September 5, 2017

“Werdegar gone, 6 high court justices sit today”

As the Supreme Court today begins hearing its September calendar with eight Court of Appeal justices sitting to temporarily fill the vacancy created by Justice Kathryn Werdegar’s retirement (live video here), the Daily Journal [subscription] reports about the process to find a permanent replacement.  The article says that “two names have emerged” in the speculation about whom Governor Jerry Brown will appoint — Presiding Justice Jim Humes (of the First District, Division One, Court of Appeal) — who is one of the pro tem justices today — and Justice Lamar Baker (Second District, Division Five).  The Daily Journal also mentions Justice Jeffrey Johnson (Second District, Division One) — who is also sitting on the court pro tem today — as a possible pick.

The question about an appointment, however, is not only who but when.  The article quotes a deputy press secretary in the Governor’s office as saying “there is no set timetable.”  However, the more pro tem justices the Supreme Court must use — and the court will soon be announcing its October calendar, likely with more pro tems — the greater the odds that an institutional problem will arise.  It can be damaging if the court decides a case by a 4-3 vote with a pro tem in the majority.  When that happens, there will be the suspicion that the case’s outcome was determined by which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.

Although her retirement was not effective until last week, Justice Werdegar announced it six months ago and the Governor likely could have had a new justice appointed and confirmed in time to be sitting on the court today, allowing the court to operate without the need for any pro tem justices.

September 4, 2017

Happy Labor Day, Chief

Today, it’s worth remembering that California’s Chief Justice has two more-than-full-time jobs.

September 4, 2017

“A win for majority rule on local finances”

There’s been a lot of press about the Supreme Court’s 5-2 decision last week in California Cannabis Coalition v. City of Upland, holding that Proposition 218, a voter initiative that amended the state constitution to restrict the taxing power of “local governments,” does not limit the ability of voters themselves to impose taxes by initiative.  The media attention includes an editorial in yesterday’s Los Angeles Times, praising the ruling as having “struck a welcome blow to the unreasonably high vote thresholds in Proposition 218.”

The editorial refers to the Proposition 218 requirement that two-thirds of voters must approve the imposition, extension, or increase of many local taxes.  (See, e.g., here.)  (The Times calls it “the tyranny of the minority.”)  However, that’s not what the Supreme Court’s opinion was specifically about (California Cannabis concerned a different Proposition 218 provision, one regarding the timing of elections on taxes), and although many believe that the opinion does what the editorial assumes, others are not as sure.  The San Diego Union-Tribune, for example, editorialized that, because of the court’s ruling, “voter-qualified ballot initiatives only need majority approval — maybe.”  Nonetheless, as CALmatters reports, some state legislators are already set to introduce a constitutional amendment that would overturn the decision.

The Union-Tribune rails against the uncertainty about the status of the two-thirds vote requirement for local taxes by initiative:  “California Chief Justice Tani Cantil-Sakauye needs to grasp that this is intolerable — and that while it may be unusual, the state’s high court needs to revisit the Upland case and specifically address the voting threshold question.”  Supreme Court rehearings are extremely rare, even with a court in transition.  It would be even more rare for the court to grant rehearing to resolve an issue — the reach of the two-thirds vote requirement — that wasn’t before the court in the first place.  (And, of course, contrary to the Union-Tribune’s entreaty, it takes more than the Chief Justice’s vote to rehear the case.)  Resolution of the issue will most likely have to wait for another case, or for the Legislature and the voters, or just the voters, to amend the constitution to reverse California Cannabis.

September 1, 2017

Summary of August 30, 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 August 30, 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

City of Oroville v. Superior Court (California Joint Powers Risk Management Authority), S243247 – Review and Stay Granted – August 30, 2017

In an unpublished opinion, City of Orville v. Superior Court (June 13, 2017, C077181) 2017 WL 2554447, the Third District Court of Appeal affirmed the trial court’s holding that a municipality was liable for inverse condemnation. The court denied the city’s petition for writ of mandate and vacated the stay of the trial court proceedings on damages.

This case presents the following issue: Is a city liable for inverse condemnation when a blockage in a city sewer main and the absence of a legally required backwater valve on private property caused sewage to back up onto that property?

Review Denied (with dissenting justices)

None.

Depublished

Bartoni v. American Medical Response West, S243277– Depublished Court of Appeal Opinion – August 30, 2017

Plaintiffs, current and former employees of an ambulance service company, sued their employer alleging that its meal and rest period policies violate California law. The case raised two issues: (1) Is an order denying class certification appealable under the “death knell” doctrine, where plaintiffs’ Private Attorney General Act (PAGA) claims remain pending?; and (2) Did the trial court err in denying class certification?  In a published opinion, Bartoni v. American Medical Response West (2017) 11 Cal.App.5th 1084, the Court of Appeal, First District, Division Two, held the trial court’s denial of class certification rested in part on an incorrect legal assumption about the nature of rest periods, and therefore remanded for further consideration.  The Supreme Court ordered the opinion depublished.

September 1, 2017

Mandatory Supreme Court e-filing starts today

As the Supreme Court announced in June, mandatory e-filing begins today for most documents filed before the court grants or denies a petition for review.  And today the court publishes six pages of e-filing rules.  There are some exceptions — e.g., e-filing is voluntary for self-represented litigants and for amicus letters supporting petitions for review — but rule 3(b) provides that e-filing applies to pending cases.

August 31, 2017

Five opinions in death penalty reversal; court barely reaches a judgment at all and provides a rehearing opportunity

No wonder it took until the last filing day within the 90-day period to decide the capital appeal in People v. Daniels.  There are five different opinions in the case today, leading to a reversal of only the death sentence, due to an invalid waiver of the defendant’s right to a jury trial.  Everything else is affirmed.  But the court came close to not having a majority agreeing to any disposition at all.  A brief per curiam opinion serves as a scorecard for the appeal, recounting where the seven justices stand in the four separate opinions that follow.

The defendant was convicted in a court trial, without a lawyer, of a laundry list of major crimes.  There were also two special circumstance findings, which were the basis for the death penalty.

Justice Mariano-Florentino Cuéllar writes what is designated as the lead opinion, which Justices Kathryn Werdegar and Goodwin Liu sign.  These three justices believe everything should be reversed — the convictions, the special circumstance findings, and the death penalty — because, they conclude, the defendant’s jury trial waivers were not “knowing and intelligent.”  “[T]he court accepted Daniels’s waiver without ever inquiring as to Daniels’s understanding of any substantive aspect of what a jury is,” the lead opinion says.  Thus, although Daniels clearly waived his right to a jury trial, the three justices say they “decline to conflate a knowing, intelligent waiver with an emphatic one.”  Also, however, the opinion rejects several additional defense arguments — stemming from his waiver of the right to counsel — and all the other justices agree on these points.

Justice Liu issues a concurring opinion, signed by Justice Cuéllar.  Noting in detail that “the state of our citizenry’s actual knowledge of basic civics leaves much to be desired,” this opinion stresses the need for explaining the details of a jury trial to a defendant who wants to waive one, especially in a capital case.

Justice Carol Corrigan, joined by Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, writes a dissent on the jury waiver issue, stating that the entire death penalty judgment should be affirmed.  These three justices agree the trial judge needs to adequately educate a defendant before the defendant waives a jury trial, but conclude that “[t]here is no requirement that a colloquy be complicated in order to be constitutional” and that “a review of the entire record casts no doubt on Daniels’s understanding.”

Justice Kruger, alone, has a separate opinion both concurring in and dissenting from the lead opinion’s discussion of jury waiver.  She concurs with Justice Cuéllar’s opinion on the invalidity of the jury trial waiver as to the penalty phase, but also concurs with Justice Corrigan’s opinion about the adequacy of the waiver as to the guilt phase.

