April 21, 2016

Supreme Court affirms death sentence, finding inadequate appellate record to be not prejudicial

The Supreme Court today affirms the death penalty in People v. Townsel.  Although the death sentence remains intact, the unanimous opinion by Justice Kathryn Werdegar does reverse one special circumstance finding and the conviction for one charge against the defendant.  The reversal is based on instructional error.

The court also finds that, because of lost superior court records regarding a Pitchess motion the defendant made about a penalty phase witness, the appellate record was inadequate to review the defendant’s claim that the superior court’s ruling on the motion was erroneous.  However, this does not require a reversal because, the court concludes, there is “no reasonable possibility defendant would have received a more favorable result in this proceeding, even assuming an adequate record would have enabled us to conclude the trial court improperly failed to disclose material responsive to defendant’s Pitchess motion.”

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April 20, 2016

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Townsel, an automatic appeal from a September 1991 judgment of death.  Although the court’s website does not list issues for these direct appeals, the court did ask 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.

Townsel will be the first opinion for cases argued on the February calendar.

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

April 15, 2016

Summary of April 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, April 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

Kim v. Toyota Motor Corporation, S232754 – Review Granted—April 13, 2016

The question presented is the following: Is evidence of industry custom and practice admissible in a strict products liability action?

Plaintiff’s pickup truck when he swerved to avoid another vehicle and suffered severe injuries. Plaintiffs alleged the accident occurred because the pickup lacked electronic stability control (ESC), also known as vehicle stability control (VSC), and that the absence of that device or system was a design defect. The Court of Appeal, Second District, Division Seven, held in a published decision Kim v. Toyota Motor Corporation (2016) 243 Cal.App.4th 1366, that the trial court did not abuse its discretion in denying plaintiff’s motion in limine to exclude all evidence of industry custom and practice.

King v. CompPartners, Inc., S232197 – Review Granted—April 13, 2016

This case presents the following issues: (1) Is an injured worker’s claim for medical malpractice against a workers’ compensation utilization review company barred by workers’ compensation as the exclusive remedy? (2) Does a workers’ compensation utilization review company that performs medical utilization reviews on behalf of employers owe a duty of care to an injured worker? (3) Did the Court of Appeal err in finding that plaintiffs should be given leave to amend their complaint in this case?

As part of a Workers’ Compensation utilization review, defendant physician determined a drug was unnecessary and decertified it.  Plaintiff later experienced seizures and physical injury, allegedly due to the sudden cessation of the drug.  The Court of Appeal, Fourth District, Division Two, held in a published decision King v. CompPartners, Inc. (2016) 243 Cal.App.4th 685, that: (1) the trial court erred in prohibiting plaintiffs from amending their complaint because their failure to warn claim was not subject to Workers’ Compensation exclusivity; (2) defendants owed plaintiff a duty of care because a doctor-patient relationship existed between the parties; (3) the trial court properly sustained the demurrer to plaintiffs existing complaint because the scope of the duty was uncertain due to the lack of details in plaintiff’s complaint.

Renwick v. Sutter Medical Foundation, S232289– Review Granted and Held—April 13, 2016

The court ordered briefing deferred pending decision in Winn v. Pioneer Medical Group, Inc., S211793, which presents the following issue:  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 elderly patient to a specialist if the care occurred 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 elderly patient?

The Court of Appeal, Third District, ruled in an unpublished opinion, Renwick v. Sutter Medical Foundation (2016) 2016 WL 128692, that plaintiff could not state a claim for elder abuse because: (1) plaintiff’s mother was not in defendant’s custody when she was injured; (2) the complaint failed to allege facts showing defendant was aware plaintiff’s mother was likely to become injured; (3) plaintiff could not amend the complaint because the one-year MICRA statute of limitations had passed.

Review Denied (with dissenting justices)

None.

Depublished

None.

April 13, 2016

“Before Ted Ligety, Park City’s most famous native son”

The Park Record (of Park City, Utah) reminisces about former Chief Justice Roger

Roger Traynor with fellow members of the 1916-17 Park City High School Debate Team.

Roger Traynor with fellow members of the 1916-17 Park City High School Debate Team.

Traynor, who was born and raised in Park City.  The article notes that “Traynor’s teachers (one of whom would later serve on the Utah Supreme Court) recognized Traynor’s talents and encouraged him to attend college.”  (Ted Ligety, for those like me who didn’t know, is a two-time Olympic gold medalist giant slalom skier.)

April 8, 2016

No conference held the week of April 4, 2016, and no civil petitions for review granted on March 30

The Court held no conference this week because it heard oral argument in Los Angeles.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.  While in LA, the justices were guests of honor at the annual luncheon of the Appellate Courts Section of the Los Angeles County Bar Association.  Full disclosure: Horvitz & Levy partner Brad Pauley (yours truly) is Chair of the Section.

Last week, in its conference on March 30, the Court granted no petitions for review in civil cases (not counting grant-and-transfers), no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

 

April 8, 2016

The Chief Justice on “What I Told My Daughter(s)”

Today’s Daily Journal [subscription] includes an excerpt of Chief Justice Tani Cantil-Sakauye’s contribution to the recently published book, “What I Told My Daughter.”  In the book, a diverse group of dozens of powerful women — Mia Hamm, Justice Ruth Bader Ginsburg, Laura Bush, Nancy Pelosi, Whoopi Goldberg, Dolores Huerta, to name a few — share advice they’ve given their daughters.

