public officials conduct official business in the public’s best interest.”

March 2, 2017

Supreme Court reduces prejudgment interest on wrongfully calculated disability retirement benefits

In Flethez v. San Bernardino County Employees Retirement Association, the Supreme Court today cuts back on the amount of prejudgment interest owed when the start date for a county employee’s disability retirement benefits is wrongfully determined.  The interest runs from the time the employee is wrongfully denied retroactive benefits, not from the date on which those benefits should have started.   The decision will apparently cost a former San Bernardino County equipment operator around 8 years worth of interest, over $130,000.

The court’s opinion, by Chief Justice Tani Cantil-Sakauye, is unanimous, but Justice Mariano-Florentino Cuéllar writes a brief concurring opinion, which Justices Kathryn Werdegar and Goodwin Liu join.  The concurrence states the court should have stated a rule for determining when a wrongful denial of retroactive benefits occurs.

The court affirms the Fourth District, Division One, Court of Appeal.  It also disapproves a 1989 decision of the Second District, Division Three.

March 1, 2017

“Convicted killer Daniel Covarrubias will not be retried to get death sentence”

The Monterey Herald reports on the aftermath of the Supreme Court’s September unanimous reversal of the death penalty, but not the conviction, in People v. Covarrubias.

March 1, 2017

Opinions filing tomorrow about public officials’ emails, prejudgment interest; two more opinions probably coming Monday [Updated]

Tomorrow morning, the Supreme Court will file its opinions in City of San Jose v. Superior Court, which was argued on the December calendar, and Flethez v. San Bernardino County Employees Retirement Association, which was heard in January.

City of San Jose is a high-profile case, having attracted briefs from numerous amici curiae, including news organizations, the ACLU, and public employee associations.  The case raises this issue:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?

In Flethez, the court will decide whether, if a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, prejudgment interest under Code of Civil Procedure section 3287 is calculated from the day after the employee’s last day of regular compensation or the day on which the employee submitted the claim for the benefits.

Once the City of San Jose opinion issues, there will be two one undecided cases from the December calendar for which this Monday will be the last regular opinion-filing day within the 90-day deadlinePeople v. Sivongxxay, a death penalty appeal, and J.M. v. Huntington Beach Union High School District, concerning procedural issues under the Government Claims Act.  The opinion in the one other undecided December case — McGill v. Citibank, N.A. — is not due until mid-May because, after the argument, the court vacated submission and ordered supplemental briefing; the 90-day clock did not re-start until two weeks ago when the last additional brief was filed.

The San Jose and Flethez opinions can be viewed starting at 10:00 a.m.

[March 2 update:  The Sivongxxay opinion will not file Monday.  Yesterday, as it had done in McGill, the court vacated submission and ordered supplemental briefing.  The briefs are to discuss “whether any state-law error as to a special circumstance jury waiver (see People v. Memro (1985) 38 Cal.3d 658, 700-704) may be found harmless based on an evaluation of the likelihood that, absent the error, defendant would have chosen not to waive a jury trial as to the special circumstance allegation.  (Cf. People v. Blackburn (2015) 61 Cal.4th 1113, 1130-1137; People v. Tran (2015) 61 Cal.4th 1160, 1168-1170; People v. Martinez (2013) 57 Cal.4th 555; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183; People v. Sanchez (1995) 12 Cal.4th 1, 30-31; People v. McClellan (1993) 6 Cal.4th 367; In re Alvernaz (1992) 2 Cal.4th 924; U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, 610-616; Fortune v. U.S. (D.C. 2013) 59 A.3d 949, 955-957; State v. Little (Minn. 2014) 851 N.W.2d 878, 883-886; State v. Williams (Or.Ct.App. 2005) 104 P.3d 1151, 1153; see 6 RT 903-905.)”  Briefing is to be completed within 3 weeks, at which time the case will be re-submitted and the 90-day clock will re-start, making an opinion due around the middle of June.]

February 27, 2017

Supreme Court clears way for lumber company challenge to salmon protections

In Central Coast Forest Association v. Fish and Game Commission, the Supreme Court today holds that a lumber company can proceed with its challenge to the Fish and Game Commission’s decision to not remove coho salmon south of San Francisco from the state’s endangered species list.  The court’s unanimous opinion by Justice Ming Chin is procedural only.  It reverses a 2-1 decision by the Third District Court of Appeal, which had held that a petition to “delist” a species could not be used to challenge an “original listing” decision.

Not only are the justices in agreement about the result, so are the parties.  As the court reports, “Notably, the Commission agrees with plaintiffs that the Court of Appeal erred, and that a delisting petition may, based on new evidence, challenge an earlier listing decision.”  The opinion remands the case for the Court of Appeal to address in the first instance the substantive issues about which the parties do not agree.

February 27, 2017

Death sentence affirmed for prison murders

The Supreme Court today affirms the death penalty judgment in People v. Delgado for the 1998 and 1999 murders by the defendant of two fellow inmates at Corcoran State Prison.  The court’s unanimous opinion by Justice Carol Corrigan, as is typical in many automatic direct death penalty appeals, rejects numerous arguments.  Regarding the issue that is given the most attention, the court finds no error in the trial court’s having ordered — with defense counsel’s consent — two correctional officers to be present during consultations between defendant and his attorney.