The court was certainly splintered on this case, but it could have been worse.  Justice Kruger says that she would have preferred “to order further proceedings to allow the parties to make a more robust record concerning the intelligence of defendant David Scott Daniels’s jury waiver.”  If she had stuck to that position, however, there would have been no judgment of the court.  So, to avoid that dilemma, she agrees to the disposition that “resolves the case in the manner that most closely reflects my own views on what the record before us establishes about the intelligence of defendant’s jury trial waiver.”

All these opinions raise a question.  If Justices Werdegar, Liu, and Cuéllar believe the guilt and special circumstance findings (along with the death penalty) should be reversed, why didn’t they agree to Justice Kruger’s preferred disposition — a remand for further proceedings — that ultimately could have led to a full reversal, instead of unsuccessfully insisting on a full reversal now and allowing the guilt and special circumstance findings to be affirmed?  The answer might be that a remand could also ultimately have led to the entire death penalty judgment being affirmed.

To further complicate matters, today is Justice Werdegar’s last day on the court.  If her replacement is appointed and confirmed before the time expires to order a rehearing — likely, 90 days from today (see also here) — the new justice, not Justice Werdegar, would vote on any rehearing petition.  The new justice could conceivably lead to the death penalty judgment being affirmed in its entirety (if he or she agrees with Justice Corrigan’s opinion) or, alternatively, cause the remand that Justice Kruger wants (if he or she believes that’s the proper disposition and Justices Liu and Cuéllar have second thoughts about how to resolve the case).

A jury trial waiver issue divided the court just two months ago when the court affirmed the death penalty in another case, People v. Sivongxxay.  That division was nothing like today’s, however.

August 31, 2017

Automated license plate reader data mostly protected from disclosure

In American Civil Liberties Union Foundation of Southern California v. Superior Court, the Supreme Court today holds that raw data from law enforcement use of automated license plate readers does not need to be disclosed under the California Public Records Act, but it holds open the possibility that anonymized or redacted data might be required.  The readers — mounted on fixed structures and patrol cars — scan and analyze license plates of cars on the road to identify vehicles linked to crimes under investigation.  The court’s unanimous opinion by Justice Ming Chin concludes that revealing unaltered plate scan data — the Los Angeles Police and Sheriff’s Departments “read” over one million plates a week —  would “jeopardize the privacy of everyone associated with a scanned plate.”  However, the court remands the case for further analysis of whether anonymized or redacted data could be disclosed without compromising law enforcement investigation.

The court affirms in part and reverses in part the Second District, Division Three, Court of Appeal.  The Court of Appeal had exempted from disclosure both raw and anonymized or redacted data.

August 30, 2017

License plate reader, death penalty opinions filing tomorrow; last for Justice Werdegar and likely to be the last ones for a while

Tomorrow morning, the Supreme Court will file its opinions in American Civil Liberties Union Foundation of Southern California v. Superior Court and People v. Daniels, the last two undecided cases from the June calendar.  (Briefs here; oral argument videos here.)

In fact, they’re the last two argued cases still awaiting opinions, period.  And with no more arguments until next week, it could be a month or more before we see another opinion filed.  Last year, there was a seven-week gap in opinion filings.

The ACLU and Daniels opinions will also be the last in which Justice Kathryn Werdegar participates.  Tomorrow is her last day on the court.

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

Daniels is an automatic direct appeal from a February 2001 judgment of death.

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

August 28, 2017

Divided Supreme Court tightens time limit for childhood sexual abuse actions against public entities

In Rubenstein v. Doe No. 1, a 4-3 Supreme Court today finds untimely a 34-year-old woman’s claim that she was sexually molested by her high school cross-country and track coach almost 20 years earlier.  Interpreting statutes of limitations in the Code of Civil Procedure and the Tort Claims Act in the Government Code, the majority opinion by Justice Ming Chin notes that the plaintiff could have timely sued if the defendant hadn’t been a public entity or if the sexual abuse had occurred after 2008.  The opinion says that legislative changes, including the overruling of a 2007 Supreme Court decision, were “measured actions that protected public entities from potential liability for stale claims regarding conduct allegedly occurring before January 1, 2009, in which the public entity had no ability to do any fiscal planning, or opportunity to investigate the matter and take remedial action.”

Justice Kathryn Werdegar, joined by Justices Goodwin Liu and Mariano-Florentino Cuéllar, dissents.  She says that “the majority offers public entities the practical equivalent of immunity in the very set of cases that prompted the Legislature to amend [the general statute of limitations for childhood sexual abuse actions] — cases in which the psychological harm caused by childhood sexual abuse is first discovered in adulthood,” a result that “cannot fairly be attributed to the Legislature, which amended [the statute of limitations] over the strong objection of public school districts.”

The court reverses the Fourth District, Division One, Court of Appeal.  It agrees with a 2006 Second District, Division Two, opinion, which it quotes at length.  The court also disapproves a 2009 decision by the Second District, Division Three.

August 28, 2017

Supreme Court hits a Homer in loosening restrictions on taxing by initiative

Employing a Homeric reference, the Supreme Court today holds in California Cannabis Coalition v. City of Upland that a state constitutional provision, which was added by initiative to limit the taxing power of “local governments,” does not affect the ability of voters themselves to impose taxes by initiative.  In the

Ulysses and the Sirens

court’s 5-2 opinion, Justice Mariano-Florentino Cuéllar writes, “Only by approving a measure that is unambiguous in its purpose to restrict the electorate’s own initiative power can the voters limit such power, tying themselves to the proverbial mast as Ulysses did.”  (See here.)  (In another flourish, the opinion calls the early 20th Century advent of the initiative power “a political earthquake.”)

The tax in question was a $75,000 annual licensing and inspection fee included in a City of Upland initiative to allow medical marijuana dispensaries.  The initiative was soundly defeated last November, but the Supreme Court exercises its discretion to decide the “technically moot” case.  The constitutional provision (added by Proposition 218) that the court today finds inapplicable, among other things, dictates the timing of elections to approve taxes imposed by “local governments.”

Justice Leondra Kruger, joined by Justice Goodwin Liu, writes a concurring and dissenting opinion.  The majority, which spends considerable time responding to Justice Kruger’s opinion, concludes that “the common understanding of local government does not readily lend itself to include the electorate, instead generally referring to a locality’s governing body, public officials, and bureaucracy.”  Justice Kruger, on the other hand, believes that “[a] tax passed by voter initiative, no less than a tax passed by vote of the city council, is a tax of the local government, to be collected by the local government, to raise revenue for the local government.”  Alluding to the majority’s literary reference, Justice Kruger writes, “And so in the name of cutting the voters loose from their self-imposed restraints, the majority thwarts the evident intent of the voters who passed Proposition 218 for the sake of governing all local taxes, not just some.”

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

August 26, 2017

“When the 9th Circuit turns to the California Supreme Court”

In an article subtitled, “Recent case suggests that the 9th Circuit might be applying a less stringent standard for when it feels obliged to certify a question about California law to the state high court,” Horvitz & Levy partners Peder Batalden and Felix Shafir write in Friday’s Daily Journal [subscription] about the Ninth Circuit’s request in Troester v. Starbucks Corp. that the Supreme Court answer a question of state employment law.

We wrote about that “unusual” request when the Supreme Court agreed to answer the question.  Peder and Felix’s article gives the topic a much more detailed treatment.

August 26, 2017

Life on the Supreme Court’s criminal central staff

In a video, Judicial Staff Attorney Mark Wilson describes working on the Supreme Court’s criminal central staff.  (Related:  here and here.)

August 25, 2017

Summary of August 23, 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 August 23, 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

Heimlich v. Shivji, S243029– Review Granted– August 23, 2017

The Sixth District Court of Appeal held in a published opinion, Heimlich v. Shivji (2017) 12 Cal.App.5th 152, that a party timely presented his section 998 claim to the arbitrator, the arbitrator should have reached the merits of that claim, and the arbitrator’s refusal to hear evidence of the section 998 offer warranted partially vacating the arbitration award. The court reversed the order confirming the arbitration award.

