December 4, 2015

No conference held the week of November 30, 2015

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

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December 3, 2015

Six cases on Supreme Court’s January calendar

The Supreme Court today announced its January calendar.  The court will hear argument in six cases, including one of the oldest civil cases on the court’s docket — Baltazar v. Forever 21, Inc.

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

Ardon v. City of Los Angeles:  (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act request waive those privileges and protections?  (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?
This case is being argued rather quickly.  The court granted review less than nine months ago and a response to an amicus curiae brief was filed just last month.

Kilby v. CVS Pharmacy, Inc.:  For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), “(1) Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?  (2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?  (3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?
The court is answering these questions at the request of the Ninth Circuit.  This summer, the court invited the Division of Labor Standards Enforcement to file an amicus curiae brief in the case.

Baltazar v. Forever 21, Inc.:  This is an un-hold case.  Review was originally granted almost three years ago, but briefing was deferred pending a decision in Wisdom v. Accentcare.  However, the court dismissed review in Wisdom after that case settled and the court then asked for briefing in Baltazar.  The Wisdom case raised the issue:  “Is an arbitration clause in an employment application that provides “I agree to submit to binding arbitration all disputes and claims arising out of the submission of this application” unenforceable as substantively unconscionable for lack of mutuality, or does the language create a mutual agreement to arbitrate all such disputes?  (See Roman v. Superior Court (2009) 172 Cal.App.4th 1462.)”

Desaulles v. Community Hospital of the Monterey Peninsula:  When plaintiff dismissed her action in exchange for the defendant’s payment of a monetary settlement, was she the prevailing party for purposes of an award of costs under Code of Civil Procedure section 1032, subdivision (a)(4), because she was “the party with a net monetary recovery,” or was defendant the prevailing party because it was “a defendant in whose favor a dismissal is entered”?

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

People v. Juarez:  Does Penal Code section 1387 require dismissal of a criminal complaint if two prior complaints have been dismissed but the third complaint charges that the identical criminal act violates a different section of the Penal Code than had the two previous complaints?

December 3, 2015

Supreme Court affirms death penalty in domestic violence murder case

In a unanimous opinion by Chief Justice Tani Cantil-Sakauye, the Supreme Court today affirms the death sentence of Micky Ray Cage, who was convicted of murdering his wife’s mother and teenage brother.  The case is People v. Cage.

 

December 3, 2015

Federal law doesn’t preempt state action for food mislabeled as organic

The Supreme Court today holds that California consumers can sue under state law for the mislabeling of foods as organic.  In Quesada v. Herb Thyme Farms, Inc., a unanimous opinion by Justice Kathryn Werdegar concludes that such an action — under the state’s Consumer Legal Remedies Act, unfair competition law, and false advertising law — is not preempted by the federal Organic Foods Production Act of 1990.  The court finds that Congress “confined the areas of state law expressly preempted to matters related to certifying production as organic, leaving untouched enforcement against abuse of the label ‘organic'” and that “state lawsuits alleging intentional organic mislabeling promote, rather than hinder, Congress’s purposes and objectives.”

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

December 2, 2015

Organic foods, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its first two opinions in cases argued on the October calendar.

In Quesada v. Herb Thyme Farms, Inc., the court will decide whether the Organic Foods Production Act of 1990 (7 U.S.C. § 6501 et seq.) preempts state consumer lawsuits alleging that a food product was falsely labeled “100% Organic” when it contained ingredients that were not certified organic under the California Organic Products Act of 2003 (Food & Agr. Code, § 46000 et seq.; Health & Saf. Code, § 110810 et seq.).

People v. Cage is an automatic appeal from a November 2003 judgment of death.

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

November 30, 2015

Supreme Court weighs in on state climate change standards

As world leaders open the crucial Paris Climate Change Conference, California’s Supreme Court today examines an environmental impact report’s analysis of a proposed massive land development project’s compliance with state greenhouse gas emission reduction goals.  In Center for Biological Diversity v. Department of Fish and Wildlife, the court concludes the “report employs a legally permissible criterion of significance — whether the project was consistent with meeting statewide emission reduction goals — but the report’s finding that the project’s emissions would not be significant under that criterion is not supported by a reasoned explanation based on substantial evidence.”  The court states that California’s mandate to substantially reduce future greenhouse gas emissions “is critically important to our environment and must be treated very seriously.”

The court also holds that mitigation measures in the report, adopted for the protection of a freshwater fish, are improper because the measures themselves constitute a prohibited taking of the fish, and that some comments on the report were timely made so as to exhaust administrative remedies.

The 5-2 opinion is written by Justice Kathryn Werdegar.  Justices Carol Corrigan files a concurring and dissenting opinion, disagreeing that the report’s emission-reduction findings were not supported by sufficient evidence.  Justice Ming Chin authors a dissenting opinion.  He agrees that the report used an appropriate methodology regarding greenhouse gas emissions and that administrative remedies were properly exhausted, but he disagrees with everything else.

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

November 30, 2015

Sheriff’s department — but not deputy sheriff — can be liable for not reporting child abuse allegations to child welfare agency

A sheriff’s department receiving a 911 report of suspected child abuse can be liable for not forwarding the report to the relevant child welfare agency, even though a deputy sheriff’s investigation of the report found no reason for further action; the deputy had no such reporting duty, however.  So holds the Supreme Court today in B.H. v. County of San Bernardino.

The court’s 6-1 opinion is authored by Justice Ming Chin.  Justice Goodwin Liu dissents in part, concluding that the sheriff’s deputy should have a reporting duty along with the sheriff’s department.

The court affirms the Fourth District, Division Two, Court of Appeal as to the sheriff’s deputy, but reverses that court as to the sheriff’s department.  Also, the Supreme Court disapproves in part a 1999 decision by the Second District, Division Seven, Court of Appeal.

November 25, 2015

Summary of November 24, 2015 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 Tuesday, November 24, 2015. 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

Connor v. First Student, S229428—Review Granted—November 24, 2015

The issue is whether the Investigative Consumer Reporting Agencies Act (ICRAA) (Civ. Code, § 1786 et seq.) is unconstitutionally vague as applied to background checks conducted on a company’s employees, because persons and entities subject to both that Act and the Consumer Credit Reporting Agencies Act (CCRAA) (Civ. Code, § 1785 et seq.) cannot determine which statute applies.

The Court of Appeal, Second District, Division Four, reversed the lower court’s summary judgment and held in a published decision, Connor v. First Student Inc. (2015) 239 Cal.App.4th 526, that the ICRAA is not unconstitutionally vague as applied to information that relates to both character and creditworthiness because there is nothing in either the ICRAA or the CCRAA that precludes application of both acts to such information.

McMillin Albany v. Superior Court (Van Tassell), S229762—Review Granted—November 24, 2015

This case presents the following issue: Does the Right to Repair Act (Civ. Code § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?

The Court of Appeal, Fifth District, granted petitioners’ writ of mandate in a published opinion, McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, compelling the trial court to vacate its order denying the motion to stay litigation until real parties complied with the statutory nonadversarial prelitigation procedures of the “Right to Repair Act,” which applies to construction defect litigation involving certain residential construction and entered a new order granting the stay as requested because real parties did not comply with the requirements of Chapter 4 in accommodating McMillin’s absolute right to attempt repairs.

