February 18, 2016

Supreme Court gives defaulting homeowners additional tool to fight foreclosures

In Yvanova v. New Century Mortgage Corporation, the Supreme Court today holds that defaulting homeowners have standing to challenge the validity of an assignment of the note and deed of trust on which a foreclosure is based.  The court’s unanimous opinion, written by Justice Kathryn Werdegar and with a Court of Appeal justice sitting pro tem in place of Justice Ming Chin, comes with a number of qualifications, stressing what the opinion itself labels a “narrow” ruling:

“We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment.  We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party’s right to proceed.  Nor do we hold or suggest that plaintiff in this case has alleged facts showing the assignment is void or that, to the extent she has, she will be able to prove those facts.  Nor, finally, in rejecting defendants’ arguments on standing do we address any of the substantive elements of the wrongful foreclosure tort or the factual showing necessary to meet those elements.”

The court reverses the decision of the Second District, Division One, Court of Appeal.  Also it disapproves Court of Appeal opinions by the Fourth District, Division Three (issued in 2013), the Second District, Division Three (2013), the Fourth District, Division Two (2012), and the First District, Division One (2011).  Instead, the court agrees with a 2013 opinion by the Fifth District Court of Appeal.

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February 18, 2016

Another death penalty unanimously affirmed

The Supreme Court today unanimously affirms another death sentence.  The court’s opinion in People v. O’Malley is authored by Justice Leondra Kruger.

Among other things, the court rejects the defendant’s Batson/Wheeler argument that the prosecution racially discriminated against two potential jurors when he exercised peremptory challenges against them.  The Batson/Wheeler issue has been a point of dispute among the justices in other cases, and could be again in future ones, but not this time.

The court also finds without merit the contention that it was error to refuse defense counsel’s request to withdraw based on an alleged threat made by defendant’s wife against counsel’s wife.

February 17, 2016

Foreclosure-standing and death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Yvanova v. New Century Mortgage Corporation and People v. O’Malley, which both were argued on the court’s December calendar.

Yvanova is a high-profile case that has attracted many amicus briefs and that has at least five grant-and-hold cases waiting for tomorrow’s decision.  It raises the issue whether, in an action for wrongful foreclosure on a deed of trust securing a home loan, the borrower has standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void.  Justice Ming Chin is recused on this one.  In his place, Fourth District, Division One, Court of Appeal Justice Richard Huffman is sitting pro tem.

O’Malley is an automatic appeal from a November 1991 judgment of death.

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

February 15, 2016

No conference held the week of February 8, 2016

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.

February 14, 2016

Speculation about a California Supreme Court justice being promoted

It didn’t take long after the very sad news of Justice Antonin Scalia’s death was announced before pundits began speculating about whom President Barack Obama will nominate to fill the vacancy on the US Supreme Court.  Among the names some have mentioned are two California Supreme Court Justices — Goodwin Liu and Mariano-Florentino Cuéllar.  (E.g., here, here, here, here, and here.)

As noted four years ago, only one justice has served on both the US and California supreme courts, and that was a long time ago — Stephen Field was a Lincoln appointee.

February 11, 2016

Death penalty unanimously affirmed

The Supreme Court today affirms the death penalty judgment in People v. Mendoza.  The court’s opinion, written by Chief Justice Tani Cantil-Sakauye, holds the trial court erred in allowing the defendant to be absent during part of the trial, but decides the error was harmless.  It also concludes substantial evidence supported a jury’s finding that the defendant was competent to stand trial, even though he “presented considerable evidence of incompetency.”  Further, the court rejects other arguments, including that the trial court erred in failing to conduct additional competency hearings during the case.

February 10, 2016

Summary of February 3, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 3, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. The Court invited the Department of Managed Health Care to submit an amicus brief in a pending case.

Review Granted

None.

Briefing Requested

Centinela Freeman Emergency Medical Assoc. v. Health Net of California, S218497- Review Granted on May 13, 2014 – Briefing Requested- February 3, 2016

The Court has invited the Department of Managed Health Care (DMHC) to serve and file an amicus curiae brief expressing its views on the following two-part question: In light of the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.) and the DMHC’s implementing regulations, does a health care service plan owe a common law tort duty of care to non-contracting emergency service providers, who provide emergency care on a statutorily compelled basis to the health plan’s enrollees, in either (1) making or (2) continuing a delegation of its financial responsibility for payment of the providers’ claims to an individual practice association (IPA)?

The Court of Appeal, Second District, Division Three, held in a published decision, Centinela Freeman Emergency Medical Assoc. v. Health Net of California (2014) 225 Cal.App.4th 237, that an HMO has a duty not to delegate the obligation to reimburse emergency physicians to an IPA it knows or should know will be unable to pay. The Court of Appeal held a cause of action exists for an HMO’s failure to reassume the obligation to reimburse emergency physicians. However, the HMO owes no duty to reimburse a non-emergency radiologist and therefore need not reassume the reimbursement obligation.

Review Denied (with dissenting justices)

None.

Depublished

None.

February 10, 2016

March calendar: two cases added, one case continued

The Supreme Court this morning posted a revised March calendar.  Continuing one case and adding two new cases (with the minimum amount of notice), there will now be five arguments next month instead of four.

The day after first announcing the calendar, the court received a letter from the Deputy Attorney General on one of the cases — People v. Becerra, an automatic death penalty appeal — that she would be unavailable in March and April.  The letter was dated a week earlier, so perhaps counsel didn’t actually violate the good-practice principle of advising the court of unavailability before the case is put on calendar.  In any event, the court is accommodating counsel’s schedule — as the court often, but not always, does — and is continuing the Becerra argument.  Accommodating, that is, up to a point — the argument has been continued until April, even though counsel’s letter said she was unavailable that month, too.

Substituting for Becerra on the March calendar are (with the issue presented as stated on the court’s website):substitution

Winn v. Pioneer Medical Group, Inc.:  Does “neglect” within the meaning of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15657) include a health care provider’s failure to refer an elder patient to a specialist if the care took place on an outpatient basis, or must an action for neglect under the Act allege that the defendant health care provider had a custodial relationship with the elder patient?