Among other things, the Chief Justice explains how life is like basketball.  A former Foulhoopster herself, she told her daughters when they played that the rules could be followed strategically.  If they were being kicked around on the court without consequence, her daughters were told to use four of their five fouls.  “Use the rules to your advantage; don’t waste opportunities,” is her advice.

The Chief Justice also reflects on career paths, which, she says, should have no rules.  She did not have a master plan to become chief justice, or to be appointed to any of her three previous judicial positions.  Instead, she explains, “I met lawyers who saw the future of the bench and bar as something other than patrilineal institutions” and “who saw the future and me in it.”

April 4, 2016

17-case (!) early-May calendar announced

Because the Supreme Court doesn’t hear oral arguments in July and August, its two or three calendars before the summer are traditionally heavy ones.  This year is no exception.  May is the only month with two oral argument sessions, and the just announced early-May calendar has 17 cases over three days.  The calendar is fairly evenly divided between civil and criminal cases.

In two of the cases (In re Richards and People v. Macabeo), the court will deal with the aftermath of prior decisions having been unfavorably received by the Legislature (Richards) or the U.S. Supreme Court (Macabeo).

On May 3, 4, and 5, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Property Reserve, Inc. v. Superior Court:  (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?

Sandquist v. Lebo Automotive, Inc.:  Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue?

People v. Fuentes:  Does the trial court have the power under Penal Code section 1385 to dismiss a Penal Code section 186.22 enhancement for gang-related crimes, or is the court limited to striking the punishment for the enhancement in accordance with subdivision (g) of section 186.22?

In re Isaiah W.:  Does a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessary preclude the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights?
The United States is one of the amici curiae in this case.

In re Abbigail A.:  Do rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code section 224.1, subdivision (a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment?
The United States is an amicus curiae in this case, too.  Here, however, the court solicited the amicus brief, asking the federal government six months ago to discuss “whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court are preempted to the extent those rules purport to require California courts to apply the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) in child custody proceedings involving a minor who is not an ‘Indian child’ as defined in ICWA.  (See 25 U.S.C. § 1903(4); cf. id., §§ 1902 & 1921.)”

In re Richards:  The court issued an order to show cause why relief should not be granted on the ground that petitioner was convicted on the basis of false evidence as defined in Penal Code section 1473, subdivision (e).
The court is revisiting this conviction after legislation overruled its earlier decision.

Friends of the College of San Mateo Gardens v. San Mateo County Community College District:  When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Ramos v. Brenntag Specialties, Inc.:  Are negligence and strict liability claims by an employee of a processing company against a supplier of raw materials for injuries allegedly suffered in the course of processing those materials barred by the component parts doctrine?
[Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]

People v. Ikeda:  (1) After detaining a person outside a hotel room, may law enforcement officers enter the detainee’s room to conduct a protective sweep under Maryland v. Buie (1990) 494 U.S. 325 based on a reasonable suspicion the room harbors a person posing a danger to officer safety?  (2) Did law enforcement officers have reasonable suspicion in this case to believe defendant’s hotel room harbored a person who posed a danger to officer safety?

People v. Moran:  Was the condition of probation barring defendant from all Home Depot stores and their parking lots after he was convicted of shoplifting at a single Home Depot store unconstitutionally overbroad as impinging on his constitutional right to travel?

People v. Morales:  Can excess custody credits be used to reduce or eliminate the one-year parole period required by Penal Code section 1170.18, subdivision (d), upon resentencing under Proposition 47?
The court’s docket is filled with Proposition 47 cases, raising a variety of issues.  Morales is just one of them, but there are at least a half dozen grant-and-hold cases waiting for the Morales decision.

People v. Macabeo:  (1) May law enforcement officers conduct a search incident to the authority to arrest for a minor traffic offense, so long as a custodial arrest (even for an unrelated crime) follows?  (2) Did Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] require the exclusion of evidence obtained during the warrantless search of the suspect’s cell phone incident to arrest, or did the search fall within the good faith exception to the exclusionary rule (see Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419, 180 L.Ed.2d 285]) in light of People v. Diaz (2011) 51 Cal.4th 84?
Macabeo raises an issue in the wake of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision.

City of Perris v. Stamper:  (1) In this eminent domain case, was the constitutionality of the dedication requirement — that the city claimed it would have required in order to grant the property owner permission to put the property to a higher use — a question that had to be resolved by the jury pursuant to article I, section 19, of the California Constitution?  (2) Was the dedication requirement a “project effect” that the eminent domain law required to be ignored in determining just compensation?

Baral v. Schnitt:  Does a special motion to strike under Code of Civil Procedure section 425.16 authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute?

People v. Espinoza:  (1) Did the trial court err in continuing trial in defendant’s absence without a valid waiver of his trial rights or appointment of counsel after defendant, who was out of custody and representing himself, voluntarily failed to appear for his ongoing trial?  (2) Was reversal required because the trial court refused to grant defendant a one-day continuance after it granted his motion during jury selection to represent himself?

People v. Zaragoza:  This is an automatic appeal from a May 2001 judgment of death.  The court’s website does not list issues for such appeals.

People v. Jackson:  This is an automatic appeal from a November 2005 judgment of death.  The court’s website does not list issues for such appeals.

April 4, 2016

Supreme Court offers California employees a seat

In Kilby v. CVS Pharmacy, Inc., the Supreme Court today re-frames and answers questions posed by the Ninth Circuit about when California employers must provide suitable seating for their employees.  The unanimous opinion by Justice Carol Corrigan interprets wage orders, adopted by the now-defunded Industrial Welfare Commission, that provide, “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The court concludes:  (1) “The ‘nature of the work’ refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a ‘holistic’ consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift,” (2) “Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances” and “[a]n employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors,” and (3) “The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.”

