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.

July 21, 2017

Parole revocation, three strikes opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in People v. DeLeon and People v. Estrada, which were both argued on the early-May calendar.  (Briefs for both cases here; DeLeon oral argument video here; Estrada oral argument video here.)

De Leon raises this question:  In light of the changes made to the parole revocation process in the 2011 realignment legislation (Stats. 2011, ch. 15; Stats. 2012, ch. 43), is a parolee entitled to a probable cause hearing conducted according to the procedures outlined in Morrissey v. Brewer (1972) 408 U.S. 471 before parole can be revoked?

In Estrada, the court will decide whether the trial court improperly relied on the facts of counts dismissed under a plea agreement to find defendant ineligible for resentencing under the provisions of Proposition 36.

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

July 20, 2017

Dependency court can take at-risk children regardless of parental fault

Declining “to adopt an approach that would automatically place an incorrigible child in the delinquency system pipeline,” the Supreme Court today holds in In re R.T. that a statute allowing a court to exercise dependency jurisdiction over a child at risk because of “the failure or inability of his or her parent or guardian to adequately supervise or protect the child” can apply even if the parent was not to blame for the lack of supervision or protection.  The court’s unanimous opinion by Justice Ming Chin comes in the case of a teenager whose mother and grandparents were unable to control her, despite what the court says were the mother’s “concerted (and at times desperate) efforts to protect and discipline” her daughter.  The court finds that the history of a 1987 bill “makes clear that the Legislature did not intend to impose a parental fault requirement.”

Justice Goodwin Liu signs the court’s opinion, but also writes separately.  He notes that “simply being found ‘inadequate’ as a parent, even when the parent is not at fault, can carry a painful stigma,” and he suggests “[t]he Legislature may wish to revisit this issue and, if appropriate, amend the statute in a manner that clarifies the proper balance of competing values in difficult cases like this one.”

Resolving a split of authority, the court affirms the Second District, Division Two, Court of Appeal, and disapproves a 2010 opinion by the Second District, Division One.  It is also critical of language in a 1991 opinion by the First District, Division Two.

July 20, 2017

Supreme Court unanimously affirms death sentence after second trial for Long Beach gang murders

The Supreme Court today affirms the death penalty in People v. Jones for two 1996 gang payback murders committed in Long Beach.  The judgment came in a second trial after a deadlocked jury in the defendant’s first trial.  The court’s unanimous opinion is by Justice Leondra Kruger.

July 19, 2017

Dependency, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in In re R.T. and People v. JonesR.T. was argued on the early-May calendar.  (Briefs here; oral argument video here.)  The Jones opinion will be the first in a case argued on the late-May calendar.  (Briefs here; oral argument video here.)

The R.T. case raises the issue whether Welfare and Institutions Code section 300, subdivision (b)(1), authorizes dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child.

Jones is an automatic direct appeal from a November 1998 death penalty judgment.

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

July 17, 2017

Summary of July 12, 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 12, 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

Gerard v. Orange Coast Memorial Medical Center, S241655– Review Granted– July 12, 2017

This is an action by health care workers sued their hospital employer for alleged Labor Code violations. It presents the following questions:  (1) Did Senate Bill 327 constitute a change in the law or a clarification in the law? (2) Is the Industrial Wage Commission (IWC) Wage Order No. 5, section 11(D) partially invalid to the extent it authorizes health care workers to waive their second meal periods on shifts exceeding 12 hours? (3) To what extent, if any, does the language of Labor Code section 516 regarding the “health and welfare of those workers” affect the analysis? In a published opinion, Gerard v. Orange Coast Memorial Medical Center (2017) 9 Cal.App.5th 1204, the Court of Appeal, Fourth District, Division Three, held the IWC wage order was valid.

Voris v. Lampert, S241812–Review Granted– July 12, 2017

This case presents the following question: Is conversion of earned but unpaid wages a valid cause of action?  In an unpublished opinion, Voris v. Lampert, Case No. B265747, the Court of Appeal, Second District, Division Three, concluded that unpaid wages do not give rise to a cause of action for conversion.

In re Priscilla A., S241995–Review Granted and Held– July 12, 2017

In this juvenile dependency case, a father challenged the juvenile court’s jurisdiction and disposition orders.  The Supreme Court ordered briefing deferred pending decision in In re R.T., S226416, which presents the following issue: Does Welfare and Institutions Code section 300, subdivision (b)(1), authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child?

Wilson v. Cable News Network, Inc., S239686–Briefing Ordered–July 12, 2017

The Court ordered briefing in this case, in which briefing previously had been deferred pending decision in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057. This case 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 an anti-SLAPP 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?

Review Denied (with dissenting justices)

None.

Depublished

Applied Medical Corporation v. Thomas, S241879– Depublished Court of Appeal Opinion– July 12, 2017

After defendant was removed from the board of plaintiff corporation, the corporation exercised its right to repurchase shares of its stock issued to defendant. The defendant objected to the repurchase price. The issues on appeal were: (1) whether the trial court erred in holding the corporation’s conversion claim failed, and (2) whether the trial court correctly ruled the corporation’s fraud claims were barred by the applicable statute of limitations.  The Court of Appeal, First District, Division Five, held in a published opinion, Applied Medical Corporation v. Thomas (2017) 10 Cal.App.5th 927, that the trial court did err on issue (1) and that such a claim may be based on either ownership or the right to possession at the time of conversion. The court held the corporation’s claims were barred by the applicable statute of limitations.  The Supreme Court ordered the opinion depublished.