People v. Robinson:  Is misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)) a lesser included offense of sexual battery by fraudulent representation (Pen. Code, § 243.4, subd. (c))?

February 10, 2016

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Mendoza, an automatic appeal from a May 2006 judgment of death.  Mendoza was argued on the October calendar, but the case was resubmitted almost seven weeks later after post-argument supplemental briefing.

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

February 5, 2016

“California Supreme Court In 2015: A Year In Transition”

After presenting a webinar early last year about what to expect from the Supreme Court in 2015, veteran appellate lawyer Kirk Jenkins gives a comprehensive statistical wrap up in Law360 [subscription].  His conclusions:  “(1) the court continues to have a strong interest in government and administrative law; (2) although unanimity at the Court of Appeal is not fatal to one’s chances of persuading the Supreme Court to grant review, an unpublished appellate decision very nearly is; (3) both the court’s unanimity rate and its reversal rate may be edging upward; (4) there is significant evidence that the court may be taking a more liberal approach in criminal law; and (5) although the margin for error for civil defense counsel may have decreased with the retirement of two Republican justices, there remains a viable center on the court, consisting of the chief justice and Justices Corrigan, Chin and Werdegar.”

February 4, 2016

Four cases on the March calendar

The Supreme Court today announced its March calendar.  The court will hear four arguments, two of which will be in death penalty appeals.  That will be the second calendar in a row with only four cases.

On March 1, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Webb v. Special Electric Company, Inc.:  (1) Should a defendant that supplied raw asbestos to a manufacturer of products be found liable to the plaintiffs on a failure to warn theory?  (2) Was the trial court’s decision to treat defendant’s pre-trial motions for nonsuit and for a directed verdict as a post-trial motion for judgment notwithstanding the verdict procedurally improper, and if so, was it sufficiently prejudicial to warrant reversal?  [Disclosure:  Horvitz & Levy is counsel for Special Electric.]

People v. Franklin:  This is an un-hold case.  Briefing was originally deferred pending resolution of two cases —  In re Alatriste and In re Bonilla — raising these issues:  (1) Did Senate Bill 260 (Reg. Sess. 2013-2014), which includes provisions for a parole suitability hearing after a maximum of 25 years for most juvenile offenders serving life sentences, render moot any claim that such a sentence violates the Eighth Amendment to the federal Constitution and that the petitioner is entitled to a new sentencing hearing applying the mitigating factors for such juvenile offenders set forth in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455]?  If not:  (2) Does Miller apply retroactively on habeas corpus to a prisoner who was a juvenile at the time of the commitment offense and who is presently serving a sentence that is the functional equivalent of life without the possibility of parole?  (3) Is a total term of imprisonment of 77 years to life (Alatriste) or 50 years to life (Bonilla) for murder committed by a 16-year-old offender the functional equivalent of life without possibility of parole by denying the offender a meaningful opportunity for release on parole?  (4) If so, does the sentence violate the Eighth Amendment absent consideration of the mitigating factors for juvenile offenders set forth in Miller?
When the court un-held Franklin, it ordered briefing in the case to include these issues:  (1) Did defendant’s sentence of 50 years to life for a homicide committed when he was a juvenile violate the Eighth Amendment?  (2) Was the first issue rendered moot by the enactment of Penal Code section 3051?
Interestingly, the two cases for which Franklin originally was on hold are both fully briefed but have not been scheduled for argument yet.

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

People v. Becerra:  This is an automatic appeal from an October 1997 judgment of death.  The court’s website does not list issues for such appeals.

February 4, 2016

Two death penalty judgments unanimously affirmed

The Supreme Court today unanimously affirms the death sentences in People v. Casares and People v. Peoples.  The Casares opinion is written by Justice Kathryn Werdegar.  Justice Goodwin Liu writes for the court in Peoples.  In Peoples, the court affirms despite what it finds to be “unprofessional” and “improper” conduct by the prosecutor.

February 3, 2016

Two death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in two death penalty appeals argued on the December calendarPeople v. Casares is an automatic appeal from a March 1992 judgment of death.  The judgment of death in People v. Peoples was entered in August 2000.

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

February 1, 2016

“Shifting alliances tally up to more unpredictable CA Supreme Court”

John Roemer writes in the February edition of the California Bar Journal that, “[a]fter decades of domination by conservatives, the newly reconstituted state Supreme Court is now approaching political parity.”  And he gives much of the credit for the shift not to Governor Jerry Brown’s three appointees, but to veteran Justice Kathryn Werdegar’s “political odyssey leftward.”

February 1, 2016

Supreme Court broadens bail forfeiture possibilities

In People v. Safety National Casualty Corp., the Supreme Court today holds that a defendant’s bail can be forfeited if — without a written waiver of personal presence or a sufficient excuse for absence — he or she fails to appear at many in-court proceedings, not just those that he or she has a due process right to attend.  The court’s unanimous opinion, written by Justice Ming Chin, explains that the constitution provides a right to appear and defend, but no reciprocal right to be absent.

The court reverses the Second District, Division Eight, Court of Appeal.  It also disapproves a 1974 opinion by the First District, Division One, and a 1985 Fifth District decision.

January 29, 2016

Summary of January 27, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 27, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Jameson v. Desta, S230899—Review Granted — January 27, 2016

This case presents the following question: In the case of a litigant who has been granted a waiver of court reporter’s fees pursuant to Government Code sections 68086 and 68631, can the Superior Court employ a policy that has the practical effect of denying the services of an official court reporter to such a litigant, if the result is to preclude such persons from procuring and providing a verbatim transcript for appellate review?

In a medical negligence case, at a hearing 10 days before the commencement of the jury trial, the court “informed the parties that ‘the Court no longer provides a court reporter for civil trials, and that parties have to provide their own reporters for trial.’ The jury trial was not reported and there is no indication in the record that either party sought to provide a court reporter for the trial.”