The question presented is: When a party to an arbitration proceeding makes an offer of compromise pursuant to Code of Civil Procedure section 998 and obtains a result in the arbitration more favorable to it than that offer, how, when, and from whom does that party request costs as provided under section 998?

City of Morgan Hill v. Bushey (River Park Hospitality), S243042– Review Granted –August 23, 2017

In a published opinion, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34, the Sixth District Court of Appeal held that a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s general plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body’s first choice of consistent zoning.

The question presented is: Can the electorate use the referendum process to challenge a municipality’s zoning destination for an area, which was changed to conform to the municipality’s amended general plan, when the result of the referendum—if successful—would leave intact an existing zoning designation that does not conform to the amended general plan?

Gillotti v. Stewart, S242568–Review granted and held –August 23, 2017

In a published opinion, Gillotti v. Stewart (2017) 11 Cal.App.5th 875, the Third District Court of Appeal affirmed the trial court’s entry of judgment on special jury verdict finding the general contractor negligent and liable for certain violations of the Right to Repair Act and finding the grading subcontractor not negligent and the trial court’s judgment finding the builder liable after failing to appear for trial. The Court of Appeal held that: (1) the Right to Repair Act bars common law claims for damages caused by construction defects within the scope of the Act, subject to specific exclusions within the Act, such as fraud and personal injury; (2) the Act covered the subcontractor’s alleged damage to trees during driveway construction, thus a common law claim to recover for the tree damage was precluded; (3) the homeowner failed to establish prejudice from the trial court’s error in instructing on a special verdict form that the Act only covered damages “to the structure”; (4) evidence supported finding that the subcontractor was not negligent with respect to the home’s violations of the Act’s drainage standards; (5) the subcontractor’s offer to compromise, though inconsistently described, was sufficiently capable of valuation, thus the homeowner’s failure to respond supported an award of expert witness fees; and (6) the homeowner’s husband’s pecuniary interest in the house precluded recovery of attorney fees for his legal work on the case.

Further action in this matter is deferred pending disposition of a related issue in McMillian Albany LLC v. Superior Court, S229762, which presents the following question:  Whether the Right to Repair Act (Civ. Code, § 895 et seq.) precludes a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?

Order Limiting Issues After Review Previously Granted

Quigley v. Garden Valley Fire Protection District, S242250– Order limiting issues after review previously granted –August 23, 2017

In a published decision, Quigley v. Garden Valley Fire Protection District (2017) 10 Cal.App.5th 1135, the Third District Court of Appeal affirmed the trial court’s judgment granting nonsuit in favor of two fire protection districts. The Court of Appeal held that: (1) governmental immunity is jurisdictional and can be raised at any time and thus is not subject to the rule that failure to raise a defense by demurrer or answer waives that defense; (2) the firefighter’s injuries were covered by California Government Code section 850.4’s firefighting immunity, which provides immunity regardless of whether the nature of the condition of the firefighting equipment or facilities affects the ability to fight fires.

After granting review, the California Supreme Court limited the issue to the following: (1)  Whether, as the Court of Appeal held, the governmental immunity set forth in Government Code section 850.4 may be raised for the first time at trial.

Request to Answer Certified Question of State Law Granted

Meza v. Portfolio Recovery Associates, S242799– Request to answer a question of state law granted– August 23, 2017

The United States Court of Appeals for the Ninth Circuit certified the following question of state law to the California Supreme Court:  “Under § 98(a) of the California Code of Civil Procedure, must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?”

Review Denied (with dissenting justices)

Ogunsalu v. Superior Court (California Commission on Teacher Credentialing), S242539– Denied Review [Kruger, J. voting to grant petition]– August 23, 2017

In a published decision, Ogunsalu v. Superior Court (2017) 12 Cal.App.5th 107, The Court of Appeal, Fourth District, Division One, dismissed a petition for writ of mandate challenging the denial of a teacher’s request for a continuance of the hearing on his challenge to the Commission on Teacher Credentialing’s recommendation to suspend his preliminary teaching credentials. The Court of Appeal held: (1) the self-represented teacher’s vexatious litigant pre-filing order applied to his superior court challenge to the administrative law judge’s denial of his request to continue an administrative proceeding where the teacher was the respondent; and (2) the teacher’s petition for writ of mandate was moot because the administrative hearing had been concluded.

Depublished

None.

August 25, 2017

Tax elections, childhood sexual abuse statute of limitations opinions filing Monday

On Monday morning, the Supreme Court will file opinions in California Cannabis Coalition v. City of Upland and Rubenstein v. Doe No. 1.  (Briefs here; oral argument video here.)  These are the last two opinions for cases argued on the late-May calendar.

California Cannabis Coalition raises the issue whether a proposed initiative measure that would impose a tax is subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election.

In Rubenstein, the court will address these questions:  (1) Does the delayed discovery rule in Code of Civil Procedure section 340.1 apply to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act must be made?  (2) Does Government Code section 905, subdivision (m), apply to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009?

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

August 24, 2017

Highlighting separate statements

Yesterday we wrote about Supreme Court justices’ separate statements when review is denied of unpublished Court of Appeal opinions and said that the statements should appear in the Supreme Court’s official reports.  Otherwise, we said, the statements would be available only on the Supreme Court’s online docket, appended to the opinion linked to on the Court of Appeal docket, “and also maybe in a computer research database.”

Well, it turns out the Supreme Court and the Reporter of Decisions are taking steps to insure that appearing in computer research databases is more than just a “maybe.”

The Reporter of Decisions, Lawrence Striley, explained to At The Lectern how his office signifies that a Court of Appeal opinion has been re-posted with a Supreme Court justice’s separate statement appended:  “We post it with the original posting date but add an ‘s’ to the docket number. The scheme we use for posting both published and nonpublished opinions and to which the various publishers have become accustomed is that the additional letters after the docket number mean that something ‘special’ has happened. For example, if a previously posted opinion has been modified we add an ‘m’ to the docket number. For a second modification, we add an ‘n.’ Here, the ‘s’ following the docket number, especially when combined with the original posting date, indicates to all publishers that a Supreme Court statement has been appended.”

Thus, yesterday’s re-posting of the Court of Appeal opinion with Justice Liu’s separate statement shows up on the unpublished opinions web page like this:

Aug 23, 2017 G054816S
[PDF] [DOC]
J.C. v. Superior Court CA4/3 filed 6/28/17

The “S” and the June filing date make the opinion stand out on the page.

August 24, 2017

“Will Jerry Brown Tilt California Supreme Court Against Business?”

Daniel Fisher comments in Forbes.  Although acknowledging that “[t]he high court’s decisions have mostly been unanimous in recent years,” he says that Governor Jerry Brown’s appointment to replace retiring Justice Kathryn Werdegar “could be bad news for business, as California has long been a laboratory for costly legal innovations including strict liability and so-called ‘bystander injury’ damages for people who observe a family member getting hurt.”

August 24, 2017

Supreme Court upholds most of Prop. 66, but it refuses to be bound by the part that would have wreaked havoc on the court’s functions

Giving its traditional deference to initiative measures approved by the voters, the Supreme Court today in Briggs v. Brown upholds most of Proposition 66, which is designed to speed up executions in California.  But the court ruled that the courts themselves can’t be forced to rush its death penalty reviews, concluding that provisions “that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.”  The court states that the part of Proposition 66 providing “that the courts ‘shall complete the state appeal and the initial state habeas corpus review in capital cases’ within five years is properly construed as an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice.”

Complying with the Proposition 66 deadlines would have turned the Supreme Court into virtually a death-penalty-only court.  The court seems to acknowledge this fact.  It says nothing in the initiative “suggests that short shrift should be given to the decisionmaking process, or that capital posttrial review proceedings should dominate dockets to the point that other cases would be left to languish.”  And it also cautions that it cannot permit “the material impairment of judicial functions by any statute.”

The court is only partially divided today.  It is unanimous in rejecting the one argument that would have invalidated the entire initiative — that Proposition 66 violates the single-subject rule of the state constitution.  (Cal. Const., art. II, section 8, subd. (d) [“An initiative measure embracing more than one subject may not be submitted to the electors or have any effect”].)  The disagreements concern two specific provisions in the law.