April 2, 2016

Don’t get too excited about that extension order

You’ve just filed a depublication request in a case where nobody filed a petition for review, and the Supreme Court issues an order stating, “The time for granting review on the court’s own motion is hereby extended to” a date about two months later.  You think, “Wow!  I knew I wrote a great depub request, but it was so good the court is now seriously thinking about taking the case and deciding it, even though no party asked the court to do that and even though the court hardly ever grants review on its own motion.”

Or, you’ve lost a case in the Supreme Court and you’ve just filed a rehearing petition and the court issues an order stating, “The time for granting or denying rehearing in the above-entitled case is hereby extended to,” again, a date about two months away.  This time, you think, “Wow!  I knew I could convince the court that its opinion sets California law back decades, even though the court hardly ever grants rehearing.”

In either situation, your second thought is, “I’ve got to call my clients to tell keep-calm-and-don-t-get-excited.jpgthem this amazing news!”  Our advice:  step away from the phone.

In both cases, the extension orders are routine.  As far as we can tell, the court now always extends its time to grant review on its own motion when a depublication request is filed in a case without a petition for review and it always extends its time to rule on a rehearing petition.  The court is just keeping its options open.  While it’s still possible the court will grant review on its own motion or will grant rehearing (but don’t bet on it), the extension order is no indication that that action is more likely than in any other case.

The court also can extend its time to rule on a petition for review.  It doesn’t do that in every case, but the (lack of) significance of an extension order there is about the same as when the court extends its time to grant review on its own motion or to grant rehearing.  When a client hopefully asked whether it was good news that the court extended its time to rule on a petition for review, our founder Ellis Horvitz, would accurately respond, “The extension is better than a denial, but not as good as a grant.”  There’s not much more you can glean from an extension order.

April 1, 2016

Employee seating opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Kilby v. CVS Pharmacy, Inc., the last case from the January calendar that hasn’t been decided yet.

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

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

March 31, 2016

“A dissenting voice shakes up state’s high court”

Maura Dolan reports in today’s Los Angeles Times about Justice Goodwin Liu’s two dissents (see here and here) from denials of review.

The article includes a mention of this blog (thank you!) and also quotes me.  One minor correction.  The defendant in the case which drew Justice Liu’s first dissent — In re Joseph H. — has petitioned the U.S. Supreme Court for certiorari.  The article reports that I said the certiorari petition cites Justice Liu’s dissent.  The petition probably does cite the dissent, but I haven’t seen the petition.

March 28, 2016

Supreme Court upholds arbitration agreement

In Baltazar v. Forever 21, Inc., the Supreme Court today unanimously enforces an arbitration agreement that precludes a court trial on an employee’s action alleging harassment, race and sex discrimination, and retaliation.  The employee claimed the agreement unreasonably favored her employer because, although it allowed either party to seek from a court preliminary injunctive relief even if a claim is being arbitrated, the employer was more likely than an employee to seek that relief.  The court’s opinion by Justice Leondra Kruger rejects the argument because the agreement’s injunctive relief provision just restates a right the parties have by statute anyway.  The court concludes that “an arbitration agreement is not substantively unconscionable simply because it confirms the parties’ ability to invoke undisputed statutory rights.”

The court affirms the Second District, Division One, Court of Appeal.  It disapproves a 2010 decision by the First District, Division Four, Court of Appeal.

March 28, 2016

Supreme Court affirms death penalty, straightens out inconsistency about forfeiting an argument

The Supreme Court today affirms the death penalty in People v. Rangel.  The court’s opinion, authored by Justice Leondra Kruger, rejects numerous arguments, including the claim that the trial court violated the defendant’s Sixth Amendment right to a jury with a representative cross-section of the community because Hispanic prospective jurors were underrepresented.

On another Sixth Amendment issue — concerning forfeiture of a confrontation-clause objection under the U.S. Supreme Court’s Crawford v. Washington (2004) 541 U.S. 36 decision — the court “acknowledge[s] that our approach to this issue has not been entirely consistent.”  The court holds that, “in a case tried before Crawford, a defendant does not forfeit a Crawford challenge by failing to raise a confrontation clause objection at trial,” and it “expressly reject[s] any . . . suggestion” in four of its earlier cases “that counsel may be faulted for failing to object on Crawford grounds in a case tried before Crawford was decided.”

March 26, 2016

Another dissenting statement from the denial of review . . . but you shouldn’t have to learn about it here

Justice Goodwin Liu has written a(nother) long dissenting statement from the denial of a petition for review. He is critical of a First District, Division Two, Court of Appeal unpublished opinion concerning the natural and probable consequences doctrine as used to determine accomplice liability.  He says he would have granted review “[b]ecause this case would enable us to provide useful guidance to the trial courts, and because defendants present a strong argument that they were convicted of second degree murder on a theory unsupported by sufficient evidence.”

Dissenting statements from denials of review are getting to be a thing for Justice Liu.  He filed one five months ago, but that apparently was the first one by a California Supreme Court justice in almost 60 years.

So, where can you read the dissent?  You have to know where to look.  The dissent is on the Supreme Court’s docket in the case — People v. Cruz-Santos —  but not in an easy-to-read format.  It’s also available at the end of the Court of Appeal’s opinion that was re-posted to include the dissent.  At some point, it’s possible that the dissent will appear on Westlaw and Lexis.