The Court of Appeal, Fourth District, Division One, held in a published decision, Jameson v. Desta (2015) 241 Cal.App.4th 491, that the indigent plaintiff was not entitled to an official court reporter even though he obtained a fee waiver for a court reporter pursuant to Government Code sections 68086 and 68631. It thus affirmed the judgment for the defendant. The court explained “the record on appeal does not contain a reporter’s transcript. [Plaintiff] is therefore precluded from obtaining a reversal of the trial court’s ruling granting [defendant’s] motion for nonsuit.” The court further held the trial court did not err in holding the plaintiff was not entitled to summary judgment because he failed to establish the amount of damages suffered.

In re Tyler R., S231144—Review Granted and Held — January 27, 2016

The court ordered briefing deferred pending decision in In re R.T., S226416, which presents the following issue: In a juvenile dependency proceeding, does Welfare and Institutions Code section 300, subdivision (b)(1), authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child?

The Court of Appeal, Second District, Division Seven, held in a published decision, In re Tyler R. (2015) 241 Cal.App.4th 1250, that substantial evidence supported the trial court’s finding that a parent’s severe disability posed a sufficient safety risk to warrant loss of parental custody rights.

Review Denied (with dissenting justices)

None.

Depublished

None.

 

January 29, 2016

Bail forfeiture opinion filing Monday, while we wait a bit longer for a death penalty decision

On Monday morning, the Supreme Court will file its opinion in People v. Safety National Casualty Corp., which was argued on the November calendar.  The case raises the issue whether Penal Code section 977, subdivision (b)(1), may be utilized to determine if 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).

Monday is the 90th and last day to file opinions in November calendar cases . . . except for People v. Masters.  That death penalty appeal wasn’t submitted until almost four weeks after argument, when supplemental briefing was completed, and it’s a case’s submission that starts the 90-day clock.  Of course, with the judgment in the case being over 25 years old, with initial briefing completed more than 12 years ago, and with a related habeas corpus proceeding still pending almost 9 years after the Supreme Court issued an order to show cause, an extra few weeks’ wait for the opinion doesn’t matter much.  (Note:  an initiative that might appear on the ballot this year would require, “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 disruption to the state’s judicial system if that initiative became law cannot be overstated.)

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

January 28, 2016

“California Decides to Go It Alone on Taxes”

The economics editor for Bloomberg Businessweek does not like the Supreme Court’s decision last month in Gillette Company v. Franchise Tax Board.  He claims that the opinion “[s]uddenly [puts] the legal standing of [the almost 200 existing interstate] compacts . . . under a cloud.”  However, he later admits that the compact at issue in Gillette — the Multistate Tax Compact — “has been known to be squishy for years” and that “[o]ther compacts are considerably stronger.”  In any event, he reports Gillette is planning to petition the US Supreme Court for certiorari.

January 28, 2016

“Referencing” and “mentioning” unpublished opinions in petitions for review

Rule 8.1115(a) provides generally that “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”  The rule states some exceptions:  “When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or . . . [w]hen the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”

There is also at least one unstated exception.  When petitioning for review, it is considered appropriate to tell the Supreme Court about unpublished opinions demonstrating that there is a division in the lower courts about a question of law or that an issue is frequently recurring.  Thus, the unpublished opinions are not being cited for any precedential value, but to establish the most fertile grounds for review:  that review is “necessary to secure uniformity of decision or to settle an important question of law.”  (Rule 8.500(b)(1).)

This exception might be unstated in the rules, but commentators have written about it over the years.  The current version of the California Criminal Appellate Practice Manual says, “In addition to the exceptions specifically enumerated in the rule, counsel have occasionally discussed unpublished cases – without protest from the court – when the use of the cases is consistent with the rationale underlying the general no-citation rule.  A petition for review, for example, may point to unpublished cases to show conflicts among the courts on a particular issue, the frequency with which an issue arises, or the importance of an issue to litigants and society as a whole. . . .  [This is] consistent with the general no-citation rule because [it is] referring to the unpublished cases, not as authority or precedent to persuade the court on the merits of an issue, but as evidence of some external fact.”  (Footnote omitted.)  See also Daniel U. Smith & Valerie T. McGinty, “Obtaining California Supreme Court Review,” Plaintiff Magazine (Dec. 2012) (“Citing unpublished decisions to show the issue is unsettled does not violate . . . rule 8.1115(a) because the petitioner is not relying on the unpublished decision as precedent that should be followed”).

Because the rule on its face bars “cit[ing] or rel[ying] on” unpublished opinions, courts and litigants, when wanting to talk about those opinions, have resorted to using verbs different from — although essentially synonymous with —  “cite” and “rely.”  The Supreme Court recently noted — without complaining — a party’s “reference[ ]” to an unpublished opinion; in the case before it the reference was to show costs in FEHA cases can be substantial.  (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 113.)  A few years ago, a Court of Appeal “mention[ed]” and “simply note[d]” a depublished case; the court said it knew about the rule “barring citation to or reliance upon a depublished California case,” but the “mention” was “in order to accurately describe the current state of law.”  (Robinson v. SSW, Inc. (2012) 147 Cal.Rptr.3d 230, 235 & fn. 7.)  (Ironically, the Robinson opinion itself was depublished by the grant of review.)

As long as the Supreme Court is considering changing the rule that automatically depublishes review-granted Court of Appeal opinions, the court might also look at revising the rule about citation of unpublished opinions.  Instead of sending courts and parties to the thesaurus for alternate ways to say “cite” or “rely on,” why not change the rule to say something like, unpublished opinions cannot be “cited or relied on as binding or persuasive precedent” (new language emphasized)?  (If that change were made, the current rule’s stated exceptions could be deleted as superfluous.)  It would make the rule roughly equivalent to the non-hearsay rule that allows admission into evidence of another’s statement if the statement is not being offered for the truth of the matter stated.