July 17, 2017

Supreme Court allows Medical Board warrantless access to patient prescription drug records

For the second time in a week, the Supreme Court today recognizes limits to the state constitution’s right to privacy.  In Lewis v. Superior Court, the court holds that the Medical Board of California — in its investigation of a physician — did not violate patient privacy rights by accessing without a warrant, subpoena, or consent, information about the physician’s patients from a state prescription drug database.  The Medical Board’s investigation led to charges against the physician of prescribing dangerous drugs without an appropriate examination and of excessive prescribing.

The court’s unanimous opinion by Justice Goodwin Liu allows the physician to assert his patients’ privacy rights in the administrative proceeding against him, but finds those rights were not violated.  The court explains, “even assuming the Board’s actions constituted a serious intrusion on a legally protected privacy interest, its review of these records was justified by the state’s dual interest in protecting the public from the unlawful use and diversion of a particularly dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians.”  However, the result could be different for a patient’s medical records, which, the court says, “contain far more sensitive information than do prescription records.”

Justice Liu, joined by Justice Leondra Kruger, writes a concurring opinion to the majority opinion he authored.  The separate opinion states what the majority only assumes arguendo — that patients have a privacy right in their prescription records, albeit a right that can be outweighed, as it is in this case.  Justice Liu concludes that “[p]atients retain a reasonable expectation of privacy in prescription drug records that can reveal their medical conditions” and that “[w]here, as here, one government agency discloses patients’ sensitive medical information to another, the privacy intrusion cannot be dismissed as trivial.”

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

July 14, 2017

“California Supreme Court Moves to Make Bar Exam Easier to Pass”

The New York Times reports on the Supreme Court’s recent move to, among other things, itself set the passing score for the bar exam.  According to the Times, “For years, California had set the threshold for passing the exam higher than any other state but Delaware.”

This is another reminder that the court does more than just decide cases.  (See also here, for example.)

July 14, 2017

Patient privacy opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Lewis v. Superior Court, which was argued on the early-May calendar.  (Briefs here; oral argument video here.)

Just yesterday, the court opined about privacy rights.  It will do so again in Lewis.  The case raises these questions:  (1) Do a physician’s patients have a protected privacy interest in the controlled substance prescription data collected and submitted to the California Department of Justice under Health and Safety Code section 11165?  (2) If so, is disclosure of such data to the Medical Board of California justified by a compelling state interest?

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

July 13, 2017

San Diego EIR’s climate change analysis is adequate

In Cleveland National Forest Foundation v. San Diego Association of Governments, a 6-1 Supreme Court today holds that, although an environmental impact report had to analyze whether the subject project — a regional development plan for the San Diego area intended to guide its transportation infrastructure from 2010 to 2050 — would significantly increase greenhouse gas emissions, it did not need to “explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals” in a 2005 executive order by Governor Schwarzenegger of reducing greenhouse gas emissions in California to 80 percent below 1990 levels by the year 2050.  The court’s opinion by Justice Goodwin Liu nonetheless concludes that’s not the end of the story — California’s environmental statutes “require[ ] public agencies . . . to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes.”

Justice Mariano-Florentino Cuéllar dissents.  He finds “the EIR manages to occlude the elephant in the room — that the plan was associated with a major projected increase in greenhouse gas emissions, diverging sharply from emission reduction targets reflecting scientific consensus.”  Justice Cuéllar concludes, “If [the San Diego planning agency] plans to permit hundreds of billions of dollars to be spent in pursuit of a plan that departs so starkly from scientific and political consensus about the emissions decreases needed to avert climate catastrophe, it must explain this divergence in sufficient detail for the public to recognize the long-term harm that will unfold in its name.”

The court reverses a 2-1 opinion from the Fourth District, Division One, Court of Appeal.

July 13, 2017

Retail worker plaintiff can shop for information in PAGA action

In Williams v. Superior Court, the Supreme Court today holds a Marshalls employee plaintiff in a representative action seeking labor law penalties under the Private Attorneys General Act has broad discovery rights.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes the plaintiff should have the same ability to obtain information about other employees whom he is representing as do plaintiffs in non-PAGA class actions.

The court finds unconvincing over-breadth, undue burden, and constitutional privacy objections to the discovery requests.  It says that “[t]he Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in ‘fishing expedition[s],’ to a defendant’s inevitable annoyance,” but “[i]t granted such a right anyway.”

The opinion also disagrees with Court of Appeal opinions that had conditioned the discovery of all “facially private information” on a showing of “a ‘”compelling state interest”‘ . . . or ‘compelling need.'”  The court clarifies that “[o]nly obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”

The court reverses the Second District, Division One, Court of Appeal.  As to the privacy issue, it also disapproves a whopping 23 Court of Appeal opinions.

July 12, 2017

“9th Circ. May Steer Apple Bag Check Row To Calif. Justices”

Law360 [subscription] reports that one member of a Ninth Circuit panel said at oral argument this week “that the California Supreme Court should weigh in on whether Apple must pay a certified class of store employees for time spent checking their personal bags.”  Video of the oral argument is here.

This wouldn’t be the first time the Ninth Circuit has asked for the Supreme Court’s help on state employment law issues.  (E.g., see here and here.)  It also wouldn’t be the first time a judge’s oral argument statements preceded a Ninth Circuit request to the Supreme Court.  (E.g., here and here.)