The majority opinion is written by Acting Chief Justice Carol Corrigan and concurred in by Justices Kathryn Werdegar, Goodwin Liu, Leondra Kruger, and pro tem Justice Andrea Hoch.  Justice Mariano-Florentino Cuéllar writes a concurring and dissenting opinion, joined by pro tem Justice Raymond Ikola.  (The assignment of a temporary Chief and two pro tem justices was necessitated by the recusal of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin.)  Also, Justice Liu writes a separate concurring opinion, which is signed by Justices Werdegar, Kruger, and Hoch.  (A majority of justices signing a concurring opinion has happened before.)

Justice Cuéllar’s primary problem with the majority concerns its treatment of the five-year deadline on the courts.  He doesn’t disagree that a statute cannot impose such a deadline.  To the contrary, he wants to strike down that provision as unconstitutional, instead of construing it to be directory as the majority does.  He writes, “When we twist the words of an initiative and ignore its clear purpose under the guise of ‘saving’ it from being declared unconstitutional, then we are merely offering a pacifier as a substitute for a law the voters enacted, and encouraging initiative proponents to deceive voters about the actual effectiveness of a proposed law.”

Justice Cuéllar also parts company with his colleagues who allow to stand the part of Proposition 66 that authorizes an appeal to the Court of Appeal from a superior court ruling on an initial capital habeas corpus petition.  After oral argument, the Supreme Court asked for supplemental briefing on this issue, asking whether the initiative provision “conflicts with the grant of appellate jurisdiction to this court ‘when judgment of death has been pronounced.'”

August 23, 2017

Another Justice Liu separate statement on denial of review that will remain largely inaccessible

The Supreme Court today denied review in J.C. v. Superior Court, a juvenile dependency case.  Justice Goodwin Liu wrote a separate statement to accompany the denial order.  He, and other justices, have done that a few times (e.g., here) since he revived the long-dormant practice two years ago.

Unlike his past separate statements, Justice Liu’s statement in this case is not a dissent — no justice recorded a vote to grant review — but instead states, “Although I agree this case is not a proper vehicle for resolving the issues, lack of clarity in the statutory scheme has given rise to differing interpretations in the courts, and we may eventually have to intervene.”  He does say, however, that the issues involved “seem[ ] best resolved by the Legislature” because “[t]he statutory scheme is ambiguous, and the balance to be struck is fundamentally a policy decision.”  That’s consistent with Justice Liu’s concurring opinion in a different dependency case last month.

There is a problem with Justice Liu’s separate statement, but it’s not its substance.  Rather, because the Court of Appeal’s J.C. opinion is unpublished, access to Justice Liu’s separate statement will be limited.

The Supreme Court’s policy is to append separate statements to the pertinent Court of Appeal opinion.  When the Court of Appeal opinion is published, the opinion and the separate statement are published in the official reports of the Court of Appeal.  (See, e.g., Vergara v. State (2016) 246 Cal.App.4th 619, 652.)  When the Court of Appeal opinion is not published, however, the separate statement will be available only on the Supreme Court’s online docket (see, e.g., here), the opinion linked to on the Court of Appeal docket (see, e.g., here), and also maybe in a computer research database (see, e.g., People v. Cruz-Santos (Nov. 18, 2015, A139860) 2015 WL 7282040, at *18).

All Supreme Court separate statements should be published in the official reports, regardless of the publication status of the Court of Appeal opinion.  This could be accomplished by publishing those statements in the Supreme Court official reports, something we’ve advocated before.

August 23, 2017

Another Supreme Court “yes” for the Ninth Circuit, this time for procedural question in limited civil cases

In the last five years, the Supreme Court has granted 18 of the last 19 federal appellate court requests to answer questions of California law.  And even the one denial wasn’t really a denial.  There hasn’t been a flat “no” since March 2012.

The string of grants includes today’s action in Meza v. Portfolio Recovery Associates, LLC.  In that case, the Ninth Circuit has asked:  “Under § 98(a) of the California Code of Civil Procedure, must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?”  The procedural question, arising only in limited civil cases, is relevant to the Ninth Circuit’s determination whether the defendants in the case misused the section 98 procedure and thus violated the federal Fair Debt Collection Practices Act.

August 23, 2017

Prop. 66 opinion — determining Supreme Court’s future — filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Briggs v. Brown, which was argued on the June calendar.  (Briefs here; oral argument video here.)

Institutionally for the court, this is one of biggest cases in a long time.  It involves a challenge to the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).  If upheld in its entirety, the initiative measure to speed up executions would profoundly transform the court’s docket into one containing death penalty cases to the exclusion of almost all others.

Prop. 66 covers many issues, as does the writ petition that challenges it.  Additionally, a few days after oral argument in the case, the court asked for supplemental briefing regarding “[w]hether the authorization of an appeal to the Court of Appeal from the decision of a superior court on an initial capital habeas corpus petition (Pen. Code, § 1509.1, subd. (a)) conflicts with the grant of appellate jurisdiction to this court ‘when judgment of death has been pronounced’ (Cal. Const., art. VI, § 11, subd. (a); see id., § 12, subd. (d)).”

There are two pro tem justices for the case — Justices Andrea Hoch (Third District Court of Appeal) and Raymond Ikola (Fourth District, Division Three) — and Justice Carol Corrigan is the acting Chief Justice, because Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused.

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

August 22, 2017

“Speaking out against immigration raids is her duty, California justice says”

The Sacramento Bee reports on Chief Justice Tani Cantil-Sakauye’s appearance this morning at a Capitol panel discussion hosted by Senate Judiciary Committee Chair Hannah-Beth Jackson.  (Video here.)  The Chief Justice “feels it’s her duty to speak out on federal policy that allows Immigration and Customs Enforcement officials to detain people in and around courtrooms.  ‘If no one ever speaks out, then we can never be the land of the free and the home of the brave,’ Cantil-Sakauye said.”

This is not a new position for the Chief Justice.

August 21, 2017

Major national appellate summit to be held in Long Beach this November

The Appellate Judges Education Institute (AJEI) is holding its fourteenth annual nationwide appellate Summit at the Westin Hotel in Long Beach, California, on November 2 through 5, 2017. The summit, presented in coordination with the Center for Judicial Studies at Duke University School of Law, is co-sponsored by the Appellate Judges Conference of the ABA and its constituent organizations, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys.

This year, as in previous years, the four day gathering will offer attendees some of the best appellate practice-oriented CLE available anywhere. The Summit will feature a writing program presented by Chief Judge Diane Wood and Bryan Garner, a talk by attorney/writer Jonathan Shapiro, and a program on Courts in the Age of New Media, moderated by appellate attorney and noted blogger Howard Bashman. The Summit also will include programs on such topics such as appellate editing, oral argument, appellate ethics, and the role of foreign law in U.S. courts, as well as a 75 year retrospective on the internment of Japanese-Americans during World War II. In addition, attendees can look forward to Dean Erwin Chemerinsky’s engaging review of the U.S. Supreme Court’s recent decisions and programs on a host of other subjects of great interest to appellate lawyers, judges, and staff attorneys. Check out the Summit’s schedule of programs for a complete overview of the available appellate CLE opportunities.

In addition to excellent speakers and programs, there will be numerous social events, including a can’t-miss cocktail reception at the Aquarium of the Pacific, and off-site tours of RMS Queen Mary and other attractions, as well as breakfasts, lunches, cocktail mixers, a Summit dinner, and dine-arounds. These events will provide plentiful opportunities to meet appellate judges and lawyers from around the country. In past years, more than 300 appellate judges, appellate attorneys, and  appellate staff attorneys have attended the Summit. This year’s summit is expected to be well attended. So register early.