Scher v. Burke, S230104—Review Granted—November 24, 2015

The case presents the following issue: Does Civil Code section 1009 preclude non-recreational use of noncoastal private property from ripening into an implied dedication of a public road?

The Court of Appeal, Second District, Division Three, held in a published decision, Scher v. Burke (2015) 240 Cal.App.4th 381, that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the effective date of that statute. Thus, the trial court erred in considering evidence about use of the subject roads after March 4, 1972 to support its finding that the roads were impliedly dedicated to public use.

Moose v. Superior Court (D.R. Horton Los Angeles Holding Company), S230342—Review Granted and Held—November 24, 2015

The Supreme Court granted review in this case after the Court of Appeal summarily denied a writ petition. Further action in this matter is deferred pending consideration and disposition of a related issue in McMillin Albany LLC v. Superior Court, S229762 (see Cal. rules of Court, rule 8.524 (c)), or pending further order of the court. McMillin presents the following issue: Does the Right to Repair Act (Civ. Code § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?

Review Denied (with dissenting justices)

None.

Depublished

None.

November 25, 2015

Environmental, child abuse reporting opinions filing Monday

When the Supreme Court returns from a Thanksgiving break on Monday, it will file its last two opinions for cases argued on the September calendar.

Center for Biological Diversity et al. v. Department of Fish and Wildlife raises these questions:  (1) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of “fully protected” species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?  (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report?  (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business as usual” baseline?

The court also invited the Attorney General, “or an appropriate state agency to be identified by the Attorney General,” to file an amicus curiae brief “expressing the State of California’s views, to the extent those views are not already articulated in the briefs of the Department of Fish and Wildlife, on the following question:  May a comparative analysis modeled on the methodology employed by the California Air Resources Board in its Climate Change Scoping Plan, which compared statewide emissions goals to a statewide ‘business as usual’ scenario, properly be used under CEQA to evaluate the significance of an individual proposed project’s greenhouse gas emissions?”  An amici brief was filed by the California Natural Resources Agency and the Governor’s Office of Planning and Research.

In B.H. v. County of San Bernardino, the court will address:  (1) Does Penal Code section 11166, subdivision (k), create a mandatory duty requiring a law enforcement agency to cross-report to the relevant social services agency whenever it receives a report of known or suspected child abuse?  (2) If so, when is that duty triggered?  (3) Does Penal Code section 11166, subdivision (a), apply to law enforcement agencies that receive initial reports of child abuse?  (4) If so, what standard should be applied to determine whether a follow-up report is required?

The court asked for additional briefing from the parties on these questions:  (1) Do the reporting requirements of Penal Code section 11166, subdivision (a), apply to law enforcement officers who are investigating allegations of child abuse made by third parties and received by a law enforcement agency?  (2) If not, should Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180 be disapproved?

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

November 19, 2015

Un-hold that case: briefing on Batson/Wheeler ordered

Occasionally, the Supreme Court will un-hold a case, that is it will ask for briefing in a matter that was originally taken as a grant-and-hold case.  It happened again yesterday, and the issue to be briefed and presumably decided is the hot button one of racial discrimination in jury selection.

Five months ago, the court granted review in People v. Enriquez, but ordered further action deferred pending disposition of related issues in People v. Elizalde and People v. Prunty.  After opinions were issued in Elizalde and Prunty (here and here, dealing with Miranda violations and gang enhancements, respectively), the usual procedure (see, e.g., here) would have been for the court to either transfer Enriquez back to the Court of Appeal for reconsideration in light of the Elizalde and Prunty decisions or to dismiss review and leave the Court of Appeal’s decision intact.  Instead, the court yesterday directed the parties to file briefs on the issue whether the Court of Appeal erred in upholding the trial court’s denial of defendants’ Batson/Wheeler motions.

November 18, 2015

Summary of November 11, 2015 conference report for civil cases

In its conference on Wednesday, November 11, 2015, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

November 11, 2015

Court of Appeal voices at the Supreme Court

When the Supreme Court is asked to review or depublish a Court of Appeal decision, the Court of Appeal’s input on the matter is usually limited to the reasoning expressed in that court’s opinion.  Occasionally, however, the Court of Appeal gets more involved, as illustrated by two recent examples.

In In re Elias, the Supreme Court denied requests to depublish a detailed opinion that found a Miranda violation concerning incriminating statements made by a 13-year-old.  (The admissibility of juveniles’ statements later gained further prominence when Justice Goodwin Liu wrote a rare dissent from the denial of a petition for review in a different case regarding that issue.)  Justice Carol Corrigan recorded a vote in favor of depublishing, which is unusual.  Really exceptional, however, was that the author of the Court of Appeal opinion — Presiding Justice Anthony Kline of the First District, Division Two — wrote a seven-page letter to the Supreme Court, on behalf of himself and the two justices who concurred in the opinion, opposing the depublication requests.  (Hat tip to The Marshall Project.)  Among other things, the letter responded to accusations in the depublication requests that the opinion had improperly relied in part on social science research.

The In re Elias letter was obviously a deliberate extra-opinion attempt by the Court of Appeal to influence the Supreme Court.  Sometimes, the influencing is of the more unintentional variety.  Consider People v. Superior Court (Morales), which involves the issue whether the superior court had jurisdiction to order various entities to preserve materials that might at a later date be included in a motion for post-conviction discovery for a habeas corpus petition in a death penalty case.  The Court of Appeal opinion holds there is no such jurisdiction, finding it is “not at liberty to ignore” a 1990 California Supreme Court decision on the subject.  The defendant’s petition for review claims that, since 1990, there have been important changes in the law governing post-conviction practice.

Of particular note, the petition for review attaches a transcript of the Court of Appeal oral argument.  In the transcript, one of the justices is quoted as telling counsel that the issue “[s]eems like something the Supremes might be interested in,” that the “problem” in the case is one “of their [the Supreme Court’s] creation,” and that he “always believe[s] in someone cleaning up their own mess.”  The justice probably didn’t expect or intend his oral argument comments to be conveyed to the Supreme Court, but the court did grant review, possibly to “clean[ ] up their own mess.”

November 9, 2015

No conference held the week of November 2, 2015

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

November 2, 2015

The case for publishing Justice Liu’s dissent

It turns out that Justice Goodwin Liu’s statement dissenting from the denial of a petition for review two weeks ago wasn’t the first one ever in California Supreme Court history, as we theorized at the time.  But, as far as we can tell, it’s the first one in over 50 years.  We have found five dissenting opinions from the denial of a hearing — now called review — from 1917 to 1958.  (California did not have an intermediate appellate court until 1905.)

The question now is:  how available will Justice Liu’s dissent be?  Possibly not very.  According to a court spokesperson, under current practice, the dissent will be noted in the court’s minutes, which appear in the official reports advance sheets but not in the bound volumes.  It can also be viewed on the court’s online docket for the case, In re Joseph H.  But court minutes and online dockets are rather obscure and not conducive to computer searches.  Also, the dissenting statement is not available on Westlaw, which means that it will be less accessible than the most routine unpublished Court of Appeal opinion.  And, if the dissenting statement is not officially published, rule 8.1115(a) makes it questionable whether it is even citeable to or by a California court.

