August 8, 2014

No conference held the week of August 4, 2014

The Court held no conference this week.  The court normally does not have its Wednesday conference during the first week of the month.  Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

August 6, 2014

Supreme Court heads back to the courtroom for its September calendar [UPDATED x2]

Following a 3-month break, the Supreme Court will return to hear oral arguments after Labor Day.  Of course, the “break” refers only to the time the court has been deprived of hearing scintillating expositions on the law from us lawyers.  Since the last argument in early June, the court has issued 24 opinions and ruled on hundreds of petitions for review, habeas corpus, and writ relief.oral argument

There are four criminal cases and one civil case on the September calendar.  And five more Court of Appeal justices will be sitting on the court by assignment, bringing to 34 the number of cases with pro tems since Justice Kennard left the court in April.

On September 3, in San Francisco, the court will hear the following cases (with the issue(s) presented as stated on the court’s website):

Riverside County Sheriff’s Department v. Stiglitz:  Does the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff’s department have the authority to grant a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531?  In April, the court asked the parties for supplemental briefing on these issues:  (1) Assuming that a motion for discovery of officer personnel records may be filed in an administrative proceeding (Evid. Code, § 1043, subd. (a)), and a hearing officer has authority to determine that the motion states good cause for discovery (Evid. Code, § 1043, subd. (b)(3)), is there any existing statutory mechanism that would allow the matter to be transferred to the superior court for an in camera review of the records by a judicial officer (Evid. Code, § 1045, subd. (b))?  (2) If no existing statutory mechanism applies, do we have the authority to create such a transfer mechanism?  (With a pro tem to be named later.)

People v. Eroshevich:  (1) If a trial court issues a ruling equivalent to an acquittal after a jury has entered a guilty verdict and the Court of Appeal reverses the trial court’s ruling on appeal, does the trial court’s erroneous acquittal nevertheless bar retrial under principles of double jeopardy if, on remand, the defendant renews an earlier motion for a new trial?  (2) In such circumstances, is the Court of Appeal permitted to direct a trial court to dismiss charges and acquit a defendant if the trial court decides to grant the defendant’s motion for a new trial under Penal Code section 1181?  (With a pro tem to be named later.)

Teal v. Superior Court:   Did defendant have the right to appeal the trial court’s denial of his petition to recall his sentence under Penal Code section 1170.126, part of the Three Strikes Reform Act of 2012, when the trial court held he did not meet the threshold eligibility requirements for resentencing?  (Third District Court of Appeal Justice Ronald Robie is the pro tem.)

People v. Gonzalez:  Was defendant properly convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person? (See People v. Craig (1941) 17 Cal.2d 453.)  (First District, Division Five, Justice Henry Needham, Jr., is the pro tem.)

People v. Adams:  [This is an automatic appeal from a July 2003 judgment of death. The court's website does not list issues for such appeals.]  (Second District, Division Six, Justice Kenneth Yegan is the pro tem.)

[August 13 update:  Second District, Division Four, Justice Thomas Willhite, Jr., has been assigned as the pro tem for Riverside County Sheriff's Department v. Stiglitz.  No word yet on the pro tem for People v. Eroshevich.]

[August 19 update:  the court's first amended calendar shows that the pro tem for People v. Eroshevich is Fifth District Justice Dennis Cornell.]

August 6, 2014

CEQA/election law opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court.  In the TJSBA case, which was argued on the court’s late-May calendar, the court will address these issues:  (1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter-sponsored initiative under Elections Code section 9214, subdivision (a)?  (2) Is the adoption of an ordinance enacting a voter-sponsored initiative under Elections Code section 9214, subdivision (a), a “ministerial project” exempt from CEQA under Public Resources Code section 21080, subdivision (b)(1)?

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

August 4, 2014

Citizens United writ petition: Supreme Court requests expedited preliminary briefing

About the writ petition that was filed Friday in the Supreme Court asking for the removal of the anti-Citizens United ballot measure:  the court today asked for expedited preliminary briefing.  Instead of the normal 10-day period, the court asked  for a preliminary opposition by this Wednesday at 4:00 p.m.  The petitioners will have until Friday at 4:00 p.m. to reply.