July 12, 2017

Greenhouse gas, PAGA discovery opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Cleveland National Forest Foundation v. San Diego Association of Governments and Williams v. Superior Court, which were both argued on the early-May calendar.  (Briefs here; oral argument videos here.)  Lots of amicus briefs in both cases.

Cleveland National Forest is the second of three “environmental law week” cases.  (The opinion in the first was filed last week.)  It will decide whether the environmental impact report for a regional transportation plan must include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.).

Williams raises these questions:  (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed?  (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

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

July 10, 2017

Former Supreme Court Justice Janice Brown rumored to be taking senior status as a federal appeals court judge

The Wall Street Journal reports that Judge Janice Rogers Brown of the federal D.C. Circuit Court of Appeals will be assuming senior status, creating a vacancy on that court.  Before she was Judge Brown, she was Justice Brown of the California Supreme Court from 1996 to 2005.  Judge Brown was a potential U.S. Supreme Court pick.

July 10, 2017

Superior court protocol limiting detention of incompetent minors is not binding, but a properly adopted one could be

In In re Albert C., the Supreme Court today limits a limit that the Los Angeles County Superior Court tried to impose on the detention of minors found incompetent to stand trial.  The court’s unanimous opinion by Justice Goodwin Liu holds that “[l]ike adults, juveniles have a due process right to be free from indefinite commitment if found incompetent to stand trial” (an incompetent person must at some point be released or held under a civil commitment), but concludes that a blanket protocol adopted by the superior court limiting to 120 days the detention of incompetent minors does not define due process.  The opinion explains that “neither a statute nor a local protocol can supplant the duty and prerogative of courts to independently interpret constitutional principles.”

Just because this particular protocol didn’t establish a constitutional standard, however, doesn’t mean such a policy couldn’t be binding.  The court finds that, “[b]ecause the Protocol was not adopted pursuant to any mechanism vesting it with legal authority, a violation of the Protocol does not, in and of itself, constitute grounds for relief,” but also says, “A protocol, local rule, or state statute may adopt a detention policy that is more protective of a juvenile’s rights than” constitutional case law, which doesn’t “require[ ] any jurisdiction to detain an incompetent minor at all.”

The court affirms the Second District, Division Five, Court of Appeal, although it does disagree with one of the Court of Appeal’s conclusions.  It also disapproves a 2013 decision by Division Seven of the Second District.

July 9, 2017

When can Governor Brown name Justice Werdegar’s replacement?

It’s been four months since Justice Kathryn Werdegar announced her retirement.  There’s been speculation about whom Governor Brown will appoint to take Justice Werdegar’s seat, but not as much discussion about when an appointment will be made.

Will there be a replacement on the Supreme Court before the court’s next oral argument calendar, which will take place during the first full week of September?  Or will there be a new parade of pro tem justices from the Court of Appeal to temporarily fill the vacancy, as there was following Justice Joyce Kennard’s retirement three years ago?

A lot depends, of course, on when the Governor is ready to name the new justice.  But there’s also the issue of when he has the authority to make an appointment.

Justice Werdegar may have announced her retirement a while ago, but it will not be effective until the end of next month.  The constitution provides that “[t]he Governor shall fill vacancies in [the Supreme Court] by appointment” (emphasis added) and that the appointment “is effective when confirmed by the Commission on Judicial Appointments.”

There’s no vacancy now.  Can the Governor make — and the Commission confirm — an appointment to fill an impending vacancy?  If not, then Governor Brown will have to put his appointment on hold until after August 31, and the court will start its new term short one permanent justice.

However, an almost-40-year-old Court of Appeal opinion indicates that there’s no need to wait.  In that case, concerning a municipal court seat, the court held, “unless expressly forbidden by statute, the Governor is empowered to make an appointment to judicial office to fill an impending vacancy, provided he or she is still in office at the time vacancy occurs and the commission becomes effective.”  (Morrison v. Michael (1979) 98 Cal.App.3d 507, 514.)

It would be better to have a full-strength Supreme Court come September, and there doesn’t appear to be any legal impediment to Governor Brown making that happen.

July 7, 2017

Juvenile competency opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in In re Albert C., which was argued on the early-May calendar.  (Oral argument video here; briefs here.)

Albert C. raises these issues:  (1) Did the juvenile court violate minor’s due process rights by detaining him well past the 120-day limit established in the Los Angeles County Superior Court Juvenile Division’s “Amended Competency to Stand Trial Protocol” (Protocol), without evidence of progress toward attaining competency?  (2) Does a violation of the Protocol establish a presumption of a due process violation?

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

July 7, 2017

No conference held the week of July 3, 2017

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

July 7, 2017

“The Journey and Jurisprudence of California Supreme Court Justice Stanley Mosk”

The Orange County Bar Association is hosting a tribute on July 27 to the late California Supreme Court Justice Stanley Mosk.  They’ve lined up a great panel for the program:  Justice Laurence Rubin of the Second District, Division Eight, Court of Appeal, and, more significantly for the event, a former Justice Mosk law clerk; and Professor Gerald Uelmen of Santa Clara University School of Law, who co-authored a Mosk biography.

July 6, 2017

Waives, not waves, damage seawall

Back to its unanimous ways after an unusual spate of divided opinions (here, here, here, here, and here), the Supreme Court in Lynch v. California Coastal Commission today rules against owners of oceanfront properties who wanted to replace a storm-damaged seawall without having to comply with two conditions imposed by the California Coastal Commission.  The owners were granted a permit subject to the conditions and then completed construction while their court challenge to the conditions was pending.  The court’s 7-0 opinion by Justice Carol Corrigan holds that “the owners forfeited their challenge because they accepted the benefits the permit conferred.”