August 21, 2017

No opinions today, but five due in the next 10 days

The Supreme Court almost always files its opinions on Mondays and Thursdays at 10:00 a.m. sharp.  Also, the court files its opinions within 90 days after submission of the case (see here and here), which usually occurs as soon as oral argument concludes, but occasionally not until after completion of post-argument supplemental briefing.

The court is not issuing any opinions today.  But there are still two undecided cases from the late-May calendar and three undecided cases from the June calendar.  Within the 90-day period, there are two more regular filing days for the late-May cases (this Thursday and a week from today) and a third filing day for the June cases (August 31).  (August 31 is also Justice Kathryn Werdegar’s last day on the bench.)  So, unless the court calls for new supplemental briefing, expect opinions in these cases within the next 10 days:

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

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

The big one — Briggs v. Brown:  This case presents issues regarding the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).  The court ordered supplemental briefing in this matter, but it did not change the submission date.

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

People v. Daniels:  This is an automatic direct appeal from a February 2001 judgment of death.

August 18, 2017

Summary of August 16, 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 August 16, 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

San Diegans for Open Government v. San Diego State University Research Foundation, S242529–Review Granted and Held– August 16, 2017

The Supreme Court granted review and deferred further action pending the disposition of Wilson v. Cable News Network, Inc., S239686, which presents the following issue:  in deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?

Here, the underlying dispute between the parties concerned defendant’s publication of news articles critical of an attorney.  The plaintiff, an entity controlled by that attorney, sued the defendants and alleged violations of statutory prohibitions on self-dealing involving public funds. In a published opinion, San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, the Court of Appeal, Fourth District, Division One, rejected the plaintiff’s argument that the anti-SLAPP statute does not apply, holding that reporting the news is protected speech within the ambit of the anti-SLAPP statute.

Review Denied (with dissenting justices)

None.

Depublished

None.

August 18, 2017

“A Conversation with Justice Mariano-Florentino Cuéllar and a Review of Significant Decisions”

The Appellate Courts Committee of the Santa Clara County Bar Association will present a Supreme Court program on August 29, from noon to 2:00 p.m., in San Jose.  It will also be webcast live.

There will be a conversation with Justice Mariano-Florentino Cuéllar, followed by a review of significant Supreme Court decisions during the 2016-2017 term.  On the panel will be UC Berkeley Professor David Carrillo, Santa Clara County Counsel Danny Chou, and appellate lawyer Myron Moskovitz.

The panelists might or might not have available to discuss what will likely be the biggest Supreme Court opinion of the term — Briggs v. Brown, the challenge to Proposition 66, the initiative to speed up California’s death penalty system.  The case was argued on the June calendar, and the last regular opinion-filing day within the 90-day period is August 31.

August 17, 2017

Supreme Court finds assaulted harbor patrol officer was not a peace officer

Seeing “no reason why the Legislature might have wanted to confer the status and ‘formidable power’ of a peace officer on public employees who have no necessary law enforcement duties,” the Supreme Court today reverses a conviction for assaulting a peace officer because the prosecution did not prove that the assaultee — a harbor patrol officer — was a peace officer under the relevant statutory definition.  The court’s 5-2 opinion by Justice Kathryn Werdegar, in People v. Pennington, finds that the Legislature has conferred peace-officer-per-se status on only the Attorney General and Department of Justice special agents and investigators and that the evidence was insufficient to establish the assaulted harbor patrol officer was a peace officer.

The court is unanimous in finding to be flawed the statutory interpretation by the Second District, Division Six, Court of Appeal and in agreeing with a 2008 opinion by the Second District’s Division Four.  But Justice Leondra Kruger (joined by Chief Justice Tani Cantil-Sakauye) doesn’t agree that the evidence in this case was necessarily insufficient to meet the statutory definition of peace officer and would remand the case to the Court of Appeal to construe the definition under appropriate standards.

August 16, 2017

Opinion filing tomorrow about assaults on harbor patrol officers

Tomorrow morning, the Supreme Court will file its opinion in People v. Pennington, which was argued on the late-May calendar.  (Briefs here; oral argument video here.)

In Pennington, the court will decide whether the People proved that the named victim, a harbor patrol officer for the City of Santa Barbara Waterfront Department, is a peace officer within the meaning of Penal Code section 243, subdivision (b), supporting defendant’s conviction for battery on a peace officer.

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

August 16, 2017

Ninth Circuit sends employment law case to Supreme Court [Updated]

The Ninth Circuit today asks the California Supreme Court to answer a question that it says is one “of extreme importance to numerous employees and employers in California” and that has “no clear answer” under California law.  The request — in Frlekin v. Apple Inc. — is not unexpected; the federal appeals court at oral argument signaled this action.

The question in Frlekin is:  “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order No. 7?”

Yesterday, the Ninth Circuit decided an appeal —Frealy v. Reynolds  — based on the Supreme Court’s answer to a referred question of state law in another case.  (The case was called Carmack v. Reynolds in the Supreme Court.)

The Supreme Court should let the Ninth Circuit know by mid-October — give or take — whether it will answer the question in Frlekin.  It probably will.

[August 18 update:  the Supreme Court docketed the Frlekin request yesterday.]

August 14, 2017

Summary of August 9, 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 August 9, 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

Quigley v. Garden Valley Fire Protection District, S242250 – Review Granted – August 9, 2017

This was an action by a firefighter injured when she was run over by a fire truck while sleeping at a fire base camp. In a published decision, Quigley v. Garden Valley Fire Protection District (2017) 10 Cal.App.5th 1135, the Third District Court of Appeal affirmed the trial court’s order granting nonsuit in favor of the defendant fire protection districts. The Court of Appeal held that: (1) governmental immunity is jurisdictional and can be raised at any time and thus is not subject to the rule that failure to raise a defense by demurrer or answer waives that defense; (2) the plaintiff firefighter’s injuries were covered by Government Code section 850.4’s firefighting immunity, which provides immunity regardless of whether the condition of the firefighting equipment or facilities affects the ability to fight fires.

The questions presented in the Supreme Court are as follows:  (1) Did defendants forfeit the immunity provided under Government Code section 850.4 for governmental entities involved in firefighting by failing to timely raise the defense before trial? (2) Does section 850.4 apply to immunize defendants in an action for personal injuries allegedly caused by a dangerous condition of property being used as a firefighting facility, where plaintiff’s injuries did not result from a condition of that property that rendered it inoperative, useless, or otherwise less effective in aiding defendant’s firefighting efforts?

Review Denied (with dissenting justices)

None.

Depublished

Hardesty v. State Mining and Geology Board, S242755– Depublished Court of Appeal Opinion– August 9, 2017

This was an action under the Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code § 2710 et. seq.) in which the plaintiffs challenged findings by the State Mining and Geology Board. The Board’s disputed findings concluded plaintiffs had no vested rights to surface mine at a particular location.  The Board’s findings effectively denied plaintiffs a “grandfather” exemption from the need to obtain a County mining permit. (See § 2776, subd. (a).) The trial court denied the plaintiff’s petition for writ of administrative mandate.  Plaintiffs then appealed from the judgment.

On appeal, plaintiffs argued, inter alia, the Board and the trial court misunderstood the legal force of their 19th century federal mining patents. They asserted that those patents established a vested right to surface mine after the passage of SMARA without the need to prove they were surface mining on SMARA’s operative date of January 1, 1976.  In a published opinion, Hardesty v. State Mining and Geology Board (2017) 11 Cal.App.5th 790, the Third District Court of Appeal held 19th century federal mining patents have no effect on the application of state mining regulations.  The Supreme Court ordered the opinion depublished.

August 13, 2017

Mind the gap . . . in the new publication rules when the Supreme Court dismisses review

A 2016 Supreme Court rules change means that granting review in a case no longer automatically depublishes the case’s Court of Appeal published opinion (rule 8.1105(e)(1)(B)), but, pending review, the opinion loses its precedential effect (rule 8.1115(e)(1) [opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only”]).

The new rules also provide that, after review, a Court of Appeal opinion’s precedential effect might be revived.  However, there’s apparently a gap in the rules creating uncertainty about the post-review precedential status of opinions in certain cases when the Supreme Court has dismissed review.