August 4, 2014

Disagreeable pro tems

When the Ninth Circuit asks the Supreme Court to decide a question of California law, it must formally promise to accept the Supreme Court’s decision.  Court of Appeal justices who sit on the Supreme Court by assignment are under no similar constraints to be agreeable, as has been demonstrated recently.

Today, the Supreme Court filed three opinions.  Two of them were 5-2 decisions and the pro tem justices were dissenters in both.  In People v. Capistrano, the court affirmed a death judgment.  Justice Liu penned a 30-page dissent, which was joined by Fifth District Court of Appeal Justice Rosendo Peña, Jr.  In Gregory v. Cott, an assumption of the risk case, it was the pro tem justice — Justice Laurence Rubin of the Second District, Division Eight – who authored the dissenting opinion; Justice Werdegar signed on.

Less than two weeks ago, in People v. Whitmer, the court decided by a 6-1 vote that a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed according to a single overarching scheme.  The lone dissenter there was the pro tem, Sixth District Presiding Justice Conrad Rushing, who wrote a 31-page separate opinion.

Since early May, after Justice Kennard retired and left a still-unfilled vacancy on the court, a different Court of Appeal justice has sat pro tem on 29 cases.  Opinions have issued in 17 of those cases.  Except for Capistrano, Gregory, and Whitmer, all have been unanimous decisions.

There is no institutional problem when a pro tem justice dissents.  What can be damaging is a 4-3 decision with a pro tem in the majority.  When that happens, there will be the suspicion that the case’s outcome was determined by which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.

August 4, 2014

Overly agreeable Ninth Circuit jumps the gun

When the Ninth Circuit asks the California Supreme Court to decide a question of California law, the Ninth Circuit is required to affirmatively state that it “will accept the [Supreme Court's] decision.”  (Rule 8.548(b)(2).)  After the Supreme Court’s most recent answer of a Ninth Circuit question — in Peabody v. Time Warner Cable, Inc. – the federal appeals court not only accepted the decision, it did so too quickly.

Following an answer of a Ninth Circuit question, the Supreme Court clerk “must notify that court and the parties when the decision is final.”  (Rule 8.548(f)(6).)  Decisions are typically final no sooner than 30 days after the Supreme Court files its opinion, and the clerk sends a finality letter soon after that, as he did, for example, in Verdugo v. Target Corporation.

In Peabody, the Supreme Court filed its opinion on July 14.  Just 17 days later, however, the Ninth Circuit issued a memorandum remanding the case to the district court for reconsideration consistent with the Supreme Court’s decision.  However, the Supreme Court clerk’s finality letter probably won’t issue until the end of next week.

Nobody has filed a rehearing petition in Peabody and the Supreme Court’s decision is very unlikely to change.  But still, things could get messy if there were a change after the Ninth Circuit had already ruled based on the original decision.

August 1, 2014

Challenge to anti-Citizens United ballot measure before the Supreme Court

It’s not quite a staple for the Supreme Court table, but challenges to election initiatives do occasionally land on the docket.  The most recent example is an original writ petition filed Friday to take Proposition 49 off this November’s ballot.

Proposition 49 was placed on the ballot by the Legislature’s passage of SB 1272  and Governor Brown allowing it to become law without his signature.  If approved, the ballot measure would encourage — in a strictly advisory and nonbinding way — enactment of a constitutional amendment to overturn the United States Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission (2010) 558 U.S. 310.  The initiative asks the voters to answer this question:  “Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?”

Last week, opponents of Proposition 49 filed a writ petition – Howard Jarvis Taxpayers Association v. Bowen — in the Third District Court of Appeal to block a vote on the initiative.  This Thursday, the court denied the writ petition by a 2-1 vote.  The dissenter, Presiding Justice Vance Raye, believes “Proposition 49 is clearly invalid and thus review prior to the election is required.”  The next day, the opponents filed a new writ petition — not a petition for review — in the Supreme Court.