Excellent research for this post was provided by Horvitz & Levy appellate fellow Jessica Di Palma.

January 25, 2016

Supreme Court limits PUC authority to review water district’s fee

In Monterey Peninsula Water Management District v. Public Utilities Commission, the Supreme Court today unanimously holds that the Public Utilities Commission does not have the authority to review the amount of a fee imposed by a water management district on a public utility’s customers for work the district did to mitigate environmental damage the utility had caused.  The opinion, by Justice Leondra Kruger, also assures that “PUC regulation is not the only mechanism for addressing questions about the amount of the user fee or the efficiency of the District’s mitigation work,” pointing to the utility customers’ options of suing the District or electing new members of the District’s managing board.

The case came to the Supreme Court directly from the PUC on an original writ of review from the PUC’s decision.

January 22, 2016

Summary of January 20, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 20, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Regents of The University of California v. Superior Court (Rosen), S230568—Review Granted — January 21, 2016

This case presents the following question: Do California public institutions of higher education and their employees have a duty of care to their students while in the classroom to warn them of, and protect them from, foreseeable acts of violence by fellow students?

The Court of Appeal, Second District, Division Seven, granted a petition for writ of mandate and held in a published decision, Regents of the University of California v. Superior Court (2015) 240 Cal.App.4th 1296, that a public university has no general duty to protect its students from the criminal acts of other students.

Presiding Justice Dennis M. Perluss dissented. (The Court also denied review this week in another matter in which Presiding Justice Perluss dissented.)

Review Denied (with dissenting justices)

None.

Depublished

None.

January 22, 2016

New California Supreme Court Historical Society newsletter

The Fall/Winter 2015 newsletter of the California Supreme Court Historical Society (disclosure:  I’m on the board of directors) is available.  The newsletter Justice Grodinfocuses on the November tribute event honoring former Supreme Court Justice Joseph Grodin.  The event included the premier of a documentary about Justice Grodin’s life.

The newsletter also previews a soon-to-be-published comprehensive history of the Supreme Court — Constitutional Governance and Judicial Power.

January 22, 2016

PUC opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Monterey Peninsula Water Management District v. California Public Utilities Commission, which was argued on the November calendar.  The case raises the issue whether the Public Utilities Commission has 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.

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

January 21, 2016

Antideficiency statute protected short-selling homeowner

In Coker v. JP Morgan Chase Bank, N.A, the Supreme Court today extends the reach of a statute that prevents a foreclosing bank from recovering more than the proceeds of the foreclosure sale.  The court’s unanimous opinion, written by Justice Goodwin Liu, concludes that the statute also offers similar protection to a homeowner who, with the bank’s agreement, engineers a short sale, i.e., a sale for an amount less than the outstanding loan balance.  The court also holds invalid a waiver by the short-selling homeowner of the statute’s protection.

Actually, the court doesn’t extend the statute; according to the opinion, the Legislature already did that in 2012.  What the court does today is interpret the statutory scheme as it read before the 2012 amendment.

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

January 21, 2016

Death penalty affirmed despite disagreement about unrelated-murder evidence

In People v. Johnson, the Supreme Court today affirms the death penalty for the lying-in-wait murder of an Orange County white supremacist gang member.  The affirmance is unanimous, but there is a disagreement about the relevancy in the penalty phase of certain victim impact testimony.

In an opinion by Chief Justice Tani Cantil-Sakauye, the majority finds no error in admitting the testimony of the mother of a victim of a murder other than the murder for which the defendant was convicted.  But Justice Mariano-Florentino Cuéllar, joined by Justices Goodwin Liu and Leondra Kruger, concludes the evidence was inadmissible under the pertinent statute.  He also reports that his research reveals that California now becomes “the only jurisdiction in the country to expand the scope of aggravating evidence in a capital trial to this extent.”  It is a concurring opinion, however, because the three justices believe the error was harmless.

The court overrules its own 1985 decision on victim impact testimony and also disapproves a 1984 decision of the Second District, Division Four, Court of Appeal on that same subject.  The court agrees with a 2003 Fourth District, Division One, Court of Appeal opinion about the constitutionality of the current lying-in-wait special circumstance, which was adopted by the voters in 2000.

January 20, 2016

Death penalty, real property opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in People v. Johnson and Coker v. JP Morgan Chase Bank, N.A.

Johnson, which was argued on the November calendar, is an automatic appeal from a November 2009 judgment of death.

Coker was argued just last month.  It raises these questions:  (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?

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

January 19, 2016

“Binding precedent, pending review”

Horvitz & Levy’s Jessica Di Palma writes in today’s Daily Journal [subscription] about the proposed rule change to keep Court of Appeal opinions on the books even after the Supreme Court grants review.  The article also examines the public comments submitted in support of or opposition to the proposal.  If the Supreme Court adopts the new rule, the change will be effective in July.

January 15, 2016

DRI to hold appellate advocacy conference next month

The Defense Research Institute (DRI) will be holding an appellate advocacy conference on February 10-12, 2016, at the Scottsdale Resort at McCormick Ranch in Scottsdale, Arizona.   Among the highlights will be a “live moot argument with insight and analysis from a distinguished panel of appellate judges,” “expert commentary on appellate issues confronting businesses,” and networking opportunities with appellate practitioners, in-house counsel, and appellate judges from around the country.  (Full disclosure: Horvitz & Levy partner David M. Axelrad will be speaking at the conference.)

January 15, 2016

“Californians sharply divided about what to do with the state’s death penalty law”

A Field poll released today finds Californian voters evenly split in their choice of what to do about “ongoing legal delays in carrying out the death sentence in California.”  48 percent favor “[t]aking steps to speed up the execution process,” while 47 percent want to “[d]o away with [the] death penalty and replace it with life-in-prison without the possibility of parole.”  The trend is in favor of the latter, however; in September 2014, the speed-up option led the abolition option 52 percent to 40 percent.