The more important question is how do you find out in the first place that a justice has issued a dissenting statement?  That’s more difficult to answer.  Atypically, the denial of review did not happen at the court’s regular Wednesday conference and thus nothing about the dissent even appears on the court’s posted conference list, which itself is relatively obscure.  I found out about the dissent from fellow appellate lawyer and blogger Ben Shatz, who noticed an unusual “S” at the end of the case number on the webpage with links to unpublished Court of Appeal opinions.

If justices are going to write separate statements when the court denies review, those statements should not be buried as they are now.  Justice Liu’s earlier dissenting statement was in a high-profile case, so that denial of review attracted media attention in general.  A ruling on the petition for review in Cruz-Santos, however, was probably being watched for by nobody other than the parties to the case.

There should be a better way.  As we wrote when Justice Liu’s filed his first dissenting statement, separate statements concerning the denial of a petition tree-falls-in-the-forestfor review are important and deserve better.  They should be published in the official reports.  There should also be some notice that a separate statement has been issued.  Maybe something like a notice of forthcoming filing that the court posts the day before an opinion is issued, except the notice could be after the fact for a separate statement.  Also, the separate statement should be posted with other Supreme Court opinions and opinion modifications.

Justice Liu’s dissenting statement prompted Chief Justice Tani Cantil-Sakauye to issue a brief concurring statement, which also appears on the Supreme Court docket and at the end of the re-posted Court of Appeal opinion.  She “note[d] that reasonable minds may differ about the characterization of the record below” and added that “it is well established that this court’s denial of a petition for review is not an expression of the court’s opinion concerning the correctness of the underlying appellate decision, or its result, or of any law stated in that decision.”  Justices Kathryn Werdegar, Ming Chin, and Carol Corrigan concurred in the Chief Justice’s concurring statement.  Justice Leondra Kruger was absent and did not participate.  Justice Mariano-Florentino Cuéllar apparently did not concur in the Chief Justice’s or Justice Liu’s statement, and either simply did not vote to grant review or decided not to record a dissenting vote. Without an eagle eye like Ben Shatz’s, however, you probably wouldn’t know about any of this.

 

 

March 25, 2016

Summary of March 23, 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, March 23, 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

Great Oaks Water Company v. Santa Clara Valley Water District, S231846—Review Granted and Held—March 23, 2016

The Supreme Court granted review and deferred further action pending disposition of City of San Buenaventura v. United Water Conservation District, S226036, which raises the issues: (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26? (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?

The Court of Appeal, Sixth District, held in a published opinion, Great Oaks Water Company v. Santa Clara Valley Water District (2015) 242 Cal.App.4th 1187, that: (1) extraction fee was property-related charge generally subject to constitutional provision, but exempt from requirement of voter ratification; (2) extraction fee did not serve regulatory purpose; (3) district gave timely notice of hearing preceding imposition of proposed extraction fee; (4) pre-suit claim was insufficient to sustain monetary relief based on procedural defects or on theory that district charged disproportionate part of fee to non-agricultural users and charged retailer for services not used by or immediately available to it; but (5) pre-suit claim did not preclude monetary relief on theory that district had charged more than was required to provide property-related service on which fee was predicated; (6) rates adopted by district for extraction fee were not arbitrary, capricious, or unsupported by evidence in violation of water district act; and (7) district did not violate act by spending proceeds of extraction fee on activities outside scope of act, by commingling groundwater revenue with other monies, or by engaging in practices that resulted in a reserve fund.

Marina Coast Water District v. P.U.C., S230728—Review Granted and Held—March 23, 2016

The Supreme Court granted review in this original proceeding following a Public Utilities Commission decision.  It deferred further action pending disposition of Los Angeles County Board of Supervisors v. Superior Court, S226645, which raises the 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.

March 25, 2016

Arbitration, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Baltazar v. Forever 21, Inc. and People v. Rangel.  Both cases were argued on the January calendar.

Baltazar raises the issue whether an employment arbitration agreement is unconscionable for lack of mutuality if it contains a clause providing that either party may seek provisional injunctive relief in the courts and the employer is more likely to seek such relief.  It is an un-hold case.  Review was originally granted three years ago, but briefing was deferred pending a decision in Wisdom v. Accentcare.  However, the court dismissed review in Wisdom after that case settled and the court then asked for briefing in Baltazar.

Rangel is an automatic appeal from a February 1999 judgment of death.

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

 

March 18, 2016

Summary of March 16, 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, March 16, 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

Heckart v. A-1 Self Storage, S232322 – Review Granted – March 16, 2016

This case presents the following issue: Was a self-storage facility’s storage rental agreement, which included provisions arguably meeting the definition of “insurance” (see Ins. Code, §§ 22, 1758.75), subject to regulation under the Insurance Code when the principal purpose of the agreement was the rental of storage space rather than the shifting and distribution of risk?

The Court of Appeal, Fourth District, Division One, held in a published decision, Heckart v. A-1 Self Storage, Inc. (2015) 243 Cal.App.4th 525, that: (1) the storage facility’s rental agreement was not an “insurance contract” subject to regulation under the Insurance Code, and (2) the agreement was not a contract for the “sale or lease of goods or services” within the meaning of the Consumers Legal Remedies Act.

United Riggers & Erectors v. Coast Iron & Steel Co., S231549 – Review Granted – March 16, 2016

The Court limited review to the following issue: May a contractor withhold retention payments when there is a good faith dispute of any kind between the contractor and a subcontractor, or only when the dispute relates to the retention itself?