According to the docket, the Court of Appeal writ petition informed of an August 11 printing deadline, which probably refers to the date when the Secretary of State’s office must send the voter information guide to the state printer.  Presumably, the Supreme Court writ petition mentions the same deadline.  Under those circumstances, the Supreme Court will likely take some action next week.

August 1, 2014

Jurors behaving badly in death penalty cases

Yesterday, the Supreme Court reversed a death penalty judgment because of jury misconduct, the second time it did so within a month.  In yesterday’s decision — People v. Hensley — the court found prejudicial misconduct during the penalty phase of the trial when a juror consulted his pastor during deliberations.  A little over three weeks earlier, in People v. Weatherton, the court concluded a juror’s prejudgment of the case had impermissibly infected the guilt phase.  Both opinions were unanimous and authored by Justice Corrigan.

The Hensley court distinguished a 10-year-old, 4-3 Supreme Court decision — People v. Danks (2004) 32 Cal.4th 269 — in which the court had affirmed a death judgment despite evidence that two jurors had consulted their pastors.  The Daily Journal’s Emily Green reports today [subscription required] that the defense attorney in the Danks case is not happy.  Counsel is quoted as saying that the error in Danks was “more egregious” than in Hensley and that, “I’m not minimizing the error [in Hensley], but I think this is complete hypocrisy.”  Justices Baxter, Werdegar, and Chin were in the majority in both Hensley and Danks.

According to Green’s article, before Weatherton, the Supreme Court had not reversed a death judgment in two years.

August 1, 2014

Assumption of the risk, two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Gregory v. CottPeople v. Capistrano, and People v. Carrasco.  Gregory and Capistrano were argued on the court’s early-May calendar and are the last from that session awaiting decision.  Carrasco was argued on the late-May calendar.

In Gregory, the court will decide whether the doctrine of primary assumption of the risk bars the complaint for damages brought by an in-home caregiver against an Alzheimer’s patient and her husband for injuries the caregiver received when the patient lunged at her.

Capistrano is an automatic appeal from a January 1998 judgment of death.  Carrasco is an automatic appeal from a February 1999 judgment of death.

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

July 31, 2014

Summary of July 30, 2014 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, July 30, 2014.  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

Grupp v. DHL Express, S218754—Review Granted & Held—July 30, 2014

The plaintiff, on behalf of the State of California, alleged that defendant DHL Express charged the State for airplane fuel when packages were ground-shipped, improperly charged the state a diesel fuel surcharge for ground deliveries, and fraudulently represented its routes and expenses.  The plaintiff sought damages under the False Claims Act (Gov. Code, § 12651, subd. (a)(1), (2) & (3)).  The trial court granted DHL’s motion for judgment on the pleadings and dismissed the action.

The Court of Appeal, Second Appellate District, Division Two, held in a published opinion that plaintiff’s action was preempted by the federal Airline Deregulation Act of 1978 (49 U.S.C. § 41713(b)(1)) (Deregulation Act) and Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501(c)(1)) (FAAAA) because those statutes preempt any state law affecting the price, route, or service of an air or motor carrier.

The Supreme Court granted review and ordered briefing deferred pending consideration and disposition of a related issue in People ex rel. Harris v. Pac Anchor Transportation, Inc., S194388, which was decided on July 28, 2014.  In Harris, the Court concluded that the FAAAA did not preempt the People’s Unfair Competition Law action against the defendant trucking company for alleged violation of state labor and insurance laws.

In re Transient Occupancy Tax Cases, S218400—Review Granted—July 30, 2014

The trial court concluded that under the plain language of San Diego’s tax on transients ordinance (San Diego Mun. Code, § 35.0101, subd. (a) (TOT)), online travel companies do not have TOT obligations or liability.  The ordnance provides:  “For the privilege of Occupancy in any Hotel located in the City of San Diego, each Transient is subject to and shall pay a tax in the amount of six percent [ ] of the Rent charged by the [hotel proprietor].” The ordinance defines a “transient” as a person who “exercises Occupancy, or is entitled to Occupancy, . . . for a period of less than one [ ] month.” (San Diego Mun. Code, § 35.0102.)