February 24, 2017

Endangered species, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in Central Coast Forest Association v. California Fish and Game Commission and People v. Delgado, which were both argued on the December calendar.

The Central Coast case has been around awhile; review was granted four years ago.  The court limited review to these issues — Under the California Endangered Species Act, Fish and Game Code section 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error?  If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration?

Delgado is an automatic appeal from a June 2000 judgment of death.

The Central Coast and Delgado opinions can be viewed Monday starting at 10:00 a.m.

 

 

 

February 23, 2017

Declaration of undisclosed expert inadmissible to oppose summary judgment

In Perry v. Bakewell Hawthorne, LLC, the Supreme Court today holds that a failure to timely comply with requirements for the exchange of expert witness information can hurt a party not only at trial but also in summary judgment proceedings.  The court’s unanimous opinion by Justice Carol Corrigan reasons that, because only “admissible evidence” can be considered on a summary judgment motion and because not responding to a demand for expert witness information makes an expert opinion inadmissible, “A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.”  A failure to comply is not necessarily irremediable, however.  The court advises that relief should be sought from a blown expert exchange deadline “as soon as the party discovers the need to submit a declaration by a previously undisclosed expert.”

The court affirms the Second District, Division Two, Court of Appeal.  In doing so, it overrules one its own 1985 decisions and it disapproves a 1990 Fifth District opinion.  The court notes that the earlier opinions, in addition to being erroneously reasoned, “reflect the more restrictive approach to summary judgment prevailing when they were decided” and that summary judgment “is now seen as ‘a particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.”

Horvitz & Levy filed an amicus curiae brief, and presented oral argument, in Perry on behalf of the Association of Southern California Defense Counsel.  The court’s opinion cites the brief.

 

February 22, 2017

Opinion about expert witness exchange filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Perry v. Bakewell Hawthorne, LLC, which was argued on the January calendar.  This will be the first opinion in a case argued in 2017.

Perry will decide whether Code of Civil Procedure section 2034.300, which requires a trial court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to comply with the rules for exchange of expert witness information, applies to a motion for summary judgment.  [Disclosure:  Horvitz & Levy filed an amicus curiae brief, and presented oral argument, on behalf of the Association of Southern California Defense Counsel.]

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

February 17, 2017

Summary of February 15, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 15, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Goonewardene v. ADP, LLC, S238941 – Review Granted – February 15, 2017

This case presents the following question:  Does an aggrieved employee in a lawsuit based on unpaid overtime have viable claims against the outside vendor that performed payroll services under a contract with the employer?

In a published opinion, Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, the Court of Appeal, Second District, Division Four, reversed the trial court’s dismissal of the plaintiff employee’s claims against an outside payroll services vendor related to alleged violations of labor laws and inadequate compensation.  The court reversed because the trial court denied the plaintiff leave to file an amended complaint asserting claims for breach of contract, negligent misrepresentation, and negligence against the vendor.

Review Denied (with dissenting justices)

None.

Depublished

None.

February 16, 2017

Supreme Court allows preserving evidence during pending death penalty appeal, expresses no opinion about the effect of Prop. 66

In People v. Superior Court (Morales), the Supreme Court today holds that a superior court has jurisdiction to order preserved evidence relating to a death penalty case in which there is an automatic direct appeal pending in the Supreme Court, even though the evidence is potentially relevant only to a future habeas corpus petition for which counsel has yet to be appointed.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes that courts “have the inherent power . . . [to] entertain[ ] motions for the preservation of evidence that will ultimately be subject to discovery . . . when the movant is appointed habeas corpus counsel.”

The court reverses the Fourth District, Division Two, Court of Appeal.  In finding no jurisdiction to order evidence preserved, the Court of Appeal had believed its hands were tied by a 1990 Supreme Court decision and one justice said at oral argument that it was up to the high court to “clean[ ] up their own mess.”  The Supreme Court today concludes, however, that “the Legislature has partially abrogated” the rule from the 1990 case and that the Court of Appeal “failed to give sufficient consideration” to current statutory provisions.

This case also serves as an example of how long the death penalty litigation process can take.  The defendant here was sentenced to death in 2005.  It was not until four years later that the Supreme Court appointed counsel — the State Public Defender — to represent defendant in his automatic appeal.  The court recently granted counsel’s 41st request for an extension of time to file the opening brief.  Almost a dozen years after the death sentence was imposed, no counsel has yet been appointed to represent the defendant in habeas corpus proceedings, which the court today says is due to the “regrettable reality” that there is “a shortage of qualified attorneys willing to accept appointment.”  The court’s recognition of the difficulty in finding habeas counsel is nothing new.

The court notes that Prop. 66 — passed by the voters in November but stayed while under review by the court — transfers responsibility for the appointment of capital habeas counsel from the Supreme Court to the superior court, but “expresses no view regarding the effect of that enactment.”

 

February 16, 2017

Supreme Court limits suits against winners of public works contracts

Finding that “[t]he costs of recognizing a tort remedy . . . are simply too high,” the Supreme Court today holds in Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., that the second lowest bidders on 23 public works contracts valued at over $14,000,000 cannot sue the winning bidder for wrongful conduct during the bidding process.  The winner was allegedly able to underbid by not paying prevailing wage and overtime compensation to its workers.