This poll is of more than academic interest to the Supreme Court, which is mandated to decide direct and automatic appeals from every California death sentence.  Two competing initiatives might appear on November’s ballot offering voters the very choices about which the poll asks.  Adoption of either would have a dramatic effect on the court’s caseload.

 

January 14, 2016

Summary of January 13, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, January 13, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

County of Los Angeles v. Financial Casualty & Surety, S230213—Review Granted—January 13, 2016

The Court granted review limited to the question whether the authority granted to a jailer under Penal Code section 1269b, “to set the time and place for the appearance of the arrested person before the appropriate court and give notice thereof” makes the appearance in that court on that date “lawfully required” for purposes of forfeiting bail under Penal Code section 1305, subdivision (a)(4).

The Court of Appeal, Second District, Division Four, held in a published opinion, County of Los Angeles v. Financial Casualty & Surety Inc. (2015) 240 Cal.App.4th 535, that section 1269b does not address forfeiture of bail, which is governed by section 1305. The court also stated that the section 1269b does not state that the defendant is lawfully required to appear in court on the date appearing on the bond or he or she risks forfeiture of the bond. The Court of Appeal upheld the trial court’s decision setting aside summary judgement, vacating forfeiture, and exonerating bail.

Persolve v. Szanto, S231036—Review Granted and Held—January 13, 2016

The Court granted review and deferred briefing pending consideration and disposition of John v. Superior Court, S222726, which raises the following issue: Must a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment? (Note that John is scheduled for argument February 9, 2016, at 10:00 a.m., in Sacramento.)

Young’s Market Company v. Superior Court (San Diego Unified School District), S230808,—Review Granted and Held —January 13, 2016

The Court granted review and deferred briefing pending consideration and disposition of related issues in Property Reserve v. Superior Court, S217738, which raises the following issues: (1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the February 22, 2011, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?

The Court of Appeal, Fourth District, Division One, affirmed the trial court’s ruling and held in a published opinion, Young’s Market Company v. Superior Court (2015) 242 Cal.App.4th 356, that the Superior Court’s order complied with eminent domain and did not violate the entry statutes or the California Constitution.

Review Denied (with dissenting justices)

None.

Depublished

M.(S.) v. Los Angeles Unified School District, S230064 – Depublished – January 13, 2016

This was an action against a school district for negligent supervision of a teacher who sexually abused a student. The Court of Appeal, Second District, Division Five, reversed the trial court and held in a published opinion, S.M. v. Los Angeles United School District (2015) 240 Cal.App.4th 543, that evidence of the plaintiff’s sexual history was inadmissible, and related modified jury instructions were unfairly prejudicial to the plaintiff. The Supreme Court denied review but granted several requests for depublication, directing the Reporter of Decisions not to publish the Court of Appeal’s opinion. (Full disclosure: Horvitz & Levy LLP was appellate counsel for the school district in this matter.)

January 14, 2016

Chief Justice seeks chambers attorney

Chief Justice Tani Cantil-Sakauye is looking to hire a chambers attorney.  According to the job announcement, the attorney’s “[r]esponsibilities will include assisting the Chief Justice in drafting conference memoranda, calendar memoranda, and opinions in cases assigned to her, reviewing and critiquing memoranda and proposed opinions in cases assigned to other justices of the Supreme Court, and reviewing memoranda for the court’s weekly petition conference.”  Last June, the Chief hired a new principal attorney, whose primary job is to assist the Chief with her administrative role as leader of California’s judicial branch.

January 14, 2016

New Supreme Court booklet available

Thanks to appellate lawyer and blogger Ben Shatz’s spotting, we now know that the Supreme Court has published, and made available online, the seventh edition of the booklet about itself.  The booklet includes information about the court’s history and the way it operates.  Paper copies of the booklet — not to be confused with the forthcoming History of the California Supreme Court that will be published by the California Supreme Court Historical Society (disclosure:  I’m on the Society’s board of directors) — are expected to be available by the end of the month.

January 14, 2016

Four arguments on Supreme Court’s February calendar

The Supreme Court today announced its February calendar.  There will be only four cases heard next month.

On February 9, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):

Flores v. Presbyterian Intercommunity Hospital:  (1) Does the one-year statute of limitations for claims under the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5) or the two-year statute of limitations for ordinary negligence (Code Civ. Proc., § 335.1) govern an action for premises liability against a hospital based on negligent maintenance of hospital equipment?  (2) Did the injury in this case arise out of “professional negligence,” as that term is used in section 340.5, or ordinary negligence?

John v. Superior Court:  Must a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment?

People v. Cortez:  Did the Court of Appeal err by reversing the conviction of defendant Cortez due to error in admitting a statement made by defendant Bernal to his nephew, error in instructing the jury with CALCRIM No. 361, and prosecutorial misconduct?

People v. Townsel:  This is an automatic appeal from a September 1991 judgment of death.  The court’s website does not list issues for such appeals.  However, the court has asked for supplemental briefing about the effect on the appeal of the superior court’s acknowledgement that it is unable to produce the records the superior court reviewed in ruling on the appellant’s Pitchess motion.

 

January 14, 2016

No preliminary hearing required for juvenile charged as adult

In People v. Arroyo, the Supreme Court today holds that a statute expanding prosecutors’ discretion to criminally charge certain minors in adult court does not give those minors a right to a preliminary hearing; a grand jury indictment is enough.  The law was adopted in a 2000 initiative — Proposition 21 — by voters who were warned by initiative supporters about “predictions of a juvenile crime wave.”  The nationwide “superpredator” scare at the time is now considered by many to have been exaggerated.

The court’s opinion by Justice Kathryn Werdegar notes that “[t]he purpose of Proposition 21 . . . was to expand the authority of courts of criminal jurisdiction over juveniles who commit criminal offenses” and finds nothing in the statute, or the constitution’s equal protection clause, precluding a prosecutor from proceeding against a minor by grand jury indictment.