The Court of Appeal, Fourth District, Division One, affirmed based on the ordinance’s plain language.  It concluded the only persons potentially liable under the TOT are transients and hotel operators.

Review Denied (with dissenting justices)

Thieriot v. Wrapnews, S218835—Review Denied [Werdegar, J., voting for review]—July 30, 2014

This anti-SLAPP case presented the following issues:  (1) whether the plaintiff filed a complaint based on protected activity, and (2) whether the plaintiff demonstrated a probability of prevailing.  The defendant, an online publication, published an article stating that the plaintiff, the executive producer of a documentary, had filmed the documentary in Mexico without government authority and then fled the country with the movie footage and equipment.  The plaintiff sued for defamation and false light invasion of privacy, alleging that the article’s allegations were false.

The trial court granted the anti-SLAPP motion and dismissed the complaint, ruling that, in publishing the article, the defendant was exercising its First Amendment right to free speech and that the plaintiff failed to meet her burden.  The Court of Appeal, Second Appellate District, Division Four, reversed in an unpublished opinion, holding the plaintiff presented sufficient evidence to show a probability of prevailing.



July 31, 2014

Governor says Latino descent a plus, lack of judicial experience not a negative in Cuéllar nomination

A reporter asked Governor Brown at a recent press conference whether it was a factor in his choice of Professor Mariano-Florentino Cuéllar for the Supreme Court that Cuéllar is Latino.  She also asked whether the governor was concerned about Cuéllar’s lack of judicial experience.  Brown answered yes to the former and no to the latter.

The Governor said he is “not unaware of the diversity of California and the growing importance of people” of Latin American descent.  “When 50 percent of the kids [in] kindergarten through 12th grade are of Latin descent,” Brown continued, “it’s important that they see in all the positions of power people who[m] they identify with.”  He also said that, in advance of his trip to Mexico, he was “very glad” that he “was able to appoint a Mexican immigrant.”

The Governor was quick to add that Cuéllar “is a very accomplished individual” and praised him as a “brilliant” and “very even-tempered person.”  Brown said he read the first and last chapters of Cuéllar’s Ph.D. dissertation and was very impressed by it.  Also, noting Cuéllar’s law school alma mater, which is the same as Justice Goodwin Liu’s, Brown joked that he has “yet to appoint a non-Yale graduate to the Supreme Court” during his second stint as governor.

Besides the Yale law degree, Cuéllar shares with Liu a non-judicial background.  Brown said that Cuéllar not having judicial experience is of no concern to him.  “Neither did Earl Warren, nor Chief Justice Roger Traynor,” the Governor said, “nor did [William O.] Douglas, nor did [Hugo] Black.”  (Not to be too picky, but Black did serve briefly and part time as a police court magistrate in his early 20′s.)

July 31, 2014

Cuéllar confirmation hearing set for August 28

On Thursday, August 28, 2014, the Commission on Judicial Appointments will hold a hearing on Governor Brown’s nomination of Professor Mariano-Florentino Cuéllar to the California Supreme Court.  The Commission members are Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, and soon-to-retire Second District Court of Appeal Presiding Justice Joan Dempsey Klein.

After that hearing, which is scheduled for 9:00 a.m., the Commission will evaluate three Court of Appeal nominations.  (They’re all nominations, rather than appointments, because all will fill positions with terms expiring this January.  Also, because they are nominations, we believe that these confirmation hearings all must be held after August 15 and before September 15.  At least, that’s how we read the state constitution.)

The hearing on Cuéllar’s nomination is likely to be televised on the California Channel; the hearings for Chief Justice Cantil-Sakauye and Justice Liu were.

July 30, 2014

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Hensley, an automatic appeal from an October 1995 judgment of death.  Hensley was argued on the early-May calendar.

Besides Hensley, two other cases from the early-May calendar do not have opinions yet — Gregory v. Cott and People v. Capistrano.  To comply with the 90-day rule, the court will file those opinions on Monday.