The court’s unanimous opinion by Justice Carol Corrigan concludes that, in the “highly regulated circumstances” of public works contracts, which are “a unique species of commercial dealings,” there could be no action for intentional interference with prospective economic advantage because the runner-ups “had ‘at most a hope for an economic relationship and a desire for future benefit.'”  Warning that “[c]ourts must act prudently when fashioning damages remedies ‘in an area of law governed by an extensive statutory scheme'” like public contracts, the opinion states that an unsuccessful bidder can instead challenge the award of a contract by seeking injunctive relief by petitioning for a writ of mandate.

The court reverses a 2-1 decision by the Second District, Division Eight, Court of Appeal.

February 15, 2017

Clean-up-their-own-mess, intentional interference opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Superior Court (Morales) and Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., which were both argued on the December calendar.

It was in the Morales case that a Court of Appeal justice said at oral argument that the “problem” in the case is one “of their [the Supreme Court’s] creation,” and that he “always believe[s] in someone cleaning up their own mess,” comments that were quoted in the successful petition for review.  The issue is whether the superior court had jurisdiction to order various entities to preserve materials that might at a later date be included in a motion for post-conviction discovery under Penal Code section 1054.9.

The Roy Allan Slurry Seal case raises these questions:  (1) In the context of competitive bidding on a public works contract, may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with California’s prevailing wage law after the contract was awarded?  (2) To state a cause of action for intentional interference with prospective economic advantage, must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendant’s interference, or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder?

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

February 10, 2017

No conference held the week of February 6, 2017

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

February 9, 2017

Supreme Court upholds no-gun, no-drugs probation conditions without express knowledge requirement, and it identifies a related issue for possible later review

In People v. Hall, the Supreme Court today holds that probation conditions prohibiting a defendant from possessing firearms or illegal drugs are valid even if they don’t specifically bar knowing possession of those things.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar rejects the argument that the conditions are unconstitutionally vague.  Because “revocation [of probation] requires knowledge,” the court reasons, it is unnecessary “to modify those conditions simply to make explicit what the law already makes implicit.”

The court also identifies an issue that could be ripe for review in another case.  Citing cases from other jurisdictions, the opinion expressly leaves undecided the question “whether sustaining a probation violation requires a showing of willfulness where the probation violation poses a direct threat to public safety or otherwise frustrates the assumptions underlying the grant of probation.”

The court affirms the First District, Division One, Court of Appeal.  It disapproves of 2016 and 2015 decisions by the First District, Division Four, a 2013 decision by the Sixth District, and a 2009 decision by the Third District.  (The 2016 case — In re Ana C. — is a grant-and-hold case and needed to be disapproved because, under a recent rule change, the grant of review did not automatically depublish the Court of Appeal’s opinion.)

February 8, 2017

Probation conditions opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Hall, which was argued on the December calendar.

Hall raises these issues:  (1) Are probation conditions prohibiting defendant from:  (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague?  (2) Is an explicit knowledge requirement constitutionally mandated?

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

February 6, 2017

Historical Society’s annual journal focuses on UCLA’s law school

The annual journal of the California Supreme Court Historical Society — not to be confused with thelegal-hist-v-11-web-summary_page_001 Society’s semi-annual newsletter — is available.  [Disclosure:  I’m on the Society’s board of directors.]  This volume is mostly about the UCLA School of Law, and includes personal reminiscences by numerous judicial alums.  The journal also features the first place essay — A Model for Juvenile Parole Reform:  California’s Youth Offender Parole Hearings Challenge the Modern Parole System and Apply the Fundamental Principles in Graham and Miller to the Release Decision-Making Process — in the Society’s law student writing competition.  The competition is named after the journal’s current editor-in-chief, the legendary Selma Moidel Smith.

February 3, 2017

Summary of February 1, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 1, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

None.

Order to Show Cause Issued

Briggs v. Brown, S238309 – Order to Show Cause Issued  – February 1, 2017

In this original proceeding, the Court ordered respondents Jerry Brown, Governor of the State of California; Xavier Becerra, Attorney General of California; and the Judicial Council of California to show cause why the relief sought by petitioners should not be granted.

This case presents issues regarding the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).

Review Denied (with dissenting justices)

None.

Depublished

None.

February 1, 2017

Prop. 66 on extended hold as Supreme Court agrees to hear challenge [Updated]

The Supreme Court today decided to hear on the merits a writ petition — Briggs v. Brown — challenging Prop. 66, the initiative passed in November to speed up California’s death penalty system.  In December, the court stayed implementation of the law while it considered the writ petition and preliminary oppositions.  That stay will now continue “pending the court’s decision in this matter.”

Because Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused, the Acting Chief Justice — Carol Corrigan — will appoint two pro tem justices to sit on the case.  Today’s order does not say — and we can only speculate — who those two will be.

The court has set an expedited briefing schedule.  Formal returns (oppositions to the writ petition) are due February 27, a reply to the returns must be filed by March 20, and the court’s order to show cause states, “The court does not anticipate granting any extensions of time regarding the due dates.”