A brief concurring opinion by Justice Goodwin Liu, signed by Justice Leondra Kruger, questions a statement in the court’s opinion that a mandatory grand jury finding — that reasonable cause exists to believe the minor comes within the provisions of the statute allowing the minor to be charged in adult court — “may, but need not, be express.  A grand jury properly instructed to make the finding will be deemed to have done so by returning an indictment if the record contains sufficient supporting evidence.”

The court affirms the Fourth District, Division Three, Court of Appeal.  It disapproves a 2001 opinion by the Second District, Division One, Court of Appeal.

January 13, 2016

Criminal prosecution of juveniles opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Arroyo, which was argued on the November calendar.  The case raises the issue whether the criminal prosecution of a juvenile offender under Welfare and Institutions Code section 707, subdivision (d), may be commenced by grand jury indictment or only by the filing of an information after a preliminary hearing.

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

January 4, 2016

Anti-Citizens United proposition can be on the 2016 ballot

Almost 17 months ago, a 5-1 majority of the Supreme Court removed from the 2014 ballot a proposition the Legislature had drafted to seek the electorate’s views on amending the U.S. Constitution to overturn the U.S. Supreme Court’s Citizens United decision.  Today, a 6-1 court in Howard Jarvis Taxpayers Association v. Padilla clears the way for that proposition to appear on the 2016 ballot.  (However, the Legislature will apparently need to pass another bill to put the proposition before the voters in November; the 2014 legislation, which became law without Governor Brown’s approval, concerned only that year’s ballot.)

The court uses a lot of paper on this case.  There are 5 opinions taking up 141 pages.  The majority opinion is authored by Justice Kathryn Werdegar and is signed by Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Mariano-Florentino Cuéllar, and Leondra Kruger.  The Chief Justice, Justice Corrigan, and Justice Goodwin Liu all separately write concurring opinions.  Justice Ming Chin dissents.

This is the majority’s holding:  “(1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature’s exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional.”

The history-filled majority opinion notes that “[t]he seeds of a practice of consultation, the nonbinding solicitation of the people’s views to inform legislative judgments on significant matters, were planted in England in the 17th century.”  However, it limits its decision to ballot measures that relate to the Legislature’s powers under article V of the U.S. Constitution, which provides the process for amending that constitution.  The court leaves for another day whether the Legislature could use an advisory ballot measure “in support of other powers not implicated here.”

The question the majority leaves unanswered is a point of dispute between the Chief Justice and Justice Corrigan on the one hand and Justice Liu on the other.  (Justice Liu openly disagreed with the Chief Justice during oral argument of the case.)  The Chief Justice’s separate opinion argues that the majority decision should not be viewed “as calling into question the validity of all types of statewide and local advisory ballot measures, even those completely unrelated to any proposed amendment to the federal Constitution.”  Justice Corrigan agrees in her concurring opinion.  Justice Liu, however, believes that “such wide-ranging use of advisory ballot measures is not authorized by our state Constitution and would potentially reshape the way electoral politics and policymaking are conducted in California.  We should not take liberties with the careful structure of republican democracy that the framers of our Constitution have built and bequeathed to us.”

Justice Liu’s opinion is more in line with the Governor’s position.  Although stating that “Citizens United was wrongly decided and grossly underestimated the corrupting influence of unchecked money on our democratic institutions,” Governor Brown did not sign the legislation putting the proposition on the ballot because “we should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.”  Letting the legislation become law without his signature was his “signal” that he was “not inclined to repeat this practice of seeking advisory opinions from the voters.”

Justice Chin is the only justice who voted to remove the proposition from the 2014 ballot and who now wants to keep it off the 2016 ballot as well.  (Now-retired Justice Marvin Baxter and Justices Werdegar, Corrigan, and Liu joined Justice Chin in 2014.  The Chief Justice dissented.  Justices Cuéllar and Kruger had not yet joined the court.)  Today, he writes that “[p]lacing advisory measures on the ballot — a right denied even to the people . . . — is no part of the legislative function and does not come within either the Legislature’s lawmaking or ancillary powers.”

December 31, 2015

Citizens United initiative opinion filing Monday

After ending 2015 with a tax opinion about the Legislature’s power to override a multistate compact, the Supreme Court will start the new year with a high-profile decision about the Legislature’s power to ask the voters to weigh in on whether the U.S. Constitution should be amended to override the U.S. Supreme Court’s Citizens United opinion.  As expected, the Supreme Court today announced that, on Monday morning, it will file its opinion in Howard Jarvis Taxpayers Association v. Padilla.  The case was argued on the court’s October calendar and an opinion must file Monday to comply with the 90-day rule.

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

December 31, 2015

Adoption of the Multistate Tax Compact did not bind California

In Gillette Company v. Franchise Tax Board, the Supreme Court today decides that the Legislature has validly precluded multistate businesses from using an apportionment election option under the Multistate Tax Compact.  The unanimous opinion by Justice Carol Corrigan holds that, although California adopted the Compact in 1974, the Legislature’s subsequent enactment of a new apportionment formula can and does trump the Compact’s election option.  The Compact did not create a binding reciprocal agreement among the states that adopted the Compact, the court concludes.  The opinion also includes discussion of the state constitution’s reenactment rule (“A section of a statute may not be amended unless the section is re-enacted as amended”), explaining why enactment of the new apportionment formula did not violate that rule.

The court reverses the First District, Division Four, Court of Appeal, which issued its opinion in this case over three years ago.

December 30, 2015

Multi-state tax opinion filing tomorrow; Citizens United initiative opinion due Monday [UPDATED]

The Supreme Court will ring out 2015 with a tax opinion.  Tomorrow morning, the court will file its opinion in Gillette Company v. Franchise Tax Board, a case that asks:  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?  The case has attracted several amicus curiae briefs, including one on behalf of 18 states and the District of Columbia.