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

July 25, 2014

UCL/FAAAA preemption opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People ex rel. Harris v. Pac Anchor Transportation, Inc.  The case, which was argued on the late-May calendar, raises the issue whether an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), that is based on a trucking company’s alleged violation of state labor and insurance laws, is “related to the price, route, or service” of the company and, therefore, preempted by the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501).

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


July 24, 2014

Summary of July 23, 2014 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, July 23, 2014.  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

DKN Holdings v. Faerber, S218597—Review Granted, Issues Limited—July 23, 2014

The lessor of a commercial property brought an action against three co-leasees for past due rents.  The lessor dismissed without prejudice two of the parties and received a $3 million judgment against the third party which remains unsatisfied.  The lease specified all lessees were “jointly and severally responsible.”  The lessor then brought the present action against the other two lessees for the unpaid rent.  The trial court sustained the two lessees’ demurrers without leave to amend.

In a published opinion, DKN Holdings LLC v. Faerber (2014) 225 Cal.App.4th 1115, the Court of Appeal, Fourth District, Division Two, affirmed.  It held “the complaint does not and cannot state a cause of action against [the lessees] for monies due under the lease, because [the lessor’s] claims against [the lessees] in the present action are barred by the claim preclusion aspect of the res judicata doctrine.”

In granting review the Supreme Court limited the issues to the following: (1) Whether parties that are jointly and severally liable on an obligation can be sued in separate actions, and (2) whether the opinion of the Court of Appeal conflicts with the opinion of this court in Williams v. Reed (1957) 48 Cal.2d 57.

People v. Safety National Casualty Insurance Co., S218712—Review Granted—July 23, 2014

Safety National Casualty Company executed a bail bond on behalf of Eshaddai Bent in the amount of $25,000.  When Bent failed to personally appear at a pretrial conference, the trial court ordered the bail amount forfeited. Safety National moved to vacate the forfeiture, and the trial court denied that motion.

In a published opinion, People v. Safety National Casualty Insurance Co. (2014) 225 Cal.App.4th 438, the Court of Appeal, Second District, Division Eight, reversed, ordering the trial court to vacate the bond forfeiture. The Court of Appeal held: (1) the statement “bail will stand” did not equate to an order for the defendant to appear at the next hearing; (2) the conference in question was not a “readiness” conference which requires the defendant’s presence under California Rules of Court, Rule 4.112; and (3) case law did not require the defendant’s presence under Penal Code section 977. With the defendant not being required to attend by law or by court order, the Court of Appeal determined the order forfeiting the bond amount was improper, and should be vacated.

The questions presented are whether the trial court abused its discretion in ordering the bond amount forfeited, or whether the forfeiture was proper in light of the defendant’s absence at the pretrial conference.

deSaulles v. Community Hospital of the Monterey Peninsula, S219236—Review Granted—July 23, 2014

Plaintiff, an employee of the defendant hospital, brought suit alleging seven causes of action.  The parties entered a settlement agreement where the defendant paid $23,500 in exchange for dismissal with prejudice of two of plaintiff’s claims.  As to her remaining causes of action, the trial court granted summary adjudication in favor of defendant as to one, and then ruled in defendant’s favor on the remainder.  After entry of judgment, both parties moved for costs as the “prevailing party” under Code of Civil Procedure section 1032. The trial court ruled the defendant was the prevailing party, granting its motion for $12,731.92 in costs, and denying the plaintiff’s motion.

In a published opinion, deSaulles v. Community Hospital of Monterey Peninsula (2014) 225 Cal.App.4th 1427, the Sixth District Court of Appeal reversed, holding that “since the parties’ settlement was silent regarding costs, [the defendant’s] payment of $23,500 triggered mandatory costs as a ‘net monetary recovery’ under the plain language of the statute.”

The question presented is whether an award of costs to either party as the “prevailing party” was proper, given the settlement award to plaintiff despite judgment in favor of defendant on all the remaining claims.

Review Denied (with dissenting justices)

Imburgia v. DIRECTV, S218686—Review Denied [Baxter, J., voting for review]—July 23, 2014

The plaintiff filed a class action against DIRECTV on a variety of grounds, alleging DIRECTV was improperly charging its customers early termination fees. DIRECTV moved to stay or dismiss the action, decertify the class, and compel arbitration based on the arbitration provision in its consumer agreement. The trial court denied DIRECTV’s motion.