Rule 8.1115(e)(2) takes care of most — but not all — situations after the Supreme Court is done with a case in which it has granted review:  “After decision on review by the Supreme Court, unless otherwise ordered by the Supreme Court . . . , a published opinion of a Court of Appeal in the matter, and any published opinion of a Court of Appeal in a matter in which the Supreme Court has ordered review and deferred action pending the decision, is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”

If the Supreme Court has issued an opinion in the case, or if the case was a grant-and-hold and there’s been a decision in the lead case, (e)(2) has you covered.  But what about when review is dismissed and there’s been no Supreme Court “decision on review”?

For example, reviews were dismissed because of settlements in Ace American Insurance v. Fireman’s Fund Insurance and Hayward v. Superior Court, and the court dismissed review in In re George F. because of mootness.  The Court of Appeal opinions remain published despite the dismissals of review (rule 8.528(b)(3)), but do they again have binding and precedential effect, or do they forever retain their pending-review status of being persuasive only?  The rules don’t say.

Can’t the Supreme Court fix things when it dismisses review in those types of cases by specifying the precedential effect of the Court of Appeal opinion?  It doesn’t look like it.  Rule 8.1115(e)(3) allows the Supreme Court to make an order specifying precedential effect, but only regarding “an opinion covered by (1) or (2),” i.e., those published Court of Appeal opinions in cases “[p]ending review and filing of the Supreme Court’s opinion” ((e)(1)) or “[a]fter decision on review by the Supreme Court” ((e)(2)).  A case in which review is dismissed without any decision doesn’t fall into either category.

The Supreme Court could depublish the Court of Appeal opinion after dismissing review (rules 8.1105(e)(2), 8.1125(c)), which would make the opinion not citeable even for its persuasive value (rule 8.1115(a)).  However, the Supreme Court didn’t do that in the Ace American, Hayward, or George F. cases, and in fact denied a depublication request in Hayward (a request which was opposed by the author of the Court of Appeal opinion).  Superior court judges can be excused if they’re unsure how much weight to give those opinions.

August 10, 2017

Supreme Court reaffirms limit on malicious prosecution actions

Reaffirming and strengthening the “interim adverse judgment rule,” the Supreme Court today holds in Parrish v. Latham & Watkins that plaintiffs who defeat a summary judgment motion on the merits cannot later be sued for malicious prosecution even if, after denying the motion, the superior court finds the plaintiffs’ action was brought in bad faith because it lacked evidentiary support.

The summary judgment denial is normally conclusive that the plaintiffs had probable cause to file the lawsuit, which defeats a subsequent malicious prosecution action.  The court’s unanimous opinion by Justice Leondra Kruger states the denial establishes that the plaintiffs’ “position had arguable merit, whether or not, after trial, the court wished it had ruled against them.”

Not every summary judgment denial has that effect, however.  The court explains that “the interim adverse judgment rule does not apply when the adverse judgment in question has been ‘shown to have been obtained by fraud or perjury.'”  But the opinion keeps the exception narrow, saying the general rule still applies even when “litigants or their lawyers inadvertently submit ‘materially false facts’ . . . in support of their claims.”

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

August 9, 2017

Malicious prosecution opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Parrish v. Latham & Watkins.  This will be the first opinion in a case argued on the June calendar.  (Briefs here; oral argument video here.)

Parrish raises these issues:  (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?

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

August 5, 2017

“Truancy case goes to the top”

The Ventura County Star’s lead story this morning reports on the Supreme Court’s recent grant of review in In re A.N.  The article, by Cheri Carlson, says the county public defender “has argued that the District Attorney’s Office short-circuited the legal system, filing a truancy case against [A.N.] before she had a chance to go before a Student Attendance Review Board, or SARB.”  The Second District, Division Six, Court of Appeal rejected that argument.

The Star has been covering this case and the county’s truancy system in general.

August 3, 2017

Divided Ninth Circuit reinstates California Supreme Court’s denial of death penalty habeas relief

Earlier this week, a 2-1 Ninth Circuit panel refused to go along with overturning a California Supreme Court decision, when the federal appeals court reversed a district court’s grant of habeas corpus relief to a death row prisoner.  The district court’s ruling was based on ineffective counsel during the penalty phase of the prisoner’s state court trial.  Previously, the Supreme Court had affirmed the death sentence, 6-1, in a direct automatic appeal (People v. Andrews (1989) 49 Cal.3d 200) and then, by a 5-2 vote, it denied a habeas corpus petition raising the ineffective-counsel issue (In re Andrews (2002) 28 Cal.4th 1234).

The appeals court decision in Andrews v. Davis supersedes a two-year-old opinion in which the court reached the same result, although the earlier opinion was unanimous (Andrews v. Davis (9th Cir. 2015) 798 F.3d 759).

The Supreme Court doesn’t always fare this well at the Ninth Circuit on habeas petitions.  (See here.)

August 2, 2017

No conference held the week of July 31, 2017

The Court is holding no conference this week.  Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

August 2, 2017

New pro tem parade begins as Supreme Court announces 9-case September calendar

Apparently giving up on having Justice Kathryn Werdegar’s replacement appointed by the Governor and confirmed in time for its first oral argument of the new term, the Supreme Court today announced a 9-case September calendar with 8 Court of Appeal justices sitting as pro tems.  (One justice is sitting on two related cases.)  Thus begins a new pro tem parade, even though it’s been five months since Justice Werdegar announced her plans to retire, effective August 31.

The pro tem appointments — made generally alphabetically — for September come from the H-I-J-K-L segment of the Court of Appeal roster.

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

Gerawan Farming, Inc. v. Agricultural Labor Relations Board:  (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit?  (First District, Division Two, Court of Appeal Presiding Justice Anthony Kline is the pro tem.)

Tri-Fanucchi Farms v. Agricultural Labor Relations Board:  (1) May an employer assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union?  (Presiding Justice Kline is the pro tem on this case, too.)

F.P. v. Monier:  Is a trial court’s error in failing to issue a statement of decision upon a timely request reversible per se?  (This case was continued from the late-May calendar.)  (First District, Division One, Presiding Justice Jim Humes is the pro tem.)

People v. Page:  Does Proposition 47 (“the Safe Neighborhoods and Schools Act”) apply to the offense of unlawful taking or driving a vehicle (Veh. Code, § 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18?  (This case was continued from the June calendar.)  (Third District Court of Appeal Justice Harry Hull, Jr., is the pro tem.)

In re Martinez:  Could defendant use a petition for recall of sentence under Penal Code section 1170.18 to request the trial court to reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379?  (Second District, Division One, Court of Appeal Justice Jeffrey Johnson is the pro tem.)

People v. Wall:  This is an automatic direct appeal from a January 1995 judgment of death.  The court’s website does not list issues for such appeals.  (Second District, Division Three, Court of Appeal Justice Luis Lavin is the pro tem.)

City of San Buenaventura v. United Water Conservation:  (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26?  (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?  (Fourth District, Division One, Court of Appeal Justice Joan Irion is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

Vasilenko v. Grace Family Church:  Does one who owns, possesses, or controls premises abutting a public street have a duty to an invitee to provide safe passage across that public street if that entity directs its invitees to park in its overflow parking lot across the street?  (First District, Division Five, Court of Appeal Presiding Justice Barbara Jones is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

People v. Henriquez:  This is an automatic direct appeal from a June 2000 judgment of death.  The court’s website does not list issues for such appeals.  (Fifth District Court of Appeal Justice Herbert Levy is the pro tem.)

 

July 31, 2017

Supreme Court says affirmative defense isn’t an action or proceeding for attorney fee purposes, but a 4-3 majority awards fees anyway

In Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, the Supreme Court today holds a contract provision for attorney fees in a “legal action or any other proceeding” to enforce the contract does not permit an attorney fee award when the contract is raised as an affirmative defense rather than in a cross-complaint.  However, the court’s 4-3 opinion by Justice Ming Chin (concurred in by Chief Justice Tani Cantil-Sakauye, and Justices Kathryn Werdegar and Mariano-Florentino Cuéllar) finds a basis for an award in another part of the attorney fee provision, because the action against the defendants was “brought . . . because of an alleged dispute . . . in connection with any provision of” the contract.