[Update:  The court has made all documents in the writ proceeding available online.]

January 30, 2017

Summary of January 25, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 25, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

United Auburn Indian Community of the Auburn Rancheria v. Brown, S238544 – Review Granted  – January 25, 2017

In a partially published opinion, United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, the Third District Court of Appeal held that (1) the Governor’s concurrence that land is suitable for Indian gaming is not a legislative act and thus does not violate the separation of powers doctrine, and (2) the Governor did not exceed his authority in conducting negotiations before a parcel became “Indian land.”

This case presents the following issue:  May the Governor concur in a decision by the Secretary of the Interior to take off-reservation land in trust for purposes of tribal gaming without legislative authorization or ratification, or does such an action violate the separation of powers provisions of the state Constitution?

Additional Issues Added

Shaw v. Superior Court, S221530 – Additional Issues Added – January 25, 2017

In a published opinion, Shaw v. Superior Court (2014) 229 Cal.App.4th 12, the Court of Appeal, Second District, Division Three, held that (1) a petition for writ of mandate was the correct method of review for the wrongful termination claim; (2) a statute granted the right to a jury trial; and (3) the employee had a constitutional right to a jury trial.  The Supreme Court granted review on November 12, 2014.  The parties submitted briefs addressing the following issues: (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal? (2) Is there a right to jury trial on a retaliation cause of action under Health and Safety Code section 1278.5?

In addition to the points raised in the briefs filed, the Court last week requested that the parties be prepared at oral argument to address, in connection with the constitutional jury trial issue, the relationship between an action for wrong termination under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, and an action for retaliatory termination under Health and Safety Code section 1278.5, subdivision (g), including the relevance of the provisions of Health and Safety Code section 1278.5, subdivision (m).

Review Denied (with dissenting justices)

None.

Depublished

None.

January 26, 2017

Supreme Court grants review on its own motion in juvenile LWOP case

The Supreme Court yesterday granted review on its own motion in People v. Padilla.  The court does that occasionally.

The last time the court granted review on its own motion, the Attorney General lost in the Court of Appeal, decided not to seek review, but was dragged into the Supreme Court anyway, only to lose againPadilla could be a replay of that scenario.  In Padilla, the Court of Appeal reversed a sentence of life without the possibility of parole for a murder committed by a 16-year-old.  The Attorney General did not petition for review, but will now need to defend the case again in the Supreme Court.

The Supreme Court has limited the issue to be briefed and argued to this:  Did Montgomery v. Louisiana (2016) 577 U.S.___, 136 S.Ct. 718, 193 L.Ed.2d 599, clarify that Miller v. Alabama (2012) 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller) bans a sentence of life without the possibility of parole on a specific class of juvenile offenders whose crimes reflect the transient immaturity of youth, thereby requiring that trial courts determine that the crime reflects “irreparable corruption resulting in permanent incorrigibility” before imposing life without parole, or does a trial court comply with the constitutional mandates of Miller by giving due consideration to the offender’s youth and attendant circumstances in exercising its sentencing discretion under Penal Code section 190.5, subdivision (b)?

Lengthy sentences for crimes committed by minors is of continuing interest to the court.

January 26, 2017

Supreme Court unanimously affirms death sentence, with concurring opinion on Batson/Wheeler issues

The Supreme Court today affirms the death sentence in People v. Winbush.  As is typical in automatic direct death penalty appeals, the court’s unanimous opinion — by Justice Carol Corrigan — requires almost 100 pages to reject a host of arguments.

One of the defendant’s arguments is that the prosecution had a racially discriminatory motive in peremptorily challenging three African-American prospective jurors.  The court upholds what it calls the superior court’s “unusually detailed, careful ruling” that had found no racial discrimination.  Justice Goodwin Liu signs the court’s opinion, but writes a concurring opinion to discuss “two aspects of our Batson/Wheeler jurisprudence that merit reexamination in an appropriate case.”  Justice Liu has similarly written separately in other cases.

The court will be revisiting Batson/Wheeler issues in the future, including in People v. Enriquez, which will be argued on the March calendar.

January 25, 2017

Eight cases on the March calendar

The Supreme Court today announced its March calendar.  There are eight cases to be argued in San Francisco, evenly split between criminal and civil.

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

People v. Gonzalez:  Can nonverbal, threatening gestures constitute a “statement, made verbally, in writing, or by means of an electronic communication device” as required for making a criminal threat in violation of Penal Code section 422?

Wheatherford v. City of San Rafael:  Must a plaintiff have paid or be liable to pay a property tax to a government entity in order to bring a taxpayer waste action against that entity under Code of Civil Procedure section 526a, or can the payment of other taxes confer standing?

People v. Enriquez:  This is an un-hold case.  When the court un-held the case, it directed the parties to brief the issue whether the Court of Appeal erred in upholding the trial court’s denial of defendants’ Batson/Wheeler motions.  Batson issues are frequently before the court, sometimes dividing the justices.

People v. Martinez:  Can a defendant, who is convicted of hit-and-run and sentenced to prison rather than placed on probation, be required to pay restitution for the injuries the victim suffered in the collision?