Justice Liu’s dissent — and any future separate statements concerning the denial of a petition for review — deserve better.  Dissenting opinions in general are important.  They “speak[ ] to the rest of the court, to courts in other places, to higher courts, to Congress, to future generations.”  (Wald, The Rhetoric of Results and the Results of Rhetoric:  Judicial Writings (1995) 62 U. of Chi. L.Rev. 1371, 1412.)  They can also speak to the appellate bar, giving encouragement to raise an issue again in future petitions for review.  Without publication, however, a dissent’s speech is muffled.

There is precedent for publishing dissents from the denial of review.  The U.S. Supreme Court does it, sometimes memorably.  (See, e.g., Callins v. Collins (1994) 510 U.S. 1143, 1145 [114 S.Ct. 1127, 127 L.Ed.2d 435] (Blackmun, J.) [“From this day forward, I no longer shall tinker with the machinery of death”].)  So has the California Supreme Court; that’s how we found the five prior dissents.

One of those five earlier dissents can serve as Exhibit A in favor of a policy of publication.  In People v. Rochin, the Court of Appeal rejected a defendant’s challenge to the admission of evidence.  The Supreme Court denied a hearing, but Justices Jesse Carter and B. Rey Schauer filed detailed dissents, which are published following the Court of Appeal’s opinion.  (People v. Rochin (1950) 101 Cal.App.2d 140, 143-150.)  The U.S. Supreme Court granted certiorari and reversed in a landmark opinion that quoted from Justice Schauer’s dissent.  (Rochin v. California (1952) 342 U.S. 165, 167 [obtaining drugs from defendant by forcible stomach pumping violated Due Process].)

Not publishing dissents from denials of review might be current policy, but there’s good reason to change the policy or, more accurately, to change the policy back to what it was many years ago.  The court’s spokesperson said that “the court will in the coming weeks consider whether to adopt a policy under which such future matters might be published.”  During that consideration, the court might want to remember Rochin.

October 31, 2015

Possible initiatives could affect Supreme Court death penalty caseload

While the Supreme Court ponders whether to allow an advisory vote next year on a Citizens United ballot measure, groups are working to qualify two death penalty-related initiatives for that same election.  If either passed, there would likely be a dramatic change in the court’s workload.  They’re competing initiatives — one to eliminate the death penalty and the other to speed it up — and would thus have opposite effects.  Maura Dolan and Marisa Gerber report on them in today’s Los Angeles Times.

One proposed initiative would end the death penalty, convert all existing death sentences to life without parole, and give the Supreme Court the discretion to transfer all pending death penalty appeals and habeas corpus petitions to the Court of Appeal or superior court.  It is similar to an initiative that lost by about four percentage points three years ago.  It would necessarily open up a lot of room on the Supreme Court’s calendar by relieving the court of having to decide the automatic, direct death penalty appeals that take up a substantial portion of the court’s time.

The second proposed initiative, on the other hand, would inundate the Supreme Court with death penalty appeals, likely leaving the court with time for little else.  Among other provisions, the initiative would require that, once the prescribed new system is in place, “the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases” within five years of entry of judgment.  The court recently decided an appeal of an eight-year-old death penalty judgment and next week it will hear argument in an appeal of a six-year-old judgment.  But those appeals moved with unusual speed.  More typical are the three death penalty appeals the court will hear in December — with judgments that were entered 15, 23, and 24 years ago.

It’s possible that neither initiative will qualify for the 2016 ballot, however.  According to the Los Angeles Times article, “The pro-death penalty group said it has raised $1 million so far.  The opposition has raised $350,000.  An estimated $2 million is probably needed to gather the required signatures.”

October 30, 2015

Summary of October 28, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, October 28, 2015. 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

People v. Financial Casualty & Surety, S229446—Review Granted; Issues Limited—October 28, 2015

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

The Court of Appeal, Second District, Division Five, affirmed an order denying the defendant’s second motion to extend the appearance period under Penal Code section 1304 and held in a published decision, People v. Financial Casualty & Surety, Inc. (2015) 239 Cal.App.4th 440, that the defendant did not meet its burden under section 1305.4, which requires that a surety show “good cause” to receive an extension. The court also concluded that the tolling provision of section 1305, subdivision (h), did not apply.

People v. Accredited Surety and Casualty Co., S229271—Review Granted and Held—October 28, 2015

The Court of Appeal affirmed an order denying a motion to extend the period to exonerate a bail bond. The Supreme Court granted review and ordered briefing deferred pending its decision in People v. Financial Casualty & Surety Co., S229446. (See above for a description of the questions presented in the lead case.)

The Third District Court of Appeal held in a published decision, People v. Accredited Surety and Casualty Co., Inc., (2015) 239 Cal.App.4th 293, that because defendant knew, at the time of the hearing on the motion to extend, of facts supporting a motion to reconsider, the motion to reconsider contained no new or different facts and the trial court therefore properly denied the motion on that basis.

In re I.C., S229276—Review Granted—October 28, 2015

This juvenile dependency proceeding presents the following issues: (1) Did the juvenile court err by failing to determine whether the truthfulness of the minor as a hearsay declarant was “so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility” as required by In re Lucero L. (2000) 22 Cal.4th 1227? (2) Did the Court of Appeal err by affirming the trial court’s jurisdictional finding without reviewing the entire record for substantial evidence of the minor’s clear truthfulness?

The Court of Appeal, First District, Division Two, held in a published decision, In re I.C. (2015) 239 Cal.App.4th 304, that the plaintiff met its “substantial evidence” burden (Evid. Code § 411) to support the juvenile court’s finding under Welfare Code section 361, subdivision (c)(4), that the minor’s safety required separation from the defendant.

Universal Protection Service v. Superior Court (Parnow), S229442—Review Granted and Held—October 28, 2015

The Court of Appeal affirmed an order granting a petition to compel arbitration in a civil action. The Supreme Court granted review and ordered briefing deferred pending its decision in Sandquist v. Lebo Automotive, Inc., S220812, which presents the following issue: Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue?

The Third District Court of Appeal held in a published decision, Universal Protection Service, LP v. Superior Court (2015) 239 Cal.App.4th 697, that by agreeing to conduct their arbitration under the American Arbitration Association’s rules, the parties are bound by the arbitrator’s decision of the disputed issue.

Flannigan v. Onuldo, S229113—Review Granted and Held—October 28, 2015

The Court of Appeal affirmed the judgment in a civil action. The Supreme Court granted review and ordered briefing deferred pending its decision in Yvanova v. New Century Mortgage Corp., S218973, which presents the following issue: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 30, 2015

Two-day, seven-case December calendar in Los Angeles

After a six-month absence, the Supreme Court returns to Los Angeles for its December calendar.  Real property and death penalty cases are high on the agenda.

On December 1 and 2, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Garcia:  Did defendant commit two burglaries, or only one burglary, when he entered the business with the intent to commit a robbery, then took the robbery victim to the bathroom in the back of the business with the intent to rape her?
Uncommonly, this case got only the minimum four votes for review — Chief Justice Tani Cantil-Sakauye and Justices Kathryn Werdegar, Carol Corrigan, and Goodwin Liu.

People v. O’Malley:  This is an automatic appeal from a November 1991 judgment of death.  The court’s website does not list issues for such appeals.

People v. Casares:  This is an automatic appeal from a March 1992 judgment of death.  The court’s website does not list issues for such appeals.