In a published opinion, Imburgia v. DIRECTV, Inc. (2014) 225 Cal.App.4th 338, the Court of Appeal, Second District, Division One, affirmed the trial court’s ruling holding that “the parties’ entire arbitration agreement is unenforceable, pursuant to the agreement’s express terms, because the law of plaintiffs’ state would find the class action waiver unenforceable.”

The question presented was whether the motion to compel arbitration was properly denied based on the parties’ contract and prevailing law.



July 23, 2014

Sentencing, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in two criminal law cases, both of which were argued on the early-May calendar.

In People v. Whitmer, the court is faced with the issue whether the defendant was properly sentenced on multiple counts of grand theft or whether his multiple takings constituted a single offense under People v. Bailey (1961) 55 Cal.2d 514.

People v. Boyce is an automatic appeal from a September 2000 judgment of death.

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

July 22, 2014

Stanford law professor Mariano-Florentino Cuéllar nominated to Supreme Court [UPDATED]

Governor Brown this morning announced the nomination of Mariano-Florentino Cuéllar to the Supreme Court.  Cuéllar is a law professor at Stanford.  His was among the names being mentioned for the court.  [UPDATE:  Cuéllar was reported to have been on the governor's short list in 2011 of possible replacements for Justice Carlos Moreno.  That appointment went to Goodwin Liu.]

Although announced today, Cuéllar will not join the court for over five months, because he is being nominated to fill the vacancy that will be created by Justice Marvin Baxter’s retirementFirst, he must be confirmed by the Commission on Judicial Appointments and then by the voters at the November election.  If both occur, he will take his seat when Justice Baxter’s term expires on January 5, 2015.Cuellar

The governor still has one high court vacancy to fill, an appointee to replace Justice Joyce Kennard.  Because of the different ways that Justices Baxter and Kennard chose to leave their positions, Justice Kennard’s successor could be seated on the court before Cuéllar.

With the nomination of Cuéllar, Governor Brown continues his trend (if two is a trend) of appointing northern California law professors in their early 40′s to the Supreme Court.  Cuéllar is 41.  Justice Goodwin Liu, who was appointed almost three years ago to the day, was teaching at UC Berkeley’s law school.

According to the governor’s press release, Cuéllar was born in Matamoros, Mexico, and for a number of years walked across the border each day to attend school in neighboring Brownsville, Texas.  At age 14, he moved with his family to the Imperial Valley of California.  His undergraduate degree is from Harvard College, he graduated from Yale Law School, and he earned a Doctor of Philosophy degree in political science from Stanford University, where he started teaching in 2001.  Cuéllar served as special assistant to President Obama for Justice and Regulatory Policy at the White House Domestic Policy Council and was co-chair of the Obama-Biden Transition’s Immigration Policy Working Group.  He served as a law clerk to Ninth Circuit Judge Mary M. Schroeder and was a senior advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury from 1997 to 1999.  Cuéllar is married to U.S. District Judge Lucy H. Koh of the Northern District of California.

July 18, 2014

Summary of July 16, 2014 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, July 16, 2014.  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

Horiike v. Coldwell Banker Residential Brokerage Company, S218734—Review Granted—July 16, 2014

This case presents the following issue:  When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code section 2079.13, subdivision (b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality and counseling to both?

In this case, the salesperson misinformed the buyer of the amount of living area insisting there were 15,000 square feet of living space when he knew there were less than 9,500.  After completing the property transaction, the buyer discovered the misinformation and filed a complaint against both the brokerage company and the salesperson for, among other things, breach of fiduciary duty.

The trial court found in favor of the salesperson, holding that although the salesperson made a false representation of material fact, he was not liable since he “honestly believed, and had reasonable grounds for believing, the representation was true when he made it.”