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

Williams & Fickett v. County of Fresno:  (1) Must a taxpayer against whom an escape assessment on personal property has been made exhaust administrative remedies by filing an application with the county’s board of equalization to reduce the assessment if the taxpayer claims that it does not own and has no interest in the assessed property, or does the taxpayer fall within the “nullity” exception to the exhaustion requirement?  (2) Is a taxpayer who files an application for changed assessment with the county’s board of equalization subject to a one-year limitations period for paying the assessment and filing an action challenging the assessment, or does the period within which the taxpayer may file such an action begin to run only after the taxpayer has paid the disputed taxes?

Leider v. Lewis:  (1) Does Civil Code section 3369 bar taxpayer actions brought under the authority of Code of Civil Procedure section 526a seeking to enjoin violations of Penal Code provisions concerning animal abuse?  (2) Does the law of the case doctrine foreclose petitioners’ reliance upon that legal argument in this appeal?

Dhillon v. John Muir Health:  Is a trial court order granting in part and denying in part a physician’s petition for writ of administrative mandate regarding a hospital’s disciplinary action and remanding the matter to the hospital for further administrative proceedings an appealable order?
[Disclosure:  Horvitz & Levy is appellate counsel for John Muir Health.]

January 25, 2017

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Winbush, which is the last undecided case from the November calendar.  Winbush is an automatic direct appeal from a July 2003 judgment of death.

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

January 23, 2017

Supreme Court rejects challenge to Insurance Commissioner’s regulation for homeowners coverage

In Association of California Insurance Companies v. Jones, the Supreme Court today holds that the Unfair Insurance Practices Act authorized the Insurance Commissioner to enact a regulation regarding replacement cost coverage in homeowners insurance.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar rejects one challenge to the 2011 regulation, a part of which, in a footnote, takes up almost three pages of the court’s opinion.  The court, however, remands the case to allow lower courts to evaluate other arguments against the regulation, including that it violates insurers’ rights to free speech.

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

January 23, 2017

Summary of January 18, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 18, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Ogunsalu v. Superior Court (California Attorney General’s Office), S238507 – Review Granted and Transferred – January 18, 2017

The Court of Appeal, Fourth District, Division One, denied a pro per vexatious litigant’s request to file new litigation.  The Supreme Court unanimously granted review and transferred the case back to the Court of Appeal for reconsideration in light of John v. Superior Court (2016) 63 Cal.4th 91.

Review Denied (with dissenting justices)

None.

Depublished

None.

January 20, 2017

Insurance regulation opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Association of California Insurance Companies v. Jones, which was argued on the November calendar.

The case raises these issues:  (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).)

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

January 19, 2017

SCOTUS will review Supreme Court’s personal jurisdiction opinion

The U.S. Supreme Court today granted certiorari in Bristol-Myers Squibb Company v. Superior Court.  The high court will be reviewing a 4-3 California Supreme Court personal jurisdiction decision that held hundreds of non-California plaintiffs could 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.

January 19, 2017

Trial court has jurisdiction to consider late-filed new trial motion papers

In Kabran v. Sharp Memorial Hospital, the Supreme Court today holds that a trial court does not lose jurisdiction to consider affidavits that were filed after a statutory deadline for submitting papers in support of a new trial motion, where the non-moving party did not object in the trial court to the affidavits’ timeliness.  Finding that “jurisdictional rules are mandatory, but mandatory rules are not necessarily jurisdictional,” the court’s unanimous opinion by Justice Goodwin Liu concludes that the new trial motion statute “does not deprive a court of fundamental jurisdiction to consider affidavits submitted after the 30-day deadline set forth in the statute.”

The court affirms the Fourth District, Division One, Court of Appeal, and it disapproves a 1996 Third District opinion.

January 19, 2017

Divided Supreme Court overrules 1941 opinion in rape case

In People v. White, a 5-2 Supreme Court today holds that the same act can lead to a conviction of — but not punishment for — both rape of an intoxicated person and rape of an unconscious person.  The court’s opinion by Justice Ming Chin relies on a 2014 decision — People v. Gonzalez (2014) 60 Cal.4th 533 — where the court concluded that a defendant could be convicted under a different statute for both oral copulation of an intoxicated person and oral copulation of an unconscious person based on one act.

The Gonzalez court distinguished a 75-year-old decision — People v. Craig (1941) 17 Cal.2d 453, which held that “one punishable offense of rape results from a single act of intercourse” — because Gonzalez concerned oral copulation and Craig dealt with rape.  Today, in White, the court acknowledges that it cannot avoid deciding whether Craig is still good law, and it overrules that opinion, but it does so gently, stating that, although it has “no reason to question whether Craig was correct when decided, subsequent events have made it no longer authoritative regarding today’s” rape statute.

Justice Goodwin Liu, who concurred in Gonzalez, finds the majority’s treatment of Craig not gentle enough.  Joined by Justice Leondra Kruger, Justice Liu dissents, finding that “the court ascribes to Craig a rationale that Craig did not adopt.”  Believing that the rape statute “is relevantly different” from the oral copulation statute, the dissent concludes, “A straightforward reading of [the rape statute] and application of Gonzalez lead to the conclusion that the rape statute defines a single offense.”