Coker v. JP Morgan Chase Bank, N.A.:  (1) Do the anti-deficiency protections in Code of Civil Procedure section 580b apply to a borrower who engages in a “short sale” of real property when the lender approved the sale and reconveyed its deed of trust to facilitate the sale on the condition that the borrower remain liable for any outstanding balance on the loan following the sale?  (2) Does a borrower’s request that the creditor release its security interest in real property to facilitate a short sale result in a waiver of the protection of the “security first” rule set forth in Code of Civil Procedure section 726?

Yvanova v. New Century Mortgage Corporation:  In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?
Lots of amicus curiae briefs on this one.
Justice Ming Chin is recused.  Fourth District, Division One, Court of Appeal Justice Richard Huffman is sitting pro tem.

Gaines v. Fidelity National Title Insurance Company:  Was this action properly dismissed for the failure to bring it to trial within five years or should the period during which the action was stayed for purposes of mediation have been excluded under Code of Civil Procedure section 583.340, subdivision (b) or (c)?
A few months ago, the court ordered supplemental briefing on these questions:  1. Did the trial court’s April 3, 2008 order “striking the current Trial Date of September 22, 2008” (CT 279) constitute a stay of the “trial of the action” under Code of Civil Procedure, section 583.340, subdivision (b)?  2. What factors distinguish between a stay of trial and a continuance of trial for purposes Code of Civil Procedure, section 583.340, subdivision (b)?

People v. Peoples:  This is an automatic appeal from an August 2000 judgment of death.  The court’s website does not list issues for such appeals.

October 26, 2015

Summary of October 21, 2015 conference report for civil cases

In its conference on Wednesday, October 21, 2015, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

October 26, 2015

Supreme Court finds certain workers’ compensation benefits are limited to volunteer peace officers

In Larkin v. Workers’ Compensation Appeals Board, the Supreme Court today concludes that certain workers’ compensation benefits for volunteer police officers are not also available to regularly sworn, salaried officers.

The unanimous opinion by Justice Mariano-Florentino Cuéllar digs deep into the statutory construction toolbox, looking at “the text” of two statutes, “their place in the structure of the statutory scheme,” “the Workers’ Compensation Appeals Board’s . . . interpretation of the statute,” and “the legislative history governing the relevant statutory provisions” (including, uncommonly, an individual legislator’s letter to the Governor).

The opinion affirms the Third District Court of Appeal.

October 26, 2015

Supreme Court affirms death sentence for defendant charged 23 years after murder

In a unanimous opinion authored by Justice Ming Chin, the Supreme Court today affirms the death penalty judgment in People v. Cordova.  It wasn’t until 2002 that the defendant was charged with the 1979 murder that led to the death sentence, but the court rejects his arguments that investigators were negligent in not charging him sooner and that the precharging delay was prejudicial.  The court also finds unconvincing the defendant’s other contentions, many having to do with the DNA evidence that led to his arrest and conviction.

October 23, 2015

Police workers compensation, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two cases argued on the September calendar.

In Larkin v. Workers’ Compensation Appeals Board, the court will decide whether the benefits provided under Labor Code section 4458.2 extend both to volunteer peace officers and to regularly sworn, salaried officers.

People v. Cordova is an automatic appeal from a May 2007 judgment of death.

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

October 20, 2015

Dissenting statement from denial of review — first ever?

When the Supreme Court last week denied review in In re Joseph H., it made news because it’s a high-profile case (a 10-year-old shot and killed his neo-Nazi father) and it involves an important legal issue (whether a 10-year-old can knowingly waive his Miranda rights).  Also of interest is that three justices — Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger — recorded votes to grant review.  Record votes are not common, but they do happen with some regularity, although it’s rather rare for a petition for review to come up just one vote short of being granted.

What’s really noteworthy from a Supreme Court practice standpoint, however, is that Justice Liu not only recorded his vote, but also wrote a dissenting statement from the denial of review.  The statement — a long one, signed by Justice Cuéllar but not Justice Kruger — says that the case “raises an important legal issue that likely affects hundreds of children each year:  whether and, if so, how the concept of a voluntary, knowing, and intelligent Miranda waiver can be meaningfully applied to a child as young as 10 years old.”  The statement also suggests that the “Legislature may wish to take up this issue in light of this court’s decision not to do so here.”  (The entire statement can be viewed on the court’s docket.)

U.S. Supreme Court justices will sometimes write dissents from certiorari denials (see, e.g., here) and Ninth Circuit judges occasionally file “dissentals” from denials of en banc review.  However, to our knowledge, a dissenting California Supreme Court justice has never before stated reasons for wanting to grant a petition for review.  (Let us know if we’re wrong on that.)  The court’s Internal Operating Practices and Procedures (paragraph IV(I)) provides that, “[i]n any case in which the petition . . . is denied, a justice may request that his or her vote be recorded in the court minutes” (emphasis added), but it says nothing about dissenting statements.

Justice Liu and Chief Justice Tani Cantil-Sakauye both filed separate statements when the court issued an order to show cause and struck the anti-Citizens United proposition from the 2014 ballot.  But that was an interim order.  The court has heard oral argument and will soon file an opinion or opinions in the traditional manner.

The closest analogy to the dissenting statement that we know of is the court’s old — and long ago discontinued — practice of at times writing brief, substantive opinions when denying a hearing (now review).  In the opinions, published at the end of Court of Appeal decisions, the Supreme Court would sometimes disassociate itself from parts of the Court of Appeal decision.  (See, e.g., People v. Bunkers (1905) 2 Cal.App. 197, 210 [“the determination of the question as to whether one who gives a bribe can be an accomplice of the one who accepts the bribe is not essential to the decision in this case, and we are not to be understood as approving that portion of the opinion of the district court of appeal which deals with that question”].)  In at least one case, the court went so far as to disapprove an earlier Court of Appeal decision that conflicted with the Court of Appeal decision that was the subject of the petition for hearing.  (Millsap v. Alderson (1923) 63 Cal.App. 518, 532.)

Justice Liu’s statement in Joseph H. could signify an important shift in how the Supreme Court operates.  Before, a justice might record a dissenting vote to send a message to the appellate bar about the justice’s interest in an issue, but, because such a vote was not accompanied by any publicly available reasoning and was not widely noticed in any event, the message was a muted one.  Dissenting statements give justices a significant new option to shape the debate on compelling legal issues or to highlight issues that have yet to be generally regarded as compelling.

The court and the Reporter of Decisions might need to make some adjustments to accommodate this new judicial creature.  Will a dissenting statement be citable as persuasive precedent?  If so, will it be published in the Supreme Court’s official reports?  Will the court revise its Internal Operating Practices and Procedures to recognize the existence of a dissenting statement?  Might we also see concurring statements that explain the denial of review, as sometimes happens at the U.S. Supreme Court?

Another thing about Justice Liu’s dissenting statement — it apparently delayed the ruling on the petition for review.  Atypically, the order denying review was not issued after the court’s weekly Wednesday conference and thus did not appear on the court’s list of conference actions.  (That’s why we didn’t notice the dissenting statement right away.)  Instead, it was on Friday that the court denied review and filed Justice Liu’s statement, the last day to which the court had — and could have — extended its time to rule.

 

October 16, 2015

Summary of October 14, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, October 14, 2015. 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

Parrish v. Latham & Watkins, S228277—Review Granted—October 14, 2015

Petition for review after the Court of Appeal affirmed an order granting a special motion to strike in a civil action. This case presents the following issues: (1) Does the denial of defendant former employees’ motion for summary judgment in a prior 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 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 340.6?