The Court of Appeal, Second District, Division One, held in a published decision, United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2015) 243 Cal.App.4th 151, that a contractor may withhold a retention payment only when the dispute with the subcontractor relates to the retention itself.

Review Denied (with dissenting justices)

None.

Depublished

None.

March 18, 2016

California Supreme Court Historical Society annual journal is out

The latest edition of “California Legal History,” the annual journal of the California Supreme Court Historical Society (disclosure:  I’m a Society board member) has been published.  Here is what’s inside:CSCHS_Page_001

 

  • Special Section:   Honoring Joseph R. Grodin
  • In Search of California’s Legal History:   A Bibliography of Sources
  • The Loeb Firm and the Origins of Entertainment Law Practice in Los Angeles, 1908-1940
  • Laura’s Law:    Concerns, Effectiveness and Implementation (Excerpt)
  • Inverse Condemnation:    California’s Widening Loophole (Excerpt)
  • Oral History:   Supreme Court Associate Justice Cruz Reynoso (1982-1987) (Excerpt)
  • Agrarian Lifeways and Judicial Transitions for Hispanic Families in Anglo California:   Sources for Legal History in the Autry National Center of the American West (Excerpt)
  • Student Symposium – Introduction:   Three Intersections of Federal and California Law
  • Student Symposium – The Death Penalty Debate:   Comparing the United States Supreme Court’s Interpretation of the Eighth Amendment to that of the California Supreme Court and a Prediction of the Supreme Court’s Ruling in Glossip v. Gross (Excerpt)
  • Student Symposium – Gender Equity in the Workplace:   A Comparative Look at Pregnancy Disability Leave Laws in California and the United States Supreme Court (Excerpt)
  • Student Symposium – Protecting Children:   The California Public School Vaccination Mandate Debate (Excerpt)
  • Book Reviews

 

 

March 17, 2016

Supreme Court orders Court of Appeal opinion republished and then cites the opinion

In today’s decision in Ardon v. City of Los Angeles, the Supreme Court considerably relies on a 2015 opinion by the First District, Division One, Court of Appeal.  But, that opinion was automatically depublished when the Supreme Court granted review in the case and rule 8.1115(a) prohibits the citation of unpublished opinions.  (That case became a grant-and-hold case, pending a decision in Ardon.)  No worries.  At the same time as it issued its Ardon opinion, the Supreme Court ordered the Court of Appeal opinion republished, which the Supreme Court is authorized to do.

If the court adopts a proposal to do away with the rule that a grant of review automatically depublishes the Court of Appeal’s opinion, the Supreme Court won’t need to order republished a review-granted opinion to be able to cite it.

March 17, 2016

Inadvertent Public Records Act disclosure does not waive privilege; impending settlement does not delay Supreme Court decision

In Ardon v. City of Los Angeles, the Supreme Court today holds that a governmental entity’s inadvertent release of privileged documents in response to a Public Records Act request does not waive attorney-client or work product privileges as to those documents.  The unanimous opinion by Justice Ming Chin (who also authored the court’s other opinion filed today) concludes “it is doubtful the Legislature intended to enact a statutory scheme that would prevent government agencies from minimizing the damage caused by the inadvertent disclosure of private and confidential information.”

The Ardon opinion includes an interesting practice point.  Settlements sometimes will and sometimes won’t stop the court from issuing an opinion in a case.  Ardon is one of the “won’ts.”  The court wasn’t told about an impending settlement until the plaintiff did so and also asked for a stay after the defendant had filed its opening brief on the merits.  The court denied the stay request and today notes that “[s]ettling the underlying lawsuit would not make this separate dispute moot.”

The opinion reverses the Court of Appeal, Second District, Division Six.

March 17, 2016

Supreme Court blocks end run around two-dismissals rule

In People v. Juarez, the Supreme Court today enforces a statute that generally bars a felony charge from being dismissed and refiled more than once.  The unanimous opinion by Justice Ming Chin holds that the People’s two dismissals of attempted murder charges against the defendants barred a subsequent prosecution for a different crime — conspiracy to commit murder — based on the same underlying facts.  The court concludes that, if the rule were otherwise, “[o]nly the prosecution’s creativity and the size of the Penal Code and penal provisions in other codes would limit the number of possible filings.”

The opinion reverses the Court of Appeal, Fourth District, Division Three, which had felt its “hands [were] tied” by a 2009 Supreme Court decision.  The Supreme Court today says that the Court of Appeal “read too much into” the prior opinion.

March 16, 2016

Opinions filing tomorrow about inadvertent disclosure of privileged documents, multiple criminal complaints

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

In Ardon v. City of Los Angeles, the court will address these questions:  (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act request waive those privileges and protections?  (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?

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

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

March 13, 2016

The Judicial Council is not like Bruno Mars

Chief Justice Tani Cantil-Sakauye recently spoke with the Sacramento Bee editorial board.  A condensed version of the interview was published this weekend.

The wide-ranging discussion included the Chief Justice’s explanation why most Supreme Court opinions are unanimous, the disclosure that 25 percent of the court’s resources are spent on automatic death penalty appeals and related habeas corpus petitions, and her identification of emerging areas of the law (“whether arbitration is delaying the development of the law,” the Elder Abuse Act as a potential way around MICRA, and CEQA litigation concerning, “importantly, the emerging area of greenhouse emissions”).  The Chief Justice said, “We’re seeing a mix of science and humanity at the Supreme Court.”