The court reverses a 2-1 decision of the Fourth District, Division One, Court of Appeal.  This was the second time the case was in the Supreme Court.  After the Court of Appeal’s first opinion, the case was a grant-and-hold for Gonzalez and the case was remanded for reconsideration in light of Gonzalez.

January 18, 2017

Opinions filing tomorrow concerning new trial motion procedure, multiple rape punishments

Tomorrow morning, the Supreme Court will file its opinions in Kabran v. Sharp Memorial Hospital and People v. White, which were both argued on the November calendar.

In Kabran, the court will decide whether the time constraints in Code of Civil Procedure section 659a, which governs the filing of papers supporting a new trial motion, are jurisdictional such that a court cannot consider late-filed documents.

White raises the issue whether the defendant in the case was properly convicted of both rape of an intoxicated person and rape of an unconscious person for a single act of sexual intercourse.

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

January 16, 2017

Who the “H” is likely to decide the Prop. 66 case?

The Supreme Court is currently considering whether it will hear on the merits a writ petition challenging Prop. 66, the initiative passed in November to speed up California’s death penalty system.  But it’s not the entire court that’s considering the petition — Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused.

So, who will take the Chief Justice’s and Justice Chin’s places?  At this preliminary stage, when the court is just deciding whether it will decide the writ petition’s merits, probably nobody.  According to the court’s Internal Operating Practices and Procedures, a pro tem justice will be appointed only if “four justices cannot agree on a disposition,” and at least four of the five non-recused justices will probably agree whether or not to hear the case.

If the court does agree to hear the case — and it’s likely that the court will — one of the remaining associate justices will be chosen on a rotational basis to be the Acting Chief Justice (we understand that will be Justice Carol Corrigan) and the Acting Chief will assign two pro tem justices to sit on the case.  If the court’s Practices and Procedures are followed, the assignments will go to two Court of Appeal justices.  But those Practices and Procedures can be “temporarily suspended by affirmative vote of four justices” when there is “good cause for special action,” and it’s not impossible that, for a case of this importance, the court will call on retired Supreme Court justices to serve.  (Cal. Const., art. VI, section 6(e) [“A retired judge who consents may be assigned to any court”].)

If the court takes the normal route and two Court of Appeal justices are assigned, who might they be?  Under the Practices and Procedures, Court of Appeal justices — who have served on the Court of Appeal for at least one year — are assigned in alphabetical order, and, “If a Court of Appeal justice is unable to serve on a particular case, the next justice on the alphabetical list will be assigned, and the Court of Appeal justice who was unable to serve will be assigned in the next case in which a pro tempore appointment is required.”

Who’s next on the alphabetical list?  We believe that we’re into the H’s and that Fourth District, Division One, Justice Judith Haller was the last Court of Appeal jurist to serve pro tem, in McGill v. Citibank, N.A., which was argued on the December calendar.  If so, the next in line in the H’s are Presiding Justice Brad Hill (Fifth District), Justice Andrea Hoch (Third District), Justice Brian Hoffstadt (Second District, Division Two), Justice Thomas Hollenhorst (Fourth District, Division Two), Justice Richard Huffman (Fourth District, Division One), Justice Harry Hull, Jr. (Third District), and Presiding Justice Jim Humes (First District, Division One).

The “unable to serve” qualification to the rule of alphabetical assignment makes it difficult to predict with any certainty the pro tem justices for the Prop. 66 case.  We’re guessing that Presiding Justice Hill and Justice Huffman will not be assigned because they’ve both served as pro tems fairly recently (here and here).  That leaves Justices Hoch and Hoffstadt at the top of the alphabetical list, but they could be preempted by justices who were “unable to serve” on earlier cases.

Whoever gets the call, however, will be stepping into the spotlight of an emotionally charged, high-profile case and might be wishing that they hadn’t won the assignment lottery.

January 13, 2017

Summary of January 11, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 11, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission), S238563 – Review Granted – January 11, 2017

In a published opinion, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, the Court of Appeal, Fourth District, Division One, held that a zoning ordinance regulating the number and location of medical marijuana dispensaries was not a “project” subject to the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), and therefore the city was not required to conduct an environmental analysis prior to enacting the ordinance.

This case presents the following questions: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of CEQA?  (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

Review Denied (with dissenting justices)

None.

Depublished

None.

January 13, 2017

Ninth Circuit sends choice-of-law question in insurance case to Supreme Court [Updated]

Claiming the issues are “of significant importance to the state,” the Ninth Circuit today asked the California Supreme Court to answer choice-of-law questions that arise in a case concerning insurance coverage for remediation of pollution damage at Pitzer College.

In Pitzer College v. Indian Harbor Insurance Company, the federal court has requested the Supreme Court to resolve these issues:  “1.  Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis?  May common law rules other than unconscionability not enshrined in statute, regulation, or the constitution, be fundamental public policies for the purpose of choice-of-law analysis?  2.  If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can a consent provision in a first-party claim insurance policy be interpreted as a notice provision such that the notice-prejudice rule applies?”

[January 17 update:  The Supreme Court today docketed the Ninth Circuit’s request.]