The Court of Appeal, Second District, Division Three, affirmed the granting of an anti-SLAPP motion (Code Civ. Proc., § 425.16) and held in a published decision, Parrish v. Latham & Watkins (2015) 238 Cal.App.4th 81, that the denial of summary judgment for former employees in the underlying action barred their subsequent malicious prosecution action, finding the interim ruling on the merits established probable cause in the underlying action even though, ultimately, the employees successfully defended against the lawsuit and the trial court sanctioned the other side for bringing it in bad faith. The court also concluded, however, that the malicious prosecution lawsuit was timely because the one-year statute of limitations for some actions against attorneys (Code Civ. Proc., § 340.6) was inapplicable even though the defendants were the attorneys for the plaintiffs’ former adversary.

Bally Total Fitness of California v. Superior Court, S229011—Review Granted and Held—October 14, 2015

The Supreme Court granted review after the Court of Appeal summarily denied a petition for writ of mandate. Further action was ordered deferred pending consideration and disposition of a related issue in County of Los Angeles Board of Supervisors v. Superior Court, S226645, which presents the question whether invoices for legal services sent to the County of Los Angeles by outside counsel are within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted.

Newark Unified School District v. Superior Court, S229112—Review Granted and Held—October 14, 2015

The Supreme Court granted review after the Court of Appeal granted a petition for a peremptory writ of mandate. The Court ordered briefing deferred pending decision in Ardon v. City of Los Angeles, S223876, which presents the following issues: (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act request waive those privileges and protections? (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?

The Court of Appeal, First District, Division One, held in a published decision, Newark Unified School District v. Superior Court (2015) 239 Cal.App.4th 33, that the inadvertent release of documents under the Public Records Act does not waive the attorney-client privilege, concluding that waiver as a result of an inadvertent release was not contemplated by the Legislature when it enacted Government Code section 6254.5.

Review Denied (with dissenting justices)

None.

Depublished

None.

October 15, 2015

Supreme Court approves retrial on lesser related offense

In a unanimous opinion authored by Justice Ming Chin, the Supreme Court today holds that a defendant can be retried on the lesser related offense of arson of property despite a finding of a lack of evidence to support his conviction for arson of an inhabited structure.  In People v. Goolsby, the court reverses the Court of Appeal, Fourth District, Division Two, which had divided 2-1 on the issue whether the defendant could be retried.  The eight-page opinion finds only no statutory bar to a retrial; it leaves to the Court of Appeal in the first instance to determine whether double-jeopardy considerations might lead to a different result.  It also includes a footnote puzzling over the way the prosecution amended its charging document, saying that “[t]he problem in this case would not have arisen under the original information.”

October 14, 2015

Lesser-offense opinion filing tomorrow; first opinion in seven weeks

The expected annual drought in Supreme Court opinions ends tomorrow morning when the court will file its decision in People v. Goolsby, which was argued on the September calendar.  It’s been seven weeks since the court last filed an opinion.

Goolsby raises the issue whether the Court of Appeal erred in holding that Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 prohibited retrying defendant on a lesser related offense, when the prosecution had not formally charged him with the lesser offense but the jury was instructed on it without objection?

Shortly after granting review, the court asked the parties to also brief these questions:  (1) Do the jury verdict and Court of Appeal opinion establish that defendant is guilty of violating Penal Code section 451, subdivision (b), which governs arson of “an inhabited structure or inhabited property?”  (2) If so, should defendant’s conviction for violating Penal Code section 451, subdivision (b), be affirmed?

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

October 12, 2015

Supplemental briefing in the newspaper

A law professor who submitted an amicus curiae brief in Howard Jarvis Taxpayers Association v. Padilla, which was argued last week, writes in today’s Daily Journal [subscription] about what he calls “[a]n interesting and perplexing problem:  What does an amicus do when the amicus brief is called out by a justice during oral arguments, and the justice is incorrect?”

It’s strictly a rhetorical question, however, because the professor isn’t interested in discussing a Supreme Court practice issue.  Rather, the column is in effect a supplemental, post-argument amicus brief that the court would almost certainly never accept if the amicus were operating within the rules.  It gives a lengthy explanation why the professor believes that the justice who “called out” the amicus (unnamed in the column, but it was Justice Goodwin Liu) was incorrect in stating that the amicus brief “cited the wrong revision” of two reports by the California Constitution Revision Commission.  The column’s substance contains argument that the professor himself admits had been omitted from the amicus brief — “the amicus considered adding an explanatory note in an already overly long brief.”  If the column’s intent to evade the rules were not transparent enough already, it concludes, “Hopefully, justices read newspapers.”

Rule 8.520(f)(7) allows parties to answer an amicus brief.  The Daily Journal might have an analogous rule permitting parties to respond to amicus briefs masquerading as newspaper columns.

October 11, 2015

No conference held the week of October 5, 2015

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

October 7, 2015

Video of yesterday morning’s arguments available [UPDATED]

The California Channel televised yesterday morning’s Supreme Court arguments.  If you missed it live, you can watch the video.

[October 8 Update:  A video of just the argument in Howard Jarvis Taxpayers Association v. Padilla is available on You Tube.]

October 2, 2015

Summary of September 23 and 30, 2015 conference reports for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conferences on September 16 and 30, 2015. 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

There were no outright grants of review. One case did result in a grant-and-transfer for the Court of Appeal to consider on its merits a petition for writ of review following a ruling by the Workers’ Compensation Appeals Board.

Review Denied (with dissenting justices)

None.

Depublished

Cosentino v. Fuller, S227157—Depublished Court of Appeal Opinion—September 23, 2015

The Reporter of Decisions was directed not to publish in the Official Appellate Reports the opinion in Cosentino v. Fuller (2015) 237 Cal.App.4th 790, in which the Court of Appeal, Fourth District, Division Three, held that sovereign immunity afforded to Indian tribes applies only when the claims against tribal officials are based on actions the officials took in their official capacity and within the scope of their official authority. Holding the defendants’ actions—revoking the plaintiff’s gaming license without cause and in retaliation against him for acting as an informant for the Department of Justice—exceeded the scope of their authority as gaming commission officials, the Court of Appeal reversed the trial court’s order granting the defendants’ motion to dismiss.

October 2, 2015

Tuesday’s Supreme Court arguments will be televised

The California Channel will broadcast the three oral arguments on Tuesday morning of the Supreme Court’s October calendar.  The first argument is in Howard Jarvis Taxpayers Association v. Padilla, the case to decide if the Legislature can put a measure on the ballot asking voters to give their advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision.

Anti-Citizens United demonstrators are being urged to “pack the hearing room.”  But now they can watch at home, and they need not surreptitiously record the argument, as demonstrators have done at the United States Supreme Court.

October 2, 2015

Five cases on Supreme Court’s November calendar in Sacramento

The Supreme Court today announced its November calendar, which will be held in Sacramento.  On November 3, the court will hear the following cases (with the issue presented as stated on the court’s website):

Monterey Peninsula Water Management District v. California Public Utilities Commission:  Does the Public Utilities Commission have the authority to review and regulate a user fee imposed by a local government entity that is collected through the bills of a regulated public utility?

People v. Safety National Casualty Insurance Co.:  May Penal Code section 977, subdivision (b)(1), be utilized to determine whether a proceeding at which a defendant charged with a felony failed to appear was a proceeding at which the defendant was “lawfully required” to appear for purposes of forfeiting bail under Penal Code section 1305, subdivision (a)(4)?