Disclosure:  the heading for this post is not quite right.  Besides the fact that “waive” probably isn’t an acceptable noun, there wasn’t really a waiver in this case.  The court’s opinion instructs that “the more accurate term to describe the effect of plaintiffs’ actions is equitable forfeiture” and it explains, “Although the distinctions between waiver, estoppel, and forfeiture can be significant, the terms are not always used with care.”  The heading is intentionally careless because it’s catchier that way.

The court affirms a 2-1 decision from the Fourth District, Division One, Court of Appeal.

July 5, 2017

Coastal development opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Lynch v. California Coastal Commission.  (Oral argument video here; briefs here.)   This will be the first decision in the early-May calendar cases.

Lynch is one of the three “environmental law week” cases.  It raises these questions:  (1) Did plaintiffs, who objected in writing and orally to certain conditions contained within a coastal development permit approved by defendant California Coastal Commission and who filed a petition for writ of mandate (Code Civ. Proc., § 1094.5) challenging those conditions, waive their right to challenge the conditions by subsequently executing and recording deed restrictions recognizing the existence of the conditions and constructing the project as approved?  (2) Did the permit condition allowing plaintiffs to construct a seawall on their property, but requiring them to apply for a new permit in 20 years or to remove the seawall, violate Public Resources Code section 30235 or the federal Constitution?  (3) Were plaintiffs required to obtain a permit to reconstruct the bottom portion of a bluff-to-beach staircase that had been destroyed by a series of winter storms, or was that portion of the project exempt from permitting requirements pursuant to Public Resources Code section 30610, subdivision (g)(1)?

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

July 3, 2017

What happens after review to opinions that have remained published pending review?

Thirteen months ago, a Supreme Court rules change meant that granting review in a case no longer automatically depublishes the case’s Court of Appeal 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 rule also provides that the loss of precedential effect might be only temporary.  After a Supreme Court decision, unless the court orders otherwise, “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.”  (Rule 8.1115(e)(2).)

In most cases, application of the post-review rule should be straightforward.  For example, a published Court of Appeal opinion in a grant-and-hold case that is consistent with the Supreme Court’s decision two months ago in the lead opinion has likely been resurrected to precedential status.

Some cases might get a bit tricky, however.  Take today’s decision in People v. Valencia.  The Supreme Court notes that its opinion “effectively overrules the majority decision” in a grant-and-hold case, but the court “assum[es], without deciding,” the accuracy of the majority decision on a subsidiary point.  So, apparently, although the Court of Appeal majority decision’s holding is no longer of value, lower courts and counsel will be able to cite the decision’s subsidiary point as precedent with the notation, “overruled on other grounds in People v. Valencia.”  Unless, of course, the Supreme Court affirmatively orders the Court of Appeal opinion depublished, which it still can do.  In any event, it’s a good reminder that, under the new rules, the impact of a Court of Appeal’s opinion — and of different parts of the opinion — in a review-granted case can change.

July 3, 2017

4-3 Supreme Court narrows resentencing opportunities under Three Strikes reform initiative

In People v. Valencia (consolidated with People v. Chaney), a 4-3 Supreme Court nixes the chances of two felons to reduce third-strike sentences imposed before California voters approved Proposition 36, the Three Strikes Reform Act of 2012.  The law allows for resentencing unless the superior court finds doing so “would pose an unreasonable risk of danger to public safety.”  Proposition 36 didn’t define the disqualifying “unreasonable risk,” but Proposition 47 — 2014’s Safe Neighborhoods and Schools Act — did, classifying it as an unreasonable risk of the future commission of eight specific types of serious felonies.  The court’s opinion by Chief Justice Tani Cantil-Sakauye holds the Proposition 47 definition doesn’t limit a superior court’s discretion to deny a sentence reduction under Proposition 36, even though Proposition 47 specifically provides that its definition is to be “used throughout this Code.”

This is another let’s-read-statutory-language-in-context opinion.  (See e.g., here and here.)  The court concludes that reading “used throughout this Code” expansively would be “inconsistent with Proposition 47’s uncodified findings, declarations, purpose, and intent.”  It says the voters who passed Proposition 47 couldn’t have intended the “unreasonable risk” definition to apply to Proposition 36, especially when neither the Attorney General nor the Legislative Analyst gave those voters a heads-up as to that possible effect.

There are three separate opinions.

Justice Leondra Kruger writes a concurring opinion, which is signed by Justices Ming Chin and Carol Corrigan, all three of whom sign the Chief Justice’s majority opinion.  Besides discussing additional statutory interpretation principles, Justice Kruger expresses concern about initiative drafters being able to sneak stuff past the voters, or, as she less colloquially puts it, “To give dispositive effect to an oblique reference to an entire statutory code, in the face of considerable evidence suggesting the intended scope of the statute is materially narrower, would undoubtedly encourage drafters in future cases to deploy similarly oblique references to hide the true scope of proposed legislation from the electorate.”  She also “recognize[s] the practical reality that voters are sometimes asked to vote on statutory language that is not drawn with the precision one might hope for.”