When the interview turned to the impending live streaming of Supreme Court oral arguments and the Chief Justice mentioned that the Judicial Council already live streams its meetings, she was asked whether she knew how many people watch the Judicial Council proceedings.  She responded, “No.  (Laughs.)  We’re not like Bruno Mars, who gets 1.4 million hits.”

[Note:  why the semi-frivolous title for the post when the interview covered much more significant topics?  See Frankie Valli.]

March 11, 2016

Summary of March 9, 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, March 9, 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

Prometheus Real Estate Group v. Superior Court, S232576—Review granted and held—March 9, 2016.

Review granted and action deferred pending consideration and disposition of Williams v. Superior Court, S227228 (see Cal. Rules of Court, rule 8.512(d)(2)), which raises the following issues:   (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

After issuing a temporary stay of a discovery order and asking for preliminary opposition, the Court of Appeal, First District, Division Four, summarily denied the writ petition.

Lizardo v. Sandeen, S231980—Review granted and transferred—March 9, 2016.

The Court of Appeal, First District, Division Three, dismissed the appeal as untimely because the notice of appeal was filed “far more than 180 days after the . . . judgment.”  The Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to reconsider its ruling in light of California Rules of Court, rule 8.25(b)(1) [“A document is deemed filed on the date the clerk receives it”] and Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172.

Brown v. Superior Court, S232642— Order to Show Cause— March 9, 2015

This case concerns a controversial ballot proposition, Governor Brown’s major prison and parole initiative that would make certain nonviolent felons eligible for early parole.  The California District Attorneys Association sought and obtained a Superior Court order preventing the circulation of the initiative for voter signatures.

Governor Brown and other proponents of the measure submitted amendments to the measure, but the trial court ruled the amendments were not, as required by Elections Code section 9002, “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”

The Governor sought emergency writ relief.  The Supreme Court has now issued an order to show cause directing the California District Attorneys Association and Anne Marie Schubert as real parties in interest to show cause why the relief prayed for in the petition for writ of mandate should not be granted.

Review Denied (with dissenting justices)

Sturgeon v. County of Los Angeles, S231977—Review denied [Werdegar, J. voting for review]—March 9, 2016.

Petitioner  brought action against the county for declaratory judgment challenging the county’s compliance with the constitutional requirement that the Legislature prescribe compensation for judges.

The Court of Appeal, Fourth District, Division Three, held in a published decision, Sturgeon v. County of Los Angeles (2015) 242 Cal.App.4th 1437, that (1) legislation generally requiring counties to continue paying supplemental judicial benefits provides for a status quo that may go on indefinitely without offending the state constitution, but (2) the part of the statute providing that a “county is also authorized to elect to provide benefits for all judges in the county” is unconstitutional surplusage.

Depublished

None.

March 11, 2016

Ninth Circuit affirms habeas relief to death row prisoner who lost twice in California’s Supreme Court

The Ninth Circuit yesterday affirmed a district court’s grant of a habeas corpus petition filed by a death row inmate who, years ago, was twice turned down by a divided California Supreme Court (People v. Burton (1989) 48 Cal.3d 843 [direct automatic appeal; 4-3 vote]; In re Burton (2006) 40 Cal.4th 205 [habeas corpus petition; 5-2 vote]).  In Burton v. Davis, the federal appeals court held 2-1 that the California superior court had improperly handled the defendant’s request to represent himself.

March 11, 2016

“Appeals Court Seeks To Influence Calif. High Court Decisions”

We neglected to timely post about the Law360 article [subscription] a few months ago by Horvitz & Levy’s David Moreshead regarding how the Court of Appeal’s views can be made known to the Supreme Court through means other than appellate opinions.

March 10, 2016

Divided Supreme Court holds settling plaintiff can obtain prevailing-party costs

In Desaulles v. Community Hospital of the Monterey Peninsula, a 5-2 Supreme Court today holds that a settling plaintiff who dismisses his or her case in exchange for a monetary payment is the prevailing party for purposes of obtaining litigation costs.  However, the majority opinion by Justice Goodwin Liu stresses this is a “default rule” that applies “only when the parties have not resolved the matter of costs in their settlement agreement or have not stipulated ‘to alternate procedures for awarding costs.’ ”  Additionally, the majority recommends that “trial courts inquire into whether the parties in a given case have resolved the allocation of costs in their settlement agreement, or whether they wish to have the court resolve the issue, before placing a judicial imprimatur on the agreement.”

Justice Leondra Kruger writes in dissent, joined by Justice Kathryn Werdegar.  The dissent reads the applicable statute differently.  Because the statute defines “prevailing party” to include not only “the party with a net monetary recovery,” but also “a defendant in whose favor a dismissal is entered,” the dissent says the plaintiff cannot be entitled to costs as a matter of right.  Instead, the dissent concludes, the case should be governed by another part of the statute, one that gives court’s discretion over costs in “situations other than as specified.”  According to the dissent, this provision “permits courts to take into account special circumstances that may render a costs award inequitable or unjust.”  It’s not a bright-line rule like the majority’s, the dissent admits, but “it is the approach that is most consistent with both the text of the statute and its underlying equitable purposes.”

The court affirms the Sixth District Court of Appeal and disapproves a 2008 opinion by the Second District, Division Five, Court of Appeal, with which the Sixth District had disagreed.

March 9, 2016

Supreme Court issues OSC for Governor’s initiative writ petition

More good news for Governor Jerry Brown regarding his writ petitionBrown v. Superior Court — that seeks to eliminate a roadblock to qualifying his Justice and Rehabilitation Act initiative for November’s ballot.  The governor hasn’t won the case yet, but, after granting a stay 12 days ago, the Supreme Court today issued an order to show cause, meaning the court will decide the writ petition on its merits instead of summarily denying it.  Summary denial is the fate of the vast majority of writ petitions filed in the appellate courts.