People v. Arroyo:  May the criminal prosecution of a juvenile offender under Welfare and Institutions Code section 707, subdivision (d), be commenced by grand jury indictment or only by the filing of an information after a preliminary hearing?

People v. Masters:  This is an automatic appeal from a July 1990 judgment of death.  The court’s website does not list issues for such appeals.
Yes, the judgment on appeal is over 25 years old.  Briefing in the case — comprising more than 800 pages — was completed almost 12 years ago.

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

September 30, 2015

Big crowd expected for Citizens United argument

There will likely be lots of people attending next week’s argument of Howard Jarvis Taxpayers Association v. Padilla, the case to decide whether the Legislature can ask the voters to give their advisory opinion — through an initiative on the ballot — whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision.  The California Clean Money Action Fund is encouraging its supporters to attend a pre-argument rally outside the court and to then “pack the hearing room” for the purpose of, as an email announcement states, “show[ing] the justices how many Californians demand our right to vote on Prop 49.”

Although they might not be joining the crowd at the court, legislators will probably also be keenly interested in the argument.

It’s good to remember that this case has nothing to do with the merits of Citizens United.  Rather, the issue is the Legislature’s power under the state constitution to place on the ballot an initiative that asks for the voters’ nonbinding opinion on a topic of public importance.  It’s likely at least some members of the California Supreme Court agree that Citizens United was wrongly decided, but that doesn’t mean they believe Prop. 49 was a proper use of the Legislature’s initiative authority.

September 25, 2015

“High court could put Citizens United on ballot”

John Roemer previews in today’s Daily Journal [subscription] the October 6 argument in Howard Jarvis Taxpayers Association v. Padilla, the case to decide whether the Legislature can ask the voters to give their advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision.  The article quotes Rick Hasen, UC Irvine law professor and Horvitz & Levy former lawyer and current consultant.

September 25, 2015

“Calif. High Court Proposal Would End Depublication Practice”

Horvitz & Levy’s Jessica Di Palma writes for Law360 [subscription] about the Supreme Court’s power to order Court of Appeal opinions republished after review is granted and about the rule proposal that could make the power obsolete.

The piece’s headline — not written by Jessica — is a bit misleading.  The court is not proposing doing away with its power to depublish opinions; rather, the rule change would eliminate only the automatic depublication effect of an order granting review.

September 25, 2015

Two recorded votes regarding depublication orders

At the Supreme Court’s Wednesday conference this week, Justice Carol Corrigan twice disagreed with the court’s use of its (de)publication powers.  In People v. Allen, the Supreme Court depublished the Court of Appeal’s opinion that rejected a defendant’s Batson/Wheeler challenge (a Supreme Court hot button issue), but Justice Corrigan recorded a vote to keep the opinion on the books.  Conversely, in In re Elias, the court denied requests to depublish an opinion that found a Miranda violation, but Justice Corrigan recorded a vote to depublish.  (Justices do not always have their dissenting votes at conference publicly recorded.)

As noted, the Supreme Court also on Wednesday depublished an opinion in a civil case.  There was no recorded vote on that order, nor on three other cases in which the court denied depublication requests.

September 25, 2015

Summary of September 23, 2015 conference report for civil cases

The following is a summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, September 23, 2015.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

None.

Review Denied (with dissenting justices)

None.

Depublished

Cosentino v. Fuller, S227157—Court of Appeal Opinion Depublished—September 23, 2015

The Reporter of Decisions was directed not to publish in the Official Appellate Reports the opinion in Cosentino v. Fuller (2015) 237 Cal.App.4th 790, in which the Court of Appeal, Fourth District, Division Three, held that sovereign immunity afforded to Indian tribes applies only when the claims against tribal officials are based on actions the officials took in their official capacity and within the scope of their official authority.  Finding that the defendants’ actions — revoking the plaintiff’s gaming license without cause and in retaliation against him for acting as an informant for the Department of Justice — exceeded the scope of their authority as gaming commission officials, the Court of Appeal reversed the trial court’s decision to grant the defendant’s motion to dismiss.

September 23, 2015

Supreme Court again turns down constitutional attack on MICRA

Reconsidering the constitutionality of Civil Code section 3333.2 — the limit on noneconomic damages in healthcare professional negligence cases enacted as part of the 1975 Medical Injury Compensation Reform Act (MICRA) — seemed a possible Supreme Court agenda item after Justices Mariano-Florentino Cuéllar and Leondra Kruger took the bench in January.  Today, however, it appears the issue is not on the court’s to-do list.

Without recorded dissent (Justice Kathryn Werdegar was absent and did not participate), the court at its weekly conference denied review in Chan v. Curran, in which the First District, Division One, Court of Appeal had rejected a constitutional challenge, concluding that “the legitimate debate over the wisdom of MICRA’s noneconomic damages cap remains a matter for the Legislature and state electorate.”

In February, the court passed up another opportunity to reevaluate its 30-year-old precedent upholding the MICRA damage cap.  That action, and today’s, make it less likely than it once was that the court as presently constituted will ever revisit the issue.

September 18, 2015

Summary of September 16, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, September 16, 2015. 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

Castro v. IndyMac INDX Mortgage Loan Trust 2005-AR21, S227876—Review Granted and Held—September 16, 2015

The court ordered briefing deferred pending decision in Yvanova v. New Century Mortgage Corp., S218973, which presents the following issue: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?

The Court of Appeal, Fourth District, Division Two, held in an unpublished decision, Castro v. IndyMac INDX Mortgage Loan Trust 2005-AR21 (June 9, 2015, S227876) 2015 WL 3562455 [nonpub. opn.], that the plaintiff lacked standing to challenge the assignment of a promissory note and deed of trust on his home because the transfer did not change his obligation to pay the note.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 17, 2015

The Supreme Court wants the United States to be its friend

The Supreme Court yesterday issued an invitation to the United States to file an amicus curiae brief in a case involving the federal Indian Child Welfare Act.  The issue in the case — In re Abbigail A. — is whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code section 224.1, subdivision (a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment.  The issue about which the court would like the federal government’s opinion is whether those court rules are preempted to the extent they purport to require California courts to apply the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) in child custody proceedings involving a minor who is not an “Indian child” as defined in ICWA.  (See 25 U.S.C. § 1903(4); cf. id., §§ 1902 & 1921.)

The Supreme Court solicits amicus briefs occasionally.  When it does so, as in Abbigail A., it usually addresses the request to a governmental entity, like when it asked for a brief from the state Division of Labor Standards Enforcement about suitable employee seating regulations or when it asked the United States to chime in about the effect of federal law on whether to grant a law license to an undocumented immigrant.

September 17, 2015

From the Supreme Court to Nepal

Out now is “Olga’s Promise:  One Woman’s Commitment to the Children of Nepal.”  The memoir’s author is endorsed by former President Jimmy OlgaCarter:  “Olga Murray, at 90, has been a tireless crusader for the freedom and dignity of thousands of young girls in Nepal consigned to indentured servitude.  Her work has helped to provide them with access to education and the chance for a decent life.”

So, why is this relevant to a California Supreme Court blog?  Because Olga Murray was a lawyer at the court for 37 years, working mostly for the late Justice Stanley Mosk.