Justices Goodwin Liu and Justice Mariano-Florentino Cuéllar write their own dissents, and they sign each others opinions.  Justice Kathryn Werdegar signs both dissents, too.  Justice Liu says the court historically construed the pre-Proposition 36 Three Strikes law “in accordance with its plain meaning, . . . regardless of whether the text, history, or ballot materials addressed the particular application of the statute at issue” and the contrary way of interpreting Proposition 47 is a “turnabout [that] is as unorthodox in its methodology as it is unsettling in its implications for the initiative process and the limited role of courts in interpreting statutes.”  He says the majority opinion “crosses the line from statutory interpretation to judicial legislation.”  He is alarmed that the majority’s construction of the law depends in part on the assumption the voters didn’t know what the initiative language meant:  “If we can rewrite statutes on the ground that the voters were not aware of what they were enacting, there will be no end to the mischief that courts and litigants can inflict on the initiative process.”  Similarly, Justice Cuéllar states that courts should operate on the premise that “the electorate must take a considerable measure of responsibility in enacting complicated laws.”

The court affirms the Third and Fifth District Courts of Appeal.  It also “effectively overrules” a 2-1 2016 Sixth District opinion.

July 3, 2017

Use of dead boyfriend’s confession might void special circumstances murder conviction

In People v. Hopson, a divided Supreme Court today finds Sixth Amendment confrontation error in admitting as impeachment evidence against a murder defendant the confession of her boyfriend who committed suicide several weeks after confessing.  The court’s opinion by Justice Leondra Kruger concludes the constitution was violated because “an accomplice’s confession implicating the defendant was used as substantive evidence of her role in the crime, even though she had no opportunity to test his reliability through cross-examination.”

There is no reversal of the conviction and life-without-parole sentence, however.  At least not yet.  The court instead directs the Court of Appeal — which had found no constitutional impropriety — to determine whether the error was prejudicial, necessitating a new trial.

Chief Justice Tani Cantil-Sakauye (joined by Justice Kathryn Werdegar) dissents, contending that the defendant waived her confrontation right and that, under the majority opinion, “defendants would be shielded from incrimination by an accomplice’s confession to police while simultaneously being allowed to attack with impunity the credibility and character of that accomplice.”  The Chief Justice also concludes any error was harmless beyond a reasonable doubt.

Besides criticizing the dissent’s reasoning on the merits, the majority says that the dissent’s theory for admission of the confession “conducts the parties’ litigation for them” because the Attorney General never advanced the theory, and that there is no reason to deviate from the court’s practice of not “decid[ing] cases on grounds the parties have neither briefed nor argued.”  The dissent calls it irrelevant that the Attorney General didn’t brief the issue, because “it is defendant’s claim on appeal that the prosecutor used [the] confession for its truth, and it is her burden to prove the existence of such error.”

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

July 1, 2017

New Historical Society newsletter

The California Supreme Court Historical Society Spring/Summer 2017 newsletter is now available.  [Disclosure:  I’m on the Society’s board of directors.]  There’s lots of good stuff in this issue.

Besides a profile of the Society’s newest board member, newly re-titled Jorge Navarrette, you can read about The Infamous Case of People v. Hall, how Y.C. Hong Championed Chinese Inclusion, retiring Justice Kathryn Werdegar’s Singular Path to the Supreme Court, David S.Terry’s Writ of Habeas Corpus (see also here), United States Attorney Cecil Poole, UCLA Law School’s Riseborough Mural, how The Wasp Stings the Courts, a recent conference on the California Supreme Court (see also here), a Berkeley Law School celebration of the Society’s new Supreme Court history book (see also here for another book event), and, speaking of books, what Dean Erwin Chemerinsky thought of A Conservative’s View of Law Professors.

 

June 30, 2017

Supreme Court gets new CEO

Yes, the post heading is misleading.  There’s been no shakeup at the Supreme Court.  However, the Legislature has passed and the Governor has signed a bill that changes Jorge Navarrete‘s title from Clerk of the Supreme Court to Clerk/Executive Officer of the Supreme Court.  He will now be the court’s CEO, or, more accurately, the C/EO.  The legislation also changes the title of the equivalent position at the Court of Appeal from Clerk/Administrator of the Court of Appeal to the Clerk/Executive Officer of the Court of Appeal.

A bill analysis says the changes are necessary “to more accurately reflect the executive responsibilities of the Clerk/Administrator in the Courts of Appeal and the Clerk of the Supreme Court, including their roles in staffing, budget, resource allocations, and strategic direction.  Title changes identify these positions’ responsibility and accountability.”  The analysis also notes, however, that the legislation “presents a change in name only”; it “does not change the duties or responsibilities of these clerks.”

June 30, 2017

Prop. 47, confrontation right opinions filing Monday

As expected, the Supreme Court will file on Monday morning (no, July 3 is not a state holiday) its opinions in People v. Chaney and People v. Valencia (which are consolidated) and People v. Hopson, the last two undecided cases from the April calendar.

In the consolidated Chaney and Valencia cases, the court will decide whether 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”) applies retroactively to resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126).

Hopson raises the issue whether defendant’s right of confrontation under the Sixth Amendment was violated when the trial court permitted the prosecution to introduce out-of-court statements made by her deceased codefendant.