In a published opinion, Horiike v. Coldwell Banker Residential Brokerage Company, B246606, the Court of Appeal, Second District, Division Five, reversed and remanded.  The Court cited Civil Code section 2079.13, subdivision (b) which states, “[t]he agent in the real property transaction bears responsibility for his or her associate licensees who perform as agents of the agent.  When an associate licensee owes a duty to any principal, or to any buyer or seller who is not a principal, in a real property transaction, that duty is equivalent to the duty owed to that party by the broker for whom the associate licensee functions.”

Accordingly, since the salesperson was an associate licensee acting on behalf of the brokerage company, he owed the same fiduciary duty owed by the broker.

Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., S218497—Review Granted—July 16, 2014

This case presents the following issues:  (1) Does the delegation — by a health care service plan (HMO) to an independent physicians association (IPA), under Health and Safety Code section 1371.4, subdivision (e) — of the HMO’s responsibility to reimburse emergency medical service providers for emergency care provided to the HMO’s enrollees relieve the HMO of the ultimate obligation to pay for emergency medical care provided to its enrollees by non-contracting emergency medical service providers, if the IPA becomes insolvent and is unable to pay?  (2) Does an HMO have a duty to emergency medical service providers to protect them from financial harm resulting from the insolvency of an IPA which is otherwise financially responsible for the emergency medical care provided to its enrollees?

Under Health and Safety Code section 1371.4, subdivision (e), an HMO must reimburse physicians for emergency health care services provided to its enrollees even when the physicians are not under contracts to the HMO’s.  In this case, the defendant HMO delegated its health care obligations to an IPA, making the IPA liable for any payments to the physicians.  When the IPA failed to make payments because of financial hardship, the physicians sought payment from the HMO.  When the HMO failed to reimburse the physicians, they sued the HMO for negligent delegation of its responsibility to the IPA.

In a published decision written by Justice Walter Croskey, the Court of Appeal, Second District, Division Three, held the HMO liable to the physicians on the ground that an HMO has a duty not to delegate its obligation to reimburse emergency physicians to an IPA it knows or has reason to know will be unable to pay.

Review Denied (with dissenting justices)




July 16, 2014

The Judicial Council’s administrative arm will no longer be known as the “Administrative Office of the Courts”

The much-maligned Administrative Office of the Courts (AOC) is no more.  Well, sort of.  The Daily Journal[subscription required] reported recently that the Judicial Council voted to stop using the title “Administrative Office of the Courts” when referring to the Council’s administrative arm.  According to leaders of the judicial branch, the name had become an obstacle and a source of confusion during budget negotiations.  The Daily Journal quotes recently retired AOC director Steven Jahr as saying the name gave the misimpression that the AOC functions separately from the Judicial Council and caused lawmakers to conclude incorrectly that the AOC had “direct authority over trial court operations.”

All that may be true.  But, as we have often noted, for several years the AOC has been a lightning rod for critics of centralized court administration in California.  It is therefore not too surprising that those critics have been underwhelmed by what they perceive to be the current effort at “‘[r]ebranding.’”  The Daily Journal quotes Judge Maryanne Gilliard, a leader of the Alliance of California Judges, the AOC’s longtime critic, as saying:  “‘The fact that they are dumping their name should be a wakeup call that instead of just a name change we need a regime change.’”

The Daily Journal piece notes that valid criticisms concerning inefficiency and unaccountability have been leveled at the AOC in recent years.  But it also notes that, “[u]nder [Chief Justice Tani] Cantil-Sakauye, the branch has sought to implement reforms, reorganizing the leadership structure, withdrawing autonomy formerly granted to its director positions and redefining the role of its various offices. It’s currently using outside contractors to audit and review the AOC’s staffing as well.”

Only time will tell if the name change brings about “‘a perceptual change, perhaps even a cultural change,’” as Jahr predicts.  But in the meantime, we assume the owners of a certain Los Angeles dining establishment are pleased.

July 12, 2014

Employment compensation opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Peabody v. Time Warner Cable, Inc.  In that case, the court will answer this question at the Ninth Circuit’s request:  May an employer, consistent with California’s compensation requirements, allocate an employee’s commission payments to the pay periods for which they were earned?  Peabody was argued in June.

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