January 8, 2017

“High court to consider pace of executions”

Maura Dolan reports in today’s Los Angeles Times on the Supreme Court writ petition challenging Proposition 66, the initiative passed in November to speed up California’s death penalty process.  The Supreme Court has stayed the new law’s implementation while the court allows preliminary briefing on whether it should decide the writ petition on the merits, which would involve further briefing and an oral argument.  Preliminary oppositions to the petition are due tomorrow.

The Times article notes varying views of the effect on the Supreme Court’s docket of a fully implemented Proposition 66.  One law professor says the court would be spending virtually all its time on death penalty cases.  Another, however, says that judges “sit on them because they don’t like the death penalty,” not “because they are overwhelmed with work.”

Chief Justice Tani Cantil-Sakauye said last year — and the year before — that 25 percent of the court’s resources are spent on automatic death penalty appeals and related habeas corpus petitions.  And that’s without the unprecedented and extreme speed up that Proposition 66 would require.  To claim that the justices are “sitting on” death penalty cases out of animosity to capital punishment is a fact-free slur.  Regardless of that, however, the increase in death penalty appeals and habeas petitions the court would have to decide to comply with Proposition 66’s time limits would, as the first law professor predicts, probably leave the court with the ability to handle little else.

January 6, 2017

In podcast, Chief Justice gives Supreme Court advocacy tips and identifies hot areas of the law

In a Daily Journal podcast released today, Chief Justice Tani Cantil-Sakauye discusses what works and what doesn’t in written and oral advocacy at the Supreme Court.  She also talks about her personal history, including growing up near the Capitol in Sacramento, and about the Supreme Court and the California judiciary in general.

During the comprehensive interview, the Chief Justice said, among many other things, that petitions for review should explain why a case is the best vehicle to resolve the question presented, and that in briefs and at oral argument, counsel should have a rule in mind — not just a result for the particular case — and be prepared to defend the proposed rule.

The Chief Justice was asked what areas of the law the court will likely be dealing with in the future.  Her list included arbitration, CEQA, PAGA, water issues, and the Consumer Legal Remedies Act.  She also said, “I’m hoping that we have spoken enough about anti-SLAPP that you won’t see too many of those, but those continue to come to the California Supreme Court.”

The Chief Justice also discussed the circumstances that might lead to the “rare” grant of review on the court’s own motion and explained that the court strives to be unanimous because the justices “recognize our role as providing guidance not only to the courts, but to businesses and other entities that can rely on the stability and consistency and predictability of the law.”

January 5, 2017

Six cases — mostly civil — on the February calendar in Sacramento [Updated]

As it was finishing up its January calendar today, the Supreme Court announced next month’s lineup of arguments.  There are six cases, and four of them are civil (five, if you count the habeas corpus case), which is a higher percentage than usual.

On February 7, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):

DisputeSuite.com, LLC v. Scoreinc.com:  Were defendants entitled to an award of attorney fees under Civil Code section 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause?

Park v. Board of Trustees of the California State University:  Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e) ) but does not seek relief against any participant in that proceeding based on his or her protected communications?

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

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

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

[January 26 update:  the Supreme Court yesterday directed that counsel in Shaw should “be prepared at oral argument to address, in connection with the constitutional jury trial issue, the relationship between an employee’s action for wrong termination under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 157 and such an employee’s action for retaliatory termination under Health and Safety Code section 1278.5, subdivision (g), including the relevance of the provisions of Health and Safety Code section 1278.5, subdivision (m).”]

People v. Becerrada:  This is an automatic appeal from a February 2009 judgment of death.  The court’s website does not list issues for such appeals.

January 5, 2017

State Bar’s late petition for review pays off, as Supreme Court allows it to collect anti-SLAPP attorney fees

In Barry v. State Bar of California, the Supreme Court holds that a prevailing defendant on an anti-SLAPP motion is entitled to attorney fees under the anti-SLAPP statute even though the motion succeeded because the superior court lacked subject matter jurisdiction over the plaintiff’s claim.  The unanimous opinion by Justice Leondra Kruger concludes attorney fees are available whether the claim fails because “it lacks substantive merit” or, as in this case, because “it is filed in a tribunal that lacks the power to hear it.”  The Barry plaintiff is a pro per attorney who sued the State Bar in superior court concerning disciplinary action taken against her, but only the Supreme Court has jurisdiction over attorney discipline matters.  (See The multi-tasking Supreme Court.)

This was almost a victory that wasn’t for the State Bar.  The Court of Appeal had held that the State Bar could not recover its attorney fees.  The State Bar petitioned the Supreme Court for review, but the petition was submitted more than two weeks late.  Accompanying the petition was an application for relief from default.  We don’t know what was in the application, but it was good enough to have the Supreme Court grant permission to file the untimely petition.

The Supreme Court reverses the Second District, Division Two, Court of Appeal.

January 4, 2017

Anti-SLAPP opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Barry v. State Bar of California, which was argued on the November calendar.

This is a case in which the court granted relief to file a late petition for review.  It raises the issue:  If the trial court grants a special motion to strike under Code of Civil Procedure section 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by section 425.16, subdivision (c)?