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

June 30, 2017

Summary of June 28, 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 June 28, 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

Jarman v. HCR ManorCare, S241431– Review Granted– June 28, 2017

Plaintiff, a patient at defendants’ health care facility,  alleged claims for violations of patient rights under Health and Safety Code section 1430 (section 1430), elder abuse, and negligence. The jury returned a verdict for the plaintiff and found malice, oppression, or fraud.  The trial court granted the defendants’ motion to strike the punitive damage claim, holding there was insufficient evidence to support the jury’s finding of malice, oppression or fraud.  The trial court entered judgment awarding $95,500 in statutory damages, $100,000 in general negligence damages, and $368,755 in statutory attorneys’ fees. In a published decision, Jarman v. HCR ManorCare (2017) 9 Cal.App.5th 807, the Court of Appeal, Fourth District, Division Three, affirmed in part but reversed with directions to conduct further proceedings to establish the amount of punitive damages.

This case presents the following issues: (1) Does Health and Safety Code section 1430, subdivision (b), authorize a maximum award of $500 per “cause of action” in a lawsuit against a skilled nursing facility for violation of specified rights or only $500 per lawsuit? (2) Does section 1430, subdivision (b), authorize an award of punitive damages in such an action?

Review Denied (with dissenting justices)

None.

Depublished

None.

June 29, 2017

4-3 Supreme Court strengthens same-judge guarantee for sentencing after plea agreement

In K.R. v. Superior Court, a divided Supreme Court today holds a plea bargaining defendant is entitled to be sentenced by the same judge who accepted the plea bargain, without having to show he or she subjectively intended that the same judge do both.

Normally, when the court interprets language, it is the language of a statute that is parsed.  In K.R., however, the majority and the dissenters spar extensively over the meaning of one of the court’s 1978 decisions.

The court’s K.R. opinion, by Justice Kathryn Werdegar, says it is reaffirming a rule stated in the prior decision that the same-judge principle is an implied term in all plea bargain agreements, despite contrary Court of Appeal interpretations of that decision over the years.  On the other hand, the dissent by Chief Justice Tani Cantil-Sakauye (joined by Justices Ming Chin and Carol Corrigan) concludes that the majority “misrepresents the [1978] opinion as having a plain meaning [and] ignores more than 25 years of established appellate court understanding of the decision.”  For good measure, the dissent also says that the court’s opinion “places our law out of step with every other jurisdiction to have considered the issue, and injects opportunities for gamesmanship and practical difficulties into our system of plea bargaining.”

The court reverses the Third District Court of Appeal.  It also disapproves a 2009 opinion by the First District, Division Five; a 2008 opinion by the First District, Division Four; a 1990 opinion by the Fourth District, Division One; a 1989 opinion by the Fifth District; 1988 and 1985 opinions by the Third District; and a 1985 opinion by the Fourth District, Division Two.

 

June 29, 2017

Electric bill fee that is transferred to city is not necessarily a tax subject to voter approval

In Jacks v. City of Santa Barbara, the Supreme Court today holds that money collected for the City of Santa Barbara by Southern California Edison from its customers is not necessarily a tax that must be approved by the voters.  The court’s opinion by Chief Justice Tani Cantil-Sakauye concludes that, to the extent the money is a franchise fee for Edison’s right to use City property, it’s not a tax, but only if “the charges bear a reasonable relationship to the value of the property interests.”

The opinion is not unanimous.  Justice Ming Chin dissents, concluding the fee is a tax because “[t]he electricity users upon whom the City imposes the charge, and who actually pay it, do not receive the franchise, any franchise rights, or any property interests.”  He says the majority’s “reasonable relationship” test is “vague, unprecedented, unworkable, and standardless.”

The court affirms in part, but mostly reverses the Second District, Division Six, Court of Appeal.  The Court of Appeal held the fee was a tax; that is reversed.  However, the Court of Appeal also held the City was not entitled to judgment on the pleadings; this is affirmed because, the Supreme Court decides, it still needs to be adjudicated whether the fee bears a reasonable relationship to the value of the franchise.

June 29, 2017

Documentary transfer tax upheld

In 926 North Ardmore Avenue, LLC v. County of Los Angeles, the Supreme Court today holds that, after an array of transactions moving interests in one building among various entities of various members of one family, one set of transactions allowed Los Angeles County to impose a documentary transfer tax.  The court’s opinion by Justice Carol Corrigan finds the trigger was that the latter transactions caused a “change in ownership” under the Revenue and Taxation Code.  The conclusion is reached by reading one section of that Code “in context,” something not recommended for the faint of heart.  The court says, “the critical factor in determining whether the documentary transfer tax may be imposed is whether there was a sale that resulted in a transfer of beneficial ownership of real property.”

The opinion is not unanimous.  Justice Leondra Kruger dissents.  She says, “neither the [Documentary Transfer Tax Act] itself, nor the federal statutes on which it was modeled, has before been held to apply to run-of-the-mill transfers of interests in legal entities that happen to own real estate,” and she would leave to the Legislature any such expansion of the Act.

The court affirms the Second District, Division Seven, Court of Appeal.  It also disapproves dictum in a 1985 decision by the Second District, Division Three.

June 29, 2017

Uncharacteristically, Supreme Court issues three divided opinions

The Supreme Court justices are typically a harmonious bunch.  Most of the court’s opinions are unanimous.  Not today.  The justices divided 4-3 on a criminal sentencing opinion and 6-1 on two tax decisions.  Justices Kathryn Werdegar, Goodwin Liu, and Mariano-Florentino Cuéllar are in the majority on all three cases.  Justice Ming Chin dissents in two.

Summaries of the three opinions will follow, but may be delayed because I’m going to a program this afternoon on the most significant of the court’s opinions in 2016-2017.