Justice Leondra Kruger dissents, joined by Justices Carol Corrigan and Goodwin Liu.  She agrees with the majority that an affirmative defense is not a “legal action” or “proceeding,” but finds that interpreting the second part of the attorney fee provision to support a fee award “defies normal usage.”  The dissent says it is not succumbing to “the temptation to rewrite the parties’ contract for them.”

The court affirms the bottom line of the 2-1 decision of the First District, Division Two, Court of Appeal.  (Yes, the Court of Appeal was divided, too.)  However, the Court of Appeal’s reasoning — that an affirmative defense is a “legal action” or “other proceeding” — is rejected by all seven of the Supreme Court’s justices.  The high court also disapproves an opinion by the Second District, Division Three.

July 30, 2017

Ask not what the Supreme Court can do for the Ninth Circuit

The Ninth Circuit frequently exercises its option under rule 8.548 to ask for the California Supreme Court’s assistance in determining state law issues.  And the Supreme Court usually agrees to help.  The Ninth Circuit has sent four requests this year; the Supreme Court has granted three (here, here, and here) and one is still pending.

But the federal appeals court apparently doesn’t want to wear out its welcome.  Sometimes when it asks a question, it politely “recognize[s] that our certification request adds to the substantial caseload of the Court.”  Other times, however, it simply doesn’t ask at all, even though it might be a close call.  This restraint occurs more often than you’d think.

We noted a non-ask case four months ago.  Recently, there have been other such cases.  Just two days ago, in United States v. Martinez-Lopez, an en banc Ninth Circuit declined the pleas of three of its judges to send a question to the Supreme Court.  Similarly, last month, in First Resort, Inc. v. Herrera, a concurring judge wanted to ask for a Supreme Court decision on a California state law issue, but the two other panel judges didn’t go along.  And also last month, in Cooper v. Tokyo Electric Power Co., the court avoided ruling on an issue of California law that “may well require us to certify a question to the California Supreme Court.”

There might be a number of Ninth Circuit requests, but it could be worse.

July 28, 2017

Summary of July 26, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on July 26, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Boling v. Public Employee Relations Board, S242034– Review Granted – July 26, 2017

In a published decision, Boling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853, the Court of Appeal, Fourth District, Division One, annulled the Public Employment Relations Board’s (PERB) decision that the City of San Diego was obliged to “meet and confer” with the city employees’ union before a citizen-sponsored pension reform initiative could be placed on the ballot. The Court of Appeal held that (1) the city has no obligation to meet and confer before placing a qualified citizen-sponsored initiative on the ballot; (2) the reform initiative was not a de facto governing-body-sponsored ballot proposal under “statutory agency” principles that could have triggered the meet and confer obligations under the Meyers-Milias-Brown Act; (3) the mayor’s support of the initiative could not be imputed to the city council under the doctrine of actual authority for purposes of rendering the citizen-sponsored initiative a city council-sponsored initiative; (4) the mayor did not have apparent authority to act on behalf of the city council when proposing and campaigning for the citizen-proposed reform initiative; and (5) the city council did not ratify the mayor’s acts.

This case presents the following issues: (1) When a final decision of the Public Employment Relations Board under the Meyers-Milias-Brown Act (Gov. Code, § § 3500 et seq.) is challenged in the Court of Appeal, what standard of review applies to the Board’s interpretation of the applicable statutes and its findings of fact? (2) Is a public agency’s duty to “meet and confer” under the Act limited to situations in which the agency’s governing body proposes to take formal action affecting employee wages, hours, or other terms and conditions of employment?

Review Denied (with dissenting justices)

Manteca Unified School District v. Reclamation District No. 17, S242032– Review Denied [Werdegar, J., voting to grant review] – July 26, 2017

In a published decision, Manteca Unified School District v. Reclamation District No. 17 (2017) 10 Cal.App.5th 730, the Third District Court of Appeal reversed the trial court’s ruling that a school district was not exempt from paying assessments to a reclamation district. The Court of Appeal held that: (1) the trial court erred in declining to apply the constitutional mandate of Proposition 218 to the statutory exemption from assessments provided by Water Code section 51200; (2) the Right to Vote on Taxes Act required proof of “no special benefit” for the school district to continue to rely on the exemption from the reclamation district’s assessment authority.

Depublished

Broadway Victoria v. Norminton, Wiita & Fuster, S242266– Depublished Court of Appeal Opinion – July 26, 2017

In this legal malpractice action, in a published opinion, Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017) 10 Cal.App.5th 1185, the Court of Appeal, Second District, Division Five, affirmed the trial court’s grant of nonsuit on the plaintiff client’s breach of fiduciary duty claim and part of its legal malpractice claim. The Court of Appeal held that: (1) a breach of fiduciary duty claim is duplicative and should be dismissed if it arises from the same facts and seeks the same relief as a negligence claim for attorney malpractice; (2) the client’s breach of fiduciary duty claim against the attorneys was duplicative in the absence of supporting evidence to the contrary; and (3) the client’s evidence of breach of fiduciary duty was speculative so as to require that nonsuit be granted.  The Supreme Court ordered the opinion depublished.

July 28, 2017

“Why you should care about who will sit on California’s Supreme Court”

Bob Egelko writes in the San Francisco Chronicle that, as Governor Brown prepares “to make one of the most consequential appointments of his final term in office, a justice who could shift the ideological balance of the state Supreme Court,” Californians need to “get reacquainted with an institution that impacts the lives of most of the state’s residents.”  The piece is a sophisticated look at the court’s past and present.

It might be too late for Justice Kathryn Werdegar’s replacement to be appointed and confirmed in time to participate in the court’s next oral argument calendar, during the first full week of September.  But the Governor could still avoid an extended parade of pro tem justices by soon naming his pick.  After all, it’s been almost five months since Justice Werdegar announced her plans to retire.

July 28, 2017

Attorney fee opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, the last undecided case from the early-May calendar.  (Briefs here; oral argument video here.)

Mountain Air raises these issues:  (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement?  (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?

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

July 28, 2017

“California Supreme Court ruling bolsters bullet train foes”

The Associated Press reports that the precedent in yesterday’s Supreme Court Friends of the Eel River decision “ensures further legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco.”

July 27, 2017

CEQA not preempted by federal railroad law for state-owned railroads

In a case that could end up in the U.S. Supreme Court, the California Supreme Court today holds that federal law does not preclude state public entity compliance with CEQA regarding a railroad project that the state owns.  The court’s 6-1 opinion in Friends of the Eel River v. North Coast Railroad Authority, by Chief Justice Tani Cantil-Sakauye, concludes that, although the federal ICC Termination Act of 1995 would not allow the state to impose CEQA regulations on a privately owned railroad, CEQA compliance by the state concerning its own rail line is not state regulation at all, but a permissible “act of self-governance on the part of the state.”  The state acting in accord with CEQA is operating within “a sphere of regulatory freedom enjoyed by owners” and is comparable to a private owner following its “internal corporate rules and bylaws” in guiding its “market-based decisions,” the opinion says.  The court finds that the federal law must allow “the state as owner [to] make its decisions based on its own guidelines rather than some anarchic absence of rules of decision.”

Justice Leondra Kruger signs the majority opinion, but also writes a separate concurrence.  She stresses it remains an open question whether “particular CEQA remedies might be preempted by the ICCTA to the extent the remedy is one that unreasonably interferes with the jurisdiction of the [federal] Surface Transportation Board, which has authorized service over the rail line in question.”

Justice Carol Corrigan dissents.  She says that finding “a law of general application” like CEQA to “be considered a ‘regulation’ of private activity, but not of public activity in the same sphere, appears to be unsupported by precedent” and it unfairly “forces the state to undertake a burden no private railroad owner must bear.”