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

December 29, 2016

4-3 Supreme Court allows disclosure of attorney billing records in concluded litigation

In County of Los Angeles Board of Supervisors v. Superior Court, a divided Supreme Court today holds that the attorney-client privilege does not necessarily prevent disclosure under the California Public Records Act of attorney invoices in completed litigation sent by a private law firm to a public entity.  The court’s opinion — by Justice Mariano-Florentino Cuéllar — also concludes, however, that “invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege” and thus are protected from PRA disclosure.  The case stems from an ACLU PRA request for invoices showing how much Los Angeles County had been billed by law firms in connection with lawsuits alleging excessive force against jail inmates.

The majority states, “In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose” and reasons that, “even though the amount of money paid for legal services is generally not privileged, an invoice that shows a sudden uptick in spending ‘might very well reveal much of [a government agency]’s investigative efforts and trial strategy.'”

Justice Kathryn Werdegar — joined by Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan — dissents.  Referring to the attorney-client privilege, Justice Werdegar states the majority “undermines this pillar of our jurisprudence” and says that the court “is simply not free to add elements and prerequisites to a statutory rule of evidentiary privilege.”

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

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

December 29, 2016

Supreme Court rejects punishment for both carjacking and robbery after superior court and Court of Appeal don’t take hints

In People v. Corpening, the Supreme Court today holds that a defendant cannot be punished for both carjacking and robbery when “the same action completed the actus reus for each” crime.  The case involves the carjacking of a van with about $70,000 worth of coins inside.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes that “[a] defendant may not be punished more than once for a single physical act that violates multiple provisions of the Penal Code.”

The court reverses the Fourth District, Division One, Court of Appeal, which had affirmed a superior court sentence for both crimes.  The two lower courts missed opportunities to avoid today’s result.  First, the prosecution recommended that a sentence for the robbery be stayed on grounds that the defendant couldn’t be punished for robbery and carjacking, but the superior court rejected the recommendation.  Then, after the Court of Appeal affirmed based on a 1960 Supreme Court decision and the Supreme Court granted review and transferred the case back for reconsideration in light of a 2012 Supreme Court opinion, the Court of Appeal again affirmed the dual sentence.  Finally, as the Supreme Court says today, “We granted review once more.”

The superior court and the Court of Appeal can’t say they weren’t warned.

 

December 28, 2016

Attorney-client privilege, carjacking/robbery opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its last opinions of the year, in County of Los Angeles Board of Supervisors v. Superior Court, which is the last undecided case from the October calendar,  and People v. Corpening, which will be the first opinion in cases argued on the November calendar.

The County of Los Angeles case raises the issue whether invoices for legal services sent to the County of Los Angeles by outside counsel are 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.]

In Corpening, the court will decide, “Did Penal Code section 654 bar the imposition of sentence for both robbery and carjacking when the two crimes were accomplished by a single act?”

When the court last considered a carjacking/robbery case, in People v. Johnson almost two years ago, the court divided 5-2 and new Justice Mariano-Florentino Cuéllar later joined the two dissenters in voting for rehearing.  We don’t know if the issue that split the court in Johnson is implicated in Corpening.

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

December 23, 2016

Summary of December 21, 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, December 21, 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. Note that, due to the holiday break and its early January oral argument calendar, the Court will next hold a conference on Wednesday, January 11, 2017.

Review Granted

T-Mobile West v. City and County of San Francisco, S238001 – Review Granted

In a published opinion, T-Mobile West LLC v. City and County of San Francisco (2016) 3 Cal.App.5th 334, the Court of Appeal, First District, Division Five, held that portions of a city ordinance requiring site-specific permits before constructing wireless facilities are not preempted by state law.  Specifically, the court reviewed the questions of statutory interpretation and preemption to hold that portions of the ordinance that conditioned the approval of a particular site permit on aesthetic concerns are not preempted.

This case presents the following issues: (1) Is a local ordinance regulating wireless telephone equipment on aesthetic grounds preempted by Public Utilities Code section 7901, which grants telephone companies a franchise to place their equipment in the public right of way provided they do not “incommode the public use of the road or highway or interrupt the navigation of the waters”? (2) Is such an ordinance, which applies only to wireless equipment and not to the equipment of other utilities, prohibited by Public Utilities Code section 7901.1, which permits municipalities to “exercise reasonable control as to the time, place and manner in which roads, highways, and waterways are accessed” but requires that such control “be applied to all entities in an equivalent manner”?

Review Denied (with dissenting justices)

None.

Depublished

None.

December 22, 2016

Payday lenders cannot necessarily avoid California consumer protection law by affiliating with an Indian tribe

In People v. Miami Nation Enterprises, the Supreme Court today holds that the California Deferred Deposit Transaction Law might apply to payday lenders who affiliated with federally recognized Indian tribes, even though the tribes would generally be protected by tribal sovereign immunity.  The court’s unanimous opinion by Justice Goodwin Liu concludes that “an entity asserting immunity bears the burden of showing by a preponderance of the evidence that it is an ‘arm of the tribe’ entitled to tribal immunity” and specifies a test requiring consideration of these factors:  “(1) the entity’s method of creation, (2) whether the tribe intended the entity to share in its immunity, (3) the entity’s purpose, (4) the tribe’s control over the entity, and (5) the financial relationship between the tribe and the entity.”

The court reverses the Second District, Division Seven, Court of Appeal.  It disagrees with decisions from the high courts of Colorado, Alaska, and New York.