June 28, 2017

Supreme Court will not review cap-and-trade program

The Supreme Court today denied review of a divided Court of Appeal decision that upheld a cap-and-trade program created by the State Air Resources Board to reduce greenhouse gas emissions.  The case is California Chamber of Commerce v. State Air Resources Board.  No justice recorded a vote to grant review.  (Not all dissenting votes on petitions for review are publicly recorded.)  Chief Justice Tani Cantil-Sakauye was recused.

June 27, 2017

Juvenile delinquency opinion, two tax opinions filing Thursday

The Supreme Court today announced — a day earlier than usual — that it will file on Thursday morning its opinions in K.R. v. Superior Court, Jacks v. City of Santa Barbara, and 926 North Ardmore Avenue, LLC v. County of Los Angeles.

These cases are among the five still undecided matters that were argued on the April calendar, and, after Thursday, there will be only one more regular filing day within the 90-day deadline to issue opinions in April cases.  Thus, you can expect opinions in the two remaining April matters — People v. Chaney and People v. Valencia (consolidated Prop. 47 cases) and People v. Hopson (a Sixth Amendment confrontation case) — on Monday.

K.R. will answer this question:  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.)

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

In 926 Ardmore, the court will address whether Revenue and Taxation Code section 11911 authorizes 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.

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

June 26, 2017

Summary of June 21, 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 June 21, 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

Scholes v. Lambirth Trucking, S241825 – Review Granted – June 21, 2017

In this published opinion, Scholes v. Lambirth Trucking (2017) 10 Cal.App.5th 590, a fire from defendant’s storage site damaged plaintiff’s property. Plaintiff alleged negligent trespass, intentional trespass and strict liability. This case presents the following issue: Are the double damages provisions of Civil Code section 3346 applicable to negligently caused fire damage to trees?

Defendant demurred, arguing the plaintiff’s claims were barred by the statute of limitations and that the complaint failed to state a viable cause of action for intentional trespass or strict liability.  The trial court sustained the demurrer without leave to amend on statute of limitations grounds.  The Third District Court of Appeal affirmed, ruling consistent with its holding in Gould v. Madonna (1970) 5 Cal.App.3d 404, that double damages do not apply to fires negligently set.

Melamed v. Cedars-Sinai Medical Center, S241146 – Review Granted and Transferred to Court of Appeal – June 21, 2017

Plaintiff, a physician, operated on a 12-year-old patient, causing complications requiring corrective surgery. Defendant hospital suspended plaintiff who requested a peer review hearing challenging the suspension. Each administrative review upheld the suspension. Plaintiff filed suit against the hospital, its medical staff, and the doctors involved in the suspension decision. Defendants filed an anti-SLAPP motion. The trial court granted the motion and the Court of Appeal, Second District, Division One, affirmed in a published opinion, Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271,

The issues presented for review were: (1) whether the defendant made a prima facie showing that the challenged cause of action arose from a protected activity, here the medical staff’s peer review process, and (2) whether the plaintiff has shown a probability of prevailing on the claim. The Supreme Court granted review and transferred the matter back to the Court of Appeal for reconsideration in light of Park v. Board of Trustees of the California State University (2017) 2 Cal.5th 1057.

Scaccia v. Superior Court, S241695 – Review Granted and Transferred to Court of Appeal – June 21, 2017

Code of Civil Procedure section 639 (section 639) concerns the appointment of referees—including discovery referees—in civil actions.  Section 639, subdivision (d)(6)(B), provides: “In determining whether a party has established an inability to pay the referee’s fees under subparagraph (A), the court shall consider only the ability of the party, not the party’s counsel, to pay these fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider among other things, the estimated cost of the referral and the impact of the proposed fees on the party’s ability to proceed with the litigation.”  Subdivision (d)(3) states: “all appointments of referees pursuant to this section shall be by written order and shall include . . . the subject matter or matters included in the reference.”

In Scaccia v. Superior Court, C084225, the petitioner filed a writ petition to reverse the trial court’s appointment of a discovery referee under section 639 on the grounds that the petitioner is indigent.  The Third District Court of Appeal summarily denied the petition. The Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to vacate the denial of the writ petition, to issue an alternative writ, and “to reconsider the appropriate scope of the reference under Code of Civil Procedure section 639, subdivision (d)(3) and the parties’ ability to pay under Code of Civil Procedure section 639, subdivision (d)(6)(B).”

Review Denied (with dissenting justices)

None.

Depublished

In re Isabella M., S242008 – Review Denied and Depublished – June 21, 2017

In In re Isabella M. (2017) 10 Cal.App 5th 535, the alleged father of Isabella M., a minor, was incarcerated from the time of her birth until she was 20 months old. The juvenile court denied alleged father’s petition to adjust his parental status from alleged to presumed father and thereafter terminated his paternal rights. The Court of Appeal, Second District, Division Seven, affirmed.  The Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.

June 26, 2017

Non-employee physician at public hospital can be charged with criminal self-dealing

In People v. Superior Court (Sahlolbei), the Supreme Court today allows the Riverside County DA to proceed with the prosecution of a surgeon for allegedly pressuring a public hospital to hire another physician whose contract would benefit the surgeon.  Government Code section 1090 prohibits certain public “officers or employees” from being “financially interested in any contract made by them in their official capacity.”  The surgeon — and the Court of Appeal — said section 1090 doesn’t apply to him because he practices at the hospital as an independent contractor, not an employee.  The court’s unanimous opinion by Justice Goodwin Liu holds the distinction doesn’t matter in this case, concluding that, although not “all independent contractors are covered by section 1090,” the statute does apply “to independent contractors who can be said to have been entrusted with ‘”transact[ing] on behalf of the Government.”‘”

More specifically, the court finds no problem in exposing physicians at public hospitals to section 1090 liability.  The justices say they “are not convinced that the practice of medicine cannot bear the weight of conflicts of interest statutes.”