Gillette was argued on the October calendar.  So were two other cases in which the court has yet to issue decisions.  To comply with the 90-day rule, which the court always does, the opinions in those two cases must file Monday.  One of the two is Howard Jarvis Taxpayers Association v. Padilla, a high-profile case which involves the Legislature’s authority to place a non-binding measure on the ballot seeking the electorate’s views on the U.S. Supreme Court’s Citizens United decision.  The other is People v. Mendoza, an automatic appeal from a May 2006 judgment of death.

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

[UPDATE:  Just noticed that the court vacated submission in Mendoza because of post-argument supplemental briefing.  The case was resubmitted on November 23, which re-started the 90-day clock.  Expect a decision in Mendoza by the middle of February.]

December 28, 2015

Program on “Recent Decisions of the California Supreme Court”

Two Horvitz & Levy partners will soon present a Supreme Court program.  Here is information about the program, which is being sponsored by Kendall Brill & Kelly LLP:

Recent Decisions of the California Supreme Court
January 8, 2016
Registration:
Noon-12:15 p.m.
Program:
12:15-1:15 p.m
Description:
The State of California has one of the largest economies in the world, and our Supreme Court is one of the most influential.  Appellate Specialists Jeremy Rosen and Robert Wright of Horvitz & Levy LLP will discuss recent decisions of the California Supreme Court that are of special interest to business litigators and will discuss the potential impact of Governor Brown’s recent appointments to the Court.

LOCATION:
Programs will be held at 10100 Santa Monica Blvd., Lobby Conference Room, in Century City, and seating is limited.
CREDIT:
The program will qualify for 1 hour of MCLE credit and is designed to meet
the qualifications for appellate specialization credit, for which approval is pending.
RESERVATIONS:
Please RSVP by January 6 to Nelly Preca at npreca@kbfirm.com.  Seating is limited.

December 24, 2015

Supreme Court affirms death sentence while reversing one special circumstance and finding musical error. Harmless error analysis again splits the court.

The Supreme Court today unanimously affirms a death penalty judgment in People v. Sandoval, but, by a 5-2 vote, it reverses one of several special circumstance findings.  The majority opinion by Justice Goodwin Liu concludes that a lying-in-wait special circumstance verdict cannot stand because the trial court failed to sua sponte instruct the jury about evaluating circumstantial evidence.  The court leaves intact three other special circumstance findings:  murder of a peace officer engaged in the lawful performance of his duties, murder committed for the purpose of preventing a lawful arrest, and murder to further the activities of a criminal street gang.  Justices Ming Chin and Carol Corrigan dissent from the reversal of the one special circumstance finding.

Among other things, the court also concludes there was prosecutorial misconduct in a PowerPoint display of photos of the victims “accompanied by stirring orchestral music.”  “[B]ecause background music in victim impact presentations provides no relevant information and is potentially prejudicial, it is never permitted,” the court holds.  The misconduct in this case was found harmless, however.

The harmlessness analysis regarding another error — improperly limiting defense counsel’s jury argument — is more controversial and re-opens a debate from an earlier (and future) case.  The Attorney General did not argue the error was harmless and the majority suggests that the omission should make it harder for a reviewing court to find a lack of prejudice.  Justices Chin and Corrigan disagree, stating that the stricter analysis is “clearly at odds with the California Constitution’s express commands regarding the review duty of California appellate courts.”  (They also disagree there was an error in the first place.)  Although not mentioned in the opinion, the effect of the Attorney General’s failure to assert harmless error was a point of dispute in People v. Grimes, which the court has agreed to rehear and is currently awaiting its third argument.  The issue doesn’t matter in today’s case because the majority finds the error harmless even under a more exacting standard, but it could be consequential in Grimes on rehearing.

Justices Chin and Corrigan each wrote separately, and they concurred in each other’s opinions.  Justice Chin’s opinion is long (23 pages) and written in a style suggesting that the Sandoval appeal was originally assigned to him — the court’s Internal Operating Practices and Procedures states that, unlike other cases, death penalty appeals “are assigned in rotation as they are filed” — but was reassigned when a majority concluded there was error in the lying-in-wait finding and in the limitation of defense counsel’s argument.

December 23, 2015

Death penalty opinion filing tomorrow; anti-Citizens United initiative opinion coming soon

Tomorrow morning, the Supreme Court will file its opinion in People v. Sandoval, an automatic appeal from a May 2003 judgment of death.  Sandoval was argued on the court’s October calendar.

Speaking of the October calendar, after tomorrow there will still be three cases without opinions from those oral arguments.  Because of the 90-day rule, opinions in those cases are due to be filed within the next 12 days.  One of the three is Howard Jarvis Taxpayers Association v. Padilla, which involves the Legislature’s authority to place a non-binding measure on the ballot seeking the electorate’s views on the U.S. Supreme Court’s 2010 Citizens United decision. The California Supreme Court’s opinion will be a high-profile one that could affect relations between the state’s judicial and legislative branches.  (See here, here, here, here, here, here, here, and here.)

December 23, 2015

No conference will be held until January 13, 2016

Due to the Christmas and New Year’s holidays, followed by oral argument in San Francisco during the week of January 4, the Court will be holding no conference until Wednesday, January 13, 2016. Accordingly, until then, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

December 23, 2015

Effective date extended for possible end to automatic depublication rule

Five months ago, the Supreme Court floated for public comment a proposal to end the current rule that the court’s grant of review automatically depublishes a Court of Appeal’s published opinion.  Currently, a Court of Appeal opinion stays on the books pending review only if the Supreme Court affirmatively orders the opinion published.

The public comment deadline was originally September 25, but that was later extended by two weeks.  The effective date for the rule change (if adopted) was to be January 1, but that, too, has now been extended, to July 1.  A notice on the court’s website explains that the court extended the potential effective date “[i]n light of the extensive comments received, and in order to allow appropriate review.”

December 21, 2015

Summary of December 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, December 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

Cardenas v. Fanaian, S230533,—Review Granted—December 16, 2015

This case presents the following issue: Does Labor Code section 1102.5, subdivision (b), prohibit an employer from retaliating against an employee for reporting any alleged violation of law or only for reporting alleged violations that involve the conduct of the employer’s business activities?