The court’s order sets an expedited formal briefing schedule (real parties are to email their return to the writ petition by March 21 and any reply to the return can be submitted by March 28) and keeps the temporary stay in effect.  It is likely the court will then schedule oral argument, possibly for one of its two May calendars.  Time is tight, however.  Presumably, because of the stay, the proposed initiative is currently circulating for signatures, but, according to a Secretary of State document, June 30 is the last day to determine if a measure has qualified for the ballot and, if the schedule is the same as two years ago, early August is the deadline for the Secretary of State to send the voter information guide to the state printer.

The court’s order today is unanimous, except for Justice Leondra Kruger, who was absent with a good excuse.

 

March 9, 2016

Costs opinion filing tomorrow

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

The Desaulles opinion will be the first for cases argued on the January calendar.

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

March 8, 2016

Supreme Court to begin live streaming its oral arguments [UPDATED x2]

In her just concluded State of the Judiciary speech, Chief Justice Tani Cantil-Sakauye mentioned that the Supreme Court will begin live streaming its oral arguments.  There were many other more important things in the speech, but, for appellate practitioners, this is a big deal.  Previously, oral arguments were televised only occasionally, such as when a particularly high profile case was before the court or when the court would hear arguments at a law school.

[Update:  Watch the entire speech here.  The announcement of live streaming starts around 29:50.  The Chief states, “I’m excited to say that soon we will live stream our oral arguments at the Supreme Court.”]

[March 9 update:  coverage of the speech, which is now also available on YouTube, includes articles by Kevin Lee in the Daily Journal [subscription], Cheryl Miller in The Recorder [subscription], and Jonathan Cooper at the Associated Press.  Cooper’s report includes this about live streaming:  “A spokesman for the Judicial Council of California, Cathal Conneely, said officials are planning to livestream the court’s San Francisco arguments in May, but Los Angeles sessions will come later because of technological limitations.”  A year and half ago, we were told that live streaming oral arguments “comes down to two issues:  funding and technology resources.”]

March 4, 2016

No conference held the week of February 29, 2016

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

March 3, 2016

“Using Unpublished Opinions In Calif. High Court Petitions”

Horvitz & Levy’s Jessica Di Palma discusses in Law360 [subscription] an unwritten, but generally accepted, exception to the rule against citing unpublished Court of Appeal opinions.

March 2, 2016

Extending the time to file a rehearing petition

Appellate lawyers regularly (and often successfully) seek additional time from the appellate courts, usually for filing briefs (rule 8.212), and sometimes for such things as designating the appellate record (rule 8.121) or dismissing an appeal after a settlement (rule 8.244).  But what about rehearing petitions?

The Supreme Court today granted the defendant’s request for an extra 6 days to petition for rehearing in People v. Masters, after the court last month affirmed the death sentence in that case.  Can the court do that?  Probably, but the rules are not entirely clear.

The Supreme Court rehearing rule (rule 8.536) provides, “Before the Supreme Court decision is final and for good cause, the Chief Justice may relieve a party from a failure to file a timely petition or answer.”  That suggests that you can get relief after the fact, but not a prospective extension.  However, the rehearing rule doesn’t include an express prohibition of an extension, and that omission is likely determinative, for two reasons.  Generally, rule 8.60 allows the Chief Justice to extend time “to do any act required or permitted under these rules” and the general rule applies “[e]xcept as these rules provide otherwise.”  The rehearing rule does not “provide otherwise,” at least not directly.  Additionally, the rehearing rule is in contrast to the petition-for-review rule (rule 8.500), which does specifically “provide otherwise”; it says, “The time to file a petition for review may not be extended, but the Chief Justice may relieve a party from a failure to file a timely petition for review if the time for the court to order review on its own motion has not expired” (emphasis added).  (By the way, sometimes you can get that relief.)

The same reasoning supports allowing the Court of Appeal to extend the time to file a rehearing petition.  Like the Supreme Court rule, the Court of Appeal rehearing rule (rule 8.268) provides, “Before the decision is final and for good cause, the presiding justice may relieve a party from a failure to file a timely petition or answer,” but does not specifically prohibit an extension.  As a practical matter, however, it might not make sense to ask for extra time in the Court of Appeal.  An extension would squeeze the Court of Appeal because that court’s time to rule on a rehearing petition is much tighter than the Supreme Court’s:  while the Supreme Court can — and routinely does — extend its time to rule by 60 days (rule 8.532), the Court of Appeal doesn’t have that luxury.

March 2, 2016

Justice Kruger has a baby

The Supreme Court today congratulated Justice Leondra Kruger and her husband Baby“on the birth of their healthy baby daughter” yesterday morning.  The court added that it “looks forward to her return to the bench for its April sitting.”

March 2, 2016

April calendar is 89 percent criminal

The Supreme Court’s April calendar in Los Angeles will have nine cases, eight of which are criminal matters, including three automatic death penalty appeals.

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

People v. Castillolopez:  Was defendant’s possession of a concealed and opened pocketknife with the blade in its fully extended position sufficient to sustain his conviction for carrying a concealed dirk or dagger in violation of Penal Code section 21310?
The case is before the court on the People’s petition for review.  It has attracted amicus briefs from the Knife Rights Foundation, the America Knife & Tool Institute, and the Second Amendment Foundation.