September 15, 2015

SCOTUS asked to review Supreme Court affordable housing decision

Howard Mintz reports in today’s San Jose Mercury News that the California Building Industry Association has filed a certiorari petition asking the U.S. Supreme Court to hear the Association’s challenge to a San Jose ordinance that requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price affordable to low or moderate income households.  In California Building Industry Association v. City of San Jose, the California Supreme Court three months ago held the enactment did not offend the takings clause of the federal and state constitutions.

September 11, 2015

Summary of September 9, 2015 conference report for civil cases

In its conference on Wednesday, September 9, 2015, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

September 10, 2015

Howard Bashman offers some practice tips for appellate lawyers

Pennsylvania appellate lawyer and nationally known appellate blogger Howard Bashman recently offered some sage advice on brief writing and oral argument in The Legal Intelligencer [subscription required]. Bashman writes that now, more than ever, the briefs are key to success on appeal. Oral argument is secondary because, even when it is available, “[y]ou cannot expect to rescue an appeal at oral argument that you have already lost on the briefs.”

Among Bashman’s advice on brief-writing is this nugget: “Submitting a brief that is credible, reliable and subtly persuasive is in my experience the best way to earn or maintain the trust of the decision makers and also the most likely way to cause them to conclude that your side should prevail.” Bashman goes on to explain why the contrary approach does not work: “The more that an advocate needs to shout, exaggerate, or declare in bold, italicized and underlined text just how right he or she is and how wrong the other side happens to be, the less likely a neutral decision maker will find the presentation persuasive. Indeed, as counterintuitive as it may sometimes seem, the more egregiously incorrect a trial court’s ruling or an adversary’s argument is, the less strident one should be in order to usefully and persuasively demonstrate the errors at hand.”

We could not agree more.

September 8, 2015

“High court hints at new stance on death penalty”

John Roemer reports in today’s Daily Journal [subscription] about the Supreme Court’s decision in People v. Seumanu, where the court revisited the issue whether delay in implementing the state’s death penalty law renders the law unconstitutional.  Although a federal district court had struck down a death sentence on that ground, the Supreme Court (again) rejected the argument.  However, the Supreme Court did so in a way that the article says “represents a sea change for a court that has solidly backed the death penalty ever since 1987, when Chief Justice Rose Bird and two colleagues were ousted by voters for opposing capital punishment.”  (Link added.)  The court wrote that, despite past adverse decisions on the delay claim, “doctrine can evolve[,] . . . especially . . . when interpreting the Eighth Amendment, which was ratified in 1791,” and that the claim is more appropriately presented in a habeas corpus proceeding than in the Seumanu direct automatic appeal.

Roemer has reported before about changes in the court’s death penalty jurisprudence, and the court has been the target of criticism for recent death sentence reversals.  One possible reason for any shift might be the constraints placed on the federal courts in reviewing Supreme Court decisions, which increase the likelihood that the state court will have the last word on life-and-death issues.

September 7, 2015

“From the bench, an ‘impotent silence’.”

Maura Dolan has an important report on the front page of Sunday’s Los Angeles Times about a federal law — the 1996 Antiterrorism and Effective Death Penalty Act — and the U.S. Supreme Court’s interpretations of the law that “have robbed federal judges of much of their power to overturn convictions obtained in state court, where the vast majority of criminal defendants are tried.”

The article quotes law review articles by two Ninth Circuit judges — Alex Kozinski and Stephen Reinhardt — critical of the resulting injustices.  Judge Kozinski says that federal judges “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted” and he calls for repeal of the law that is “cruel, unjust and unnecessary [and] that effectively removes federal judges as safeguards against miscarriages of justice.”  Similarly, Judge Reinhardt argues that “[t]he collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era,” and he criticizes the U.S. Supreme Court’s interpretations of the legislation for creating “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession — even with the Chief Justice calling balls and strikes.”  (Link added.)

Restrictions on federal habeas review have given state court criminal decisions — including those of the California Supreme Court — greater finality.  In June, for example, the U.S. Supreme Court held the Ninth Circuit had improperly granted habeas relief for a prisoner whose death sentence the California high court had affirmed.  Because “the safety net [of federal habeas review] is largely gone,” Dolan writes, “some state judges are calling for closer examination of criminal cases,” and she cites Justice Goodwin Liu as one who “has been trying to push his colleagues to examine trial mistakes more carefully.  He has complained in dissents that the California court is out of the norm in upholding so many criminal convictions tainted by legal errors at trial and possible racial bias in jury selection.”  (Links added.)

Equally disturbing is one reason given for limiting the federal courts’ powers.  The article reports that a representative of a “law-and-order group[ ]” supportive of the current state of the law believes “[t]he California Supreme Court should have the last word because the justices serve at the will of the voters” and it quotes the representative as saying, “We can’t get rid of Reinhardt.  We got rid of Rose Bird,” referring to the 1986 purge of three justices from the California Supreme Court.

Such attempts to intimidate state court judges who — unlike their federal counterparts — stand for election, are a threat to judicial independence.  But, ironically, they also bolster the argument, made recently by at least one death row prisoner, that state court death sentences and affirmances are invalid because the impartiality of those courts’ judges is compromised by their fear of being voted out of office if they rule in favor of a capital defendant.  The next brief including that claim could well include a section heading saying simply, “‘We can’t get rid of Reinhardt.  We got rid of Rose Bird.'”

September 5, 2015

“Chief Justice Dips Toe in Bar Bill Talks”

Cheryl Miller reports for The Recorder [subscription] that “[s]tate lawmakers amended the annual bar dues bill yet again on Friday as Chief Justice Tani Cantil-Sakauye jumped into the fray over the legislation that continues to evolve in the final days of the” legislative session.  The article reminds us, especially as Labor Day approaches, that the Supreme Court justices in general, and the Chief Justice in particular, have many non-case-related tasks in their job descriptions.

September 4, 2015

Nine cases on the Supreme Court’s October calendar

The Supreme Court today announced its October calendar.  As in some past Octobers (here and here), part of the calendar is devoted to a special student outreach session.  Instead of traveling to a law school as in past special sessions, however, the court is simply moving downstairs — to the auditorium in its building — to accommodate the students for the first three arguments.

As already noted, one of the October cases will be the one challenging the Legislature’s authority to put on the ballot an initiative asking the voters’ non-binding opinion whether the U.S. Constitution should be amended to overrule the U.S. Supreme Court’s Citizens United decision.

On October 6 and 7, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Howard Jarvis Taxpayers Association v. Padilla:  This case involves the validity of proposed Proposition 49 for the November 2014 General Election — specifically, whether the Legislature had the authority to place a non-binding measure on the ballot seeking the views of the electorate.  (And see here, here, here, here, and here.)

Gillette Company v. Franchise Tax Board:  Were multistate taxpayers required to apportion business income according to the formula set forth in Revenue and Taxation Code section 25128 as amended in 1993 or could they elect to apportion income according to the formula set forth in former Revenue and Taxation Code section 38006 pursuant to the adoption of the Multistate Tax Compact in 1974?
This case has attracted several amicus curiae briefs, including one on behalf of 18 states and the District of Columbia.
Third District Court of Appeal Justice William Murray is sitting pro tem in place of Justice Ming Chin.