The Court of Appeal, Fifth District, in a published decision, Cardenas v. Fanaian (2015) 240 Cal.App.4th 1167, affirmed the trial court’s ruling that Labor Code section 1102.5, subdivision (b), prohibits an employer from retaliating against an employee who reports a crime to law enforcement—regardless of whether the crime is related to the employer’s business activities—if the employee has reasonable belief that a crime has occurred.

J.M. v. Huntington Beach Union High School District, S230510—Review Granted—December 16, 2015

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

The Court of Appeal, Fourth District, Division Three, affirmed the trial court’s ruling and held in a published decision, J.M. v. Huntington Beach Union High School District (2015) 240 Cal.App.4th 1019, that under the Government Claims Act, a claimant must satisfy Government Code section 946.6’s requirements for presenting a claim, even if the claimant submitted a timely application for leave to present a late claim. The Court of Appeal also held that failure to give written notice of a denial of an application to present a late claim does not toll the six-month limitation period.

Park v. Board of Trustees of California State University, S229728 – Review Granted—December 16, 2015

This case presents the following issue: Does the anti-SLAPP statute, Code of Civil Procedure section 425.16, authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” but does not seek relief against any participant in that proceeding based on his or her protected communications?

The Court of Appeal, Second District, Division Two, reversed the trial court and held in a published decision, Park v. Board of Trustees of California State University (2015) 239 Cal.App.4th 1258, that the trial court erred in denying the defendant’s anti-SLAPP motion to strike.

County of Los Angeles v. Superior Court (Los Angeles Waterkeeper), S230192, — Review Granted and Held—December 16, 2015

The Supreme Court granted review and deferred further action pending disposition of Los Angeles County Board of Supervisors v. Superior Court (ACLU), S226645, which raises the following issue: Are invoices for legal services sent to the County of Los Angeles by outside counsel 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?

Review Denied (with dissenting justices)

None.

Depublished

None.

December 18, 2015

A bit more waiting for an answer to the Ninth Circuit’s habeas question

It took longer than expected for the Supreme Court to decide it will answer a Ninth Circuit question about California habeas corpus law in Robinson v. Lewis.  Now, after granting the request for an answer on Wednesday, the Supreme Court is saying there might be a wait for the answer itself.  The court today ordered further action — including briefing — deferred until it decides “whether to restate the question of California law to be decided.”  (See Cal. Rules of Court, rule 8.548(f)(5) [“At any time, the Supreme Court may restate the question or ask the requesting court to clarify the question”].)

December 17, 2015

Supreme Court revives challenge to local greenhouse gas regulations

In California Building Industry Association v. Bay Area Air Quality Management District, the Supreme Court today limits the analysis of proposed projects that agencies must do under the California Environmental Quality Act (CEQA).  In the context of a challenge to air pollutant “thresholds of significance” that had been adopted by the Bay Area Air Quality Management District in response to state legislation addressing greenhouse gases, the court’s unanimous opinion by Justice Mariano-Florentino Cuéllar invalidates in part administrative guidelines issued by the California Natural Resources Agency.  Doing so gives new life to the challenge to the thresholds, a challenge which the Court of Appeal had rejected.

The court holds that — except for certain airport, school, and housing projects, and for certain risks like noise, hazardous waste, and wildland fires  — agencies “generally are not required to analyze the impact of existing environmental conditions on a project’s future users or residents.”  The court also states, however, that “when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users.  In those specific instances, it is the project’s impact on the environment — and not the environment’s impact on the project — that compels an evaluation of how future residents or users could be affected by exacerbated conditions.”

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

December 16, 2015

Supreme Court will answer Ninth Circuit habeas question

It took longer than expected, but the Supreme Court today unanimously agreed to answer a Ninth Circuit question about habeas corpus practice.  In Robinson v. Lewis, the court will decide an issue that the Ninth Circuit said is “of exceptional importance to both federal and California courts.”

The question is:  “When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner’s petition, filed in a California court of review to challenge a lower state court’s disposition of the prisoner’s claims, untimely under California law; specifically, is a habeas petition untimely filed after an unexplained 66-day delay between the time a California trial court denies the petition and the time the petition is filed in the California Court of Appeal?”

The Ninth Circuit’s request was essentially a petition for rehearing, coming as it did more than six years after the Supreme Court declined the Ninth Circuit’s request to answer a similar question.

The Supreme Court waited 140 days before agreeing to decide Robinson.  That’s quicker than the 189 days the court took before turning down the Ninth Circuit’s similar request six years ago.  But it’s considerably longer than the court has taken to rule on a Ninth Circuit request in the last five years.  The next longest wait in the last five years was 112 days (the median time during that period was 63 days before today), but the reason for the delay in that case was readily apparent from the court’s order.  We don’t know why the Robinson request took so long.

December 16, 2015

CEQA opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in California Building Industry Association v. Bay Area Air Quality Management District, which was argued on the October calendar.  The case presents this issue:  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?

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

December 15, 2015

Summary of December 9, 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, December 9, 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

California Native Plant Society v. County of Los Angeles (Newhall Land and Farming Company), S230336—Review Granted & Held—December 9, 2015

The Supreme Court granted review and ordered briefing deferred pending finality of the decision in Center for Biological Diversity v. California Department of Fish and Wildlife (Nov. 30, 2015, S217763) _ Cal.App.4th _ [2015 WL 7708312], which addressed issues under the California Environmental Quality Act. A rehearing petition in Center for Biological Diversity was filed on December 14, 2015.

In California Native Plant Society, in an unpublished opinion, the Court of Appeal, Second District, Division Five, affirmed the Superior Court’s judgment that upheld: the certification of an environmental impact report, the approval of an overriding considerations statement, two conditional use permits, factual findings there was substantial conformity with certain grading and set back requirements, issuance of two oak tree permits, issuance of a parking permit, and approval of a vesting tentative tract map.

Review Denied (with dissenting justices)

None.

Depublished

None.