The court reverses the First District, Division Five, Court of Appeal.

July 26, 2017

Filing tomorrow: opinion in CEQA preemption case possibly headed to SCOTUS

Tomorrow morning, the Supreme Court will file its opinion in Friends of the Eel River v. North Coast Railroad Authority, which was argued on the early-May calendar.  (Briefs here; oral argument video here.)

Eel River is the last undecided case of the three “environmental law week” matters.  (Opinions in the other two were filed two and three weeks ago.)  A law professor has identified the case as one that might end up in the U.S. Supreme Court.  That could explain the large number of amicus briefs the case has attracted.

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

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

July 25, 2017

Evening things out: the end of end-of-term calendar cramming

In the past, the Supreme Court would typically have significantly heavier oral argument calendars at the end of the term than during the rest of the year.  (E.g., here.)  Those calendars — in early-May, late-May, and June — come before the argument-less months of July and August.

Things changed in 2016-2017, however.  This year’s end-of-term calendars were considerably smaller than before.  (E.g., here.)  The change is expected to stay in place going forward.

But this doesn’t mean the court will be hearing fewer cases overall.  In fact, the court heard more cases this term than in 2015-2016.

The difference is the product of changes to the court’s internal procedures.  Jake Dear, the court’s chief supervising attorney, told At The Lectern that the court is now intentionally spreading things out for quality control purposes.  The court is equalizing not just its oral argument sessions, but its work in general.  Because cases are decided within 90 days of argument, heavy end-of-term calendars required much more time over the summer than usual to prepare opinions, leaving less time for the court to get cases ready for the next term’s initial calendars.  “The cupboards were kind of bare in the fall,” Dear said.  The uneven calendars also put stresses on the internal review process.

Within the next few weeks, the court should announce its September calendar.  Which cases and how many are on the calendar could be affected if the court is shorthanded because Justice Kathryn Werdegar’s replacement has not been named and sworn in; the court might want to avoid cases that could end in a 4-3 decision with a pro tem justice in the majority.  But, otherwise, look for a more even number of cases argued each month.

July 24, 2017

Supreme Court again increases trial court discretion to reject three-strikes resentencing petitions

For the second time this month, the Supreme Court has found broad superior court discretion to deny petitions for resentencing under Proposition 36, the Three Strikes Reform Act of 2012.  In People v. Estrada, the Supreme Court today holds that such a denial can be based on facts underlying a charged count that was dismissed according to a plea bargain, but “only if those facts also underlie a count to which the defendant pleaded guilty.”  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes that, to determine whether the defendant was armed while committing his third strike offense, which would bar three-strikes relief, the superior court properly considered 16-year-old testimony at a preliminary hearing preceding the guilty plea.  The court states that “[p]recluding a court from considering facts not encompassed within the judgment of conviction would be inconsistent with the [Act’s] text, structure, and purpose.”

The court affirms the Second District, Division Eight, Court of Appeal.  It also disapproves a 2015 opinion by the Fourth District, Division Three.

July 24, 2017

Supreme Court expands preliminary hearing rights — and mootness doctrine — for parole violations

In People v. DeLeon, the Supreme Court today holds, as a matter of constitutional law, that parolees are still entitled to a preliminary hearing to assess probable cause of a parole violation, even after 2011 legislation transferred most parole revocation hearings from an administrative board to superior courts.  The court’s unanimous opinion by Justice Carol Corrigan recognizes the “legitimate institutional concern” of further burdening overworked and under-resourced superior courts, but concludes that the concern “cannot justify depriving a parolee of his right to due process of law.”

The court also finds that the potential future use of a parole violation against a defendant is not “a disadvantageous collateral consequence” that saves an appeal from mootness once the defendant has completed his jail term for the parole violation.  (Despite the mootness in this case, the court decides the substantive preliminary hearing issue because “[t]he issue [is] ‘likely to recur, might otherwise evade appellate review, and is of continuing public interest.'”)  The opinion further includes a detailed analysis of when the Legislature can amend a statute that has been enacted by initiative.

The court reverses the First District, Division Three, Court of Appeal.  It also disapproves 2017, 2015, and 2014 opinions by the Fourth District, Division Three.

July 22, 2017

Justice Liu co-authors “A Portrait of Asian Americans in the Law” [UPDATED]

Justice Goodwin Liu is the co-author of a report released this week that presents “a comprehensive portrait documenting the rise of Asian Americans in the law, their distribution across practice settings, and the challenges they face in advancing to the top ranks of the profession.”  The report — titled “A Portrait of Asian Americans in the Law” and released by the National Asian Pacific American Bar Association and Yale Law School — concludes, “Asian Americans have penetrated virtually every sector of the legal profession, but they are significantly underrepresented in the leadership ranks of law firms, government, and academia.”

Related:  Justice Liu is interviewed in The American Lawyer [subscription] in “Are Asian-Americans Fed Up With Law?”

Also related:  the Supreme Court has acknowledged its past discrimination against Asian-Americans and has attempted to make amends by symbolically granting two posthumous bar admissions in the last two years.  (Here and here.)

[July 23 update:

Justice Liu has an op-ed in today’s Sunday Los Angeles Times — “Asian Americans fill more lawyer jobs, but not at the top ranks.”  He writes, “It is a chicken-and-egg problem:  Given societal perceptions, it is difficult for many Asian Americans to envision themselves as leaders in law; without more Asian Americans becoming leaders, it is difficult to change perceptions.”

See also articles in the Washington Post (“Law schools are filled with Asian Americans.  So why aren’t there more Asian judges?”) and the ABA Journal (“Asian-Americans are apparently losing interest in law school; report shows outsize enrollment drop”).]

July 22, 2017

Justice Cuéllar’s week at Ninth Circuit conference, Comic-Con [UPDATED]

The Recorder [subscription] reports on Justice Mariano-Florentino Cuéllar’s participation earlier this week in a panel discussion about artificial intelligence and the law at the annual Ninth Circuit Judicial Conference, in San Francisco.  “Cuéllar was critical of a book by philosopher Nick Bostrom about the existential threat to humanity posed by self-aware machines.  But the justice also laid out what he said were the promises and risks presented by AI, in the realm of law and beyond.”

In somewhat related news, Justice Cuéllar was scheduled to appear yesterday at Comic-Con in San Diego at a program called “Judges on Star Wars.”  Sharing the panel with, among others, Ninth Circuit Judge John Owens, Cuéllar was supposed to help analyze these weighty legal issues:  “Is the dark side an addiction or a choice for Kylo Ren?  What are the civil rights of droids?  Did interrogating Bodhi Rook with the Bor Gullet violate Rook’s civil rights?”  This is not Cuéllar’s first appearance at Comic-Con.  Last year, he was there to talk about Star Trek.  That yielded a memorable photo.

[July 25 update:  In a letter published yesterday in The Recorder [subscription], Justice Cuéllar writes to “clarify [his] views on the potential risks posed by ‘superintelligence’ discussed in philosopher Nicholas Bostrom’s influential book.”]

July 21, 2017

Summary of July 19, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on July 19, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

In re A.N., S242494 – Review Granted – July 19, 2017

In a published decision, In re A.N. (2017) 11 Cal.App.5th 403, the Court of Appeal, Second District, Division Six, affirmed the trial court’s order declaring a  juvenile a habitual truant after she missed numerous days of school and charging her a $50 fine.  The court held that the trial court properly exercised jurisdiction because neither a juvenile’s prior failure to respond to a School Attendance Review Board (SARB) directive, nor the issuance of a fourth truancy report, were required under Education Code section 48264.5.

The questions presented are as follows: (1) Is a School Attendance Review Board proceeding or truancy mediation process required before juvenile court proceedings can be instituted to declare a juvenile a habitual truant? (2) Does Education Code section 48264.5 require the issuance of a fourth truancy report before commencing such a proceeding?

Review Denied (with dissenting justices)

None.

Depublished

None.