The court reverses a 2-1 decision from the Fourth District, Division Two, Court of Appeal.  It also disapproves a 2013 opinion by the Second District, Division One.

Sahlolbei was argued on the April calendar.  There are still five undecided cases from that calendar, and only two more regular filing days within the 90-day deadline to issue opinions in those cases.

June 22, 2017

Ninth Circuit asks for help on procedural issue arising in limited-civil debt-collection cases [UPDATED]

The Ninth Circuit today asks the Supreme Court to decide a California procedural issue that arises in limited civil cases, including debt collection actions.  The federal court says “an answer from the California Supreme Court will help simplify litigation procedures in these low value cases, which are responsible for the vast majority of civil filings in California. . . . . It will also provide guidance to California consumers, creditors, and debt collectors and purchasers who litigate thousands of debt collection cases each year.”  The issue is of importance in the Ninth Circuit case — Meza v. Portfolio Recovery Associates, LLC — which concerns whether the defendants misused a litigation procedure and thus violated the federal Fair Debt Collection Practices Act.

Under Code of Civil Procedure section 98, a party in a limited civil case can substitute a witness’s declaration for live testimony, but the declaration must, under certain circumstances, include “a current address of the affiant that is within 150 miles of the place of trial, and the affiant [must be] available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.”  In the collection action underlying the Meza case, the debt collector submitted the declaration of a person who lives more than 150 miles from the courthouse, but the declaration included the address of the debt collector’s attorneys, who were authorized to accept service of process on the witness’s behalf.

The question the Ninth Circuit poses is:  “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 Court of Appeals says that the only relevant case authority is from the appellate divisions of the California Superior Court, and those decisions are inconsistent.  (The court cites one unpublished opinion that is inconsistent with two published opinions.)

The Supreme Court likely will decide by the end of August — give or take — whether it will answer the Ninth Circuit’s question.  It probably will.

[June 26 update:  the court has docketed the Ninth Circuit’s request.]

June 22, 2017

Video of judicial elections program available

At last year’s State Bar meeting, the California Supreme Court Historical Society presented a program — “Thirty Years After a Hundred Year Flood:  Judicial Elections and the Administration of Justice” — on the occasion of the 30th anniversary of one of the most significant events in the court’s history:  the 1986 election at which three justices lost their seats.  The program panel included two of those justices — Joseph Grodin and Cruz Reynoso — and Dean Erwin Chemerinsky of the UC Irvine School of Law (soon to be dean of the UC Berkeley School of Law).

The Society has posted on its website the program materials and a video of the program.  The video is also on the Society’s YouTube channel.

[Disclosure:  I’m on the Society’s board of directors and I moderated the program.]

June 21, 2017

Justice Liu critical of Attorney General’s briefing

When the Supreme Court earlier this week affirmed the death penalty judgment in People v. Sivongxxay, Justices Goodwin Liu and Mariano-Florentino Cuéllar both dissented in part, asserting the penalty should be reversed because, they said, an inadequate jury trial waiver was prejudicial error.  The majority found the error to be harmless, based on a theory — Justice Liu’s separate opinion reports — first suggested by the court when it solicited supplemental briefing after oral argument.

The Attorney General’s supplemental brief endorsed the new theory, but Justice Liu takes the brief to task for the way it did so.  In a long parenthetical (Justice Liu doesn’t use footnotes), his opinion says in part, “I find it troubling that the Attorney General’s supplemental brief contends — at the eleventh hour, with no explanation for its belated epiphany — that our precedent ‘virtually compels’ the harmless error analysis in today’s opinion.  The absence of any explanation risks the perception that the Attorney General’s new contention is opportunistic or that his initial briefing, having missed a theory ‘virtually compel[led]’ by our precedent, was of questionable competence.  Neither does wonders for the government’s credibility.”

Justice Liu has expressed similar criticisms before.

June 19, 2017

SCOTUS reverses California Supreme Court personal jurisdiction decision

The U.S. Supreme Court today reverses the 4-3 California Supreme Court decision in Bristol-Myers Squibb Company v. Superior Court, where the state court held that 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.  [Disclosure:  Horvitz & Levy was co-counsel for defendant Bristol-Myers in the California Supreme Court.]

The 8-1 high court opinion is by Justice Samuel Alito.  It says that the state court’s opinion is “difficult to square with our precedents.”  Justice Sonia Sotomayor dissents, asserting “there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike.”

The California Supreme Court opinion was written by Chief Justice Tani Cantil-Sakauye and was signed by Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger.  Justice Kathryn Werdegar dissented, for herself and Justices Ming Chin and Carol Corrigan.

June 19, 2017

The New York Times interviews the Chief Justice

The California Today section of the New York Times includes excerpts of an interview with Chief Justice Tani Cantil-Sakauye.  From the introduction:  “While Ms. Cantil-Sakauye says she does not think of herself as political, she has not shown any signs of backing off from her criticisms of President Trump, calling his comments about the judiciary damaging.”  (See, e.g., here and here.)