Hampton v. County of San Diego:  Does a public entity establish the second element of design immunity under Government Code section 830.6 — discretionary approval of design plans — as a matter of law by presenting evidence that its design plans were approved by an employee with the discretion to do so, even if the plaintiff presents evidence that the design at issue violated the public entity’s own standards?

People v. Mendoza:  This is an automatic appeal from a May 2006 judgment of death.  The court’s website does not list issues for such appeals.

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

California Building Industry Association v. Bay Area Air Quality Management District:  Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

Quesada v. Herb Thyme Farms, Inc.:  Does the Organic Foods Production Act of 1990 (7 U.S.C. § 6501 et seq.) preempt state consumer lawsuits alleging that a food product was falsely labeled “100% Organic” when it contained ingredients that were not certified organic under the California Organic Products Act of 2003 (Food & Agr. Code, § 46000 et seq.; Health & Saf. Code, § 110810 et seq.)?

People v. Stevens:  May an expert’s testimony in support of a defendant’s commitment under the Mentally Disordered Offender Act (Pen. Code § 2960 et seq.) that the defendant used force or violence in committing the commitment offense (Pen. Code § 2962, subd. (e)(P)) and that he received treatment for at least 90 days in the year before being paroled (Pen. Code § 2962, subd. (c)) be based entirely on hearsay?

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

September 4, 2015

Professors’ annual article in the California Lawyer offers a fascinating retrospective on the Court’s last year

As they have done each year for several years, in this month’s California Lawyer magazine, Santa Clara University law professors Gerald Uelmen and Kyle Graham assess the California Supreme Court’s performance during the previous fiscal year (July 1, 2014 to June 30, 2015

In that period, they report, the Court decided 73 cases with signed majority opinions, and issue two per curiam opinions, for a total of 75.  That is a significant drop from last year, when the Court decided 89 cases.  Indeed, Uelmen and Graham observe, this is the lowest number of opinions the Court has issued since fiscal 1987-1988, the year after the divisive 1986 retention election, when the Court was in the process of transitioning from Chief Justice Rose Bird to Chief Justice Malcolm Lucas.  No doubt the professors are correct when they observe that the process of replacing Justices Baxter and Kennard with Justices Mariano-Florentino Cuéllar and Leondra Kruger “took its toll on productivity.”

The Court’s overall degree of unanimity was high again in fiscal 2014-2015, as it generally has been since Chief Justice Cantil-Sakauye took the helm.  The Court decided more than half its cases this year (65 percent) with Court of Appeal justices sitting pro tem.  Uelmen and Graham report that most of those decisions were unanimous, with just seven dissenting votes from Justice Liu, eight from Justice Werdegar, two from Justice Baxter, one from Justice Corrigan, and six from the various justices pro tem.  This tide of unanimity only increased after Justices Cuéllar and Kruger joined the Court.  Of the 26 opinions authored in fiscal 2014-2015 after they joined, all were unanimous except for two solo dissents by Justice Ming Chin.

Two particular facts that Uelmen and Graham have noted stand out.  First, the Chief sided with the majority in every single case decided in fiscal 2014-2015.  Second, much like in previous years, only four cases were decided by 4-3 votes.  Taken together, these facts say much about the Chief’s view of the proper role of a Chief Justice as a consensus builder and a leader.  It also highlights the degree to which she took to heart Chief Justice George’s advice when she assumed her post back in 2010 (for comparison, check out this 2010 post regarding how Chief Justice George handled the decision in In re Marriage Cases (2008) 43 Cal.4th 757).

Examining the justices’ dissent rates, other interesting facts jump out.  For example, Justice Goodwin Liu continued to pen a fair number of dissents, dissenting in 9.1 percent of cases.  This once again made him second among the justices in total dissents.  But despite Justice Liu’s willingness to part ways with the Court’s majority, it was Justice Kathryn Werdegar who filled the top spot previously held by retired Justice Joyce Kennard; Justice Werdegar hit double digits, dissenting in 10.7 percent of cases.

Last year, in view of the retirements of Justices Kennard and Baxter, Professors Uelmen and Graham observed that Governor Brown had “the opportunity to reshape the high court  with a less conservative majority.”  They predicted “[t]he coming year will see the emergence of a dramatically different California Supreme Court.”  This year, they have sharpened that prediction, forecasting a new (liberal) majority will emerge in 4-3 cases, comprised of Justices Werdegar, Liu, Cuéllar, and Kruger.  That may well be true, but it was not revealed in fiscal 2014-2015.  As Uelmen and Graham note, “[t]he court’s modest calendar from January to June” did not give the new justices much opportunity to cut their judicial teeth.

Yet the roadblock to confirming this prediction is not any perceived unwillingness on the part of the new justices to develop and apply their judicial philosophies.  The problem, it seems,  lies elsewhere, with Uelmen’s and Graham’s adherence to their usual practice of limiting their analysis to the fiscal year cut-off of June 30 (an approach that allows them to make use of the substantial fiscal year data compiled by the Judicial Council). For example, the decisions issued after Justices Cuéllar and Kruger joined the Court in January—but especially those issued in August (see this post)—suggest that Justice Chin might be on his way to becoming one of the Court’s leading dissenters. Likewise, the Court’s August opinions in People v. Prunty, People v. Blackburn and People v. Tran broke the Chief Justice’s long streak of siding with the majority in every case. Are these signs of a major shift on the Court? Has the new majority that Uelmen and Graham have predicted begun to coalesce? Only time will tell.

The attention-grabbing developments in the Court’s jurisprudence in August, it seems to us, counsel a change in approach for future installments of Uelmen’s and Graham’s annual article.  Rather than tracking the Court’s performance from one fiscal year to the next, it makes more sense to track the Court’s performance from September 1 to August 31, which are the dates the Court itself uses as the start and end of its judicial year.  By August 31, the Court typically has issued opinions in all cases argued that year.

September 3, 2015

Anti-Citizens United initiative case to be argued in October

Howard Jarvis Taxpayers Association v. Padilla — the case to decide whether the Legislature can ask the voters to give their advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision — will be argued before the California Supreme Court next month.  The Legislature had placed on the 2014 ballot an initiative requesting that input from the voters, but, with election deadlines imminent, the Supreme Court removed it, saying the proposition’s validity was uncertain and holding out the possibility of the initiative appearing on a future ballot if the court ultimately determines it is valid.  Now, after full briefing, the court is set — one way or the other — to remove the uncertainty about the validity.

Five justices voted a year ago to remove (at least temporarily) the initiative — Justices Marvin Baxter, Kathryn Werdegar, Ming Chin, Carol Corrigan, and Goodwin Liu.  Justice Liu filed a separate statement leaving little doubt that he then believed the voters should never get a crack at opining about Citizens United through the ballot box.  Chief Justice Tani Cantil-Sakauye was the lone dissenter, suggesting the court should defer to the Legislature’s decision to survey the electorate.  There was one vacancy on the court at the time.

In the year since the court’s order, Justice Baxter has retired and Justices Mariano-Florentino Cuéllar and Leondra Kruger have joined the court.  But the personnel change won’t save the initiative if Justices Werdegar, Chin, Corrigan, and Liu — who voted to temporarily strike the initiative from the ballot — conclusively decide that the Legislature exceeded its authority.

The court has not yet posted its October calendar — that could happen tomorrow — but the docket for the Howard Jarvis Taxpayers Association case today shows that the case will be argued on October 6 in San Francisco.

September 3, 2015

No conference held the week of August 31, 2015

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