People v. Sánchez:  This is an automatic appeal from a March 1995 judgment of death.  The court’s website does not list issues for such appeals.

People v. BecerraContinued from the March calendar, this is an automatic appeal from an October 1997 judgment of death.  The court’s website does not list issues for such appeals, but the court did send out an oral argument focus letter last week stating it would concentrate primarily on the issue whether the trial court arbitrarily revoked the defendant’s self-representation in violation of the 6th and 14th amendments.

Nickerson v. Stonebridge Life Insurance Company:  Is an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 properly included as compensatory damages for purposes of calculating the ratio between punitive and compensatory damages where the fees are awarded by the jury, but excluded from compensatory damages when they are awarded by the trial court after the jury has rendered its verdict?

People v. Sanchez:  Was defendant’s Sixth Amendment right to confrontation violated by the gang expert’s reliance on testimonial hearsay (Crawford v. Washington (2004) 541 U.S. 36)?

People v. Hubbard:  Does Penal Code section 424 apply only to public officers who are charged with the receipt, safekeeping, transfer, or disbursement of public moneys, or does the statute apply to a public officer who authorizes the disbursement of public funds even if the actual authority to approve the disbursement lies elsewhere?  As in Castillolopez, it was the People who petitioned for review.

People v. Conley:  Does the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), which reduces punishment for certain non-violent third-strike offenders, apply retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not final until after that date?

People v. Wade:  Is a defendant carrying a firearm “on his person” within the meaning of Penal Code section 25850, subdivision (a), if he is wearing a backpack containing a firearm?

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

 

February 29, 2016

Cert denied in affordable housing case

The US Supreme Court announced today it will not review the California Supreme Court’s decision of last June in California Building Industry Association v. City of San Jose.  The state high court rejected a constitutional challenge to a San Jose ordinance that requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price affordable to low or moderate income households.  Justice Clarence Thomas filed an opinion concurring in the certiorari denial.  He stated the petitioner in the case could have raised, but didn’t, an issue that presumably would have gotten his vote.  It’s an issue, he says, about which lower courts have been in conflict for over 20 years and the conflict “shows no signs of abating.”

February 28, 2016

Summary of February 24, 2016 conference report for civil cases

In its conference on Wednesday, February 24, 2016, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

February 26, 2016

Supreme Court gives Governor Brown a stay

When the Supreme Court late yesterday ordered expedited preliminary briefing on Governor Brown’s writ petition seeking to get his Justice and Rehabilitation Act initiative into circulation for voter signatures, the court did not act on the governor’s request for an immediate stay, which would apparently have cleared the way for signature gathering.

Today, the Governor’s attorneys sent the court a letter saying an immediate stay really is needed, well, immediately.  The there’s-no-time-to-lose letter included a declaration from the owner of a petition circulation firm, explaining how it “has become increasingly difficult to gather signatures for initiative measures.”  The real parties in interest responded with their own letter.  The court also received five amicus letters in support of the governor.

Late today, the court issued a temporary stay order pending final determination of the writ petition.  The Attorney General is thus now apparently free to issue the circulating title and summary for the proposed initiative so that voters can start signing petitions. We don’t know if that part of the Attorney General’s office will be working this weekend.

February 26, 2016

Leaping over a golden opportunity

The Supreme Court will not file any opinions on Monday.  Too bad.  It’s been 20 leap dayyears since the court last issued an opinion on a Leap Day.  And, if the court continues to file opinions only on Mondays and Thursdays, there won’t be another chance for a Leap Day filing until 2024.

 

February 25, 2016

No stay, but expedited supplemental briefing, for governor’s writ petition

The emergency writ petition that Governor Brown filed today, seeking to get his Justice and Rehabilitation Act initiative into circulation for voter signatures, claimed that if the Supreme Court didn’t issue a stay by tomorrow, it might be impossible to qualify the initiative for this November’s ballot.  Early this evening, the court set an expedited supplemental briefing schedule for the writ proceeding, but did not stay yesterday’s superior court order that is preventing signature gathering.

The court is requiring the real parties in interest to email preliminary responses to the writ petition — in searchable electronic form — by 5:00 p.m. Monday.  The court’s order says the responses “should address all issues presented in the petition . . ., including whether original relief is necessary in this court rather than the Court of Appeal because this matter presents issues of broad public importance that require speedy and final resolution.”  Governor Brown and the other two initiative proponents will then have until 4:00 p.m. the following day to email a reply.

 

February 25, 2016

Governor Brown seeks urgent Supreme Court intervention regarding ballot measure [UPDATED x3]

The Supreme Court had just yesterday finished its review of one controversial ballot proposition, when another one landed on its docket today.  Governor Jerry Brown is asking the Supreme Court to overturn a superior court order, filed yesterday, that the Sacramento Bee calls “a major setback for Gov. Jerry Brown’s sweeping prison and parole initiative.”  The order, which was sought by the California District Attorneys Association, prevents the circulation for voter signatures of an initiative that would make certain nonviolent felons eligible for early parole.

The governor’s emergency writ petition in Brown v. Superior Court is available here, and the two-volume appendix in support of the petition is available here and here.  Attorney General Kamala Harris — a real party in interest in the writ proceeding — has already filed a letter supporting the writ petition.

From a very quick review of these materials, it appears the primary issue concerns the application of a recent change in the initiative process.  The submission to the Attorney General of a proposed initiative now begins a 30-day public review period, during which the initiative proponent can “submit amendments to the measure that are reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”  (Elections Code, section 9002.)  It looks like Governor Brown submitted amendments that the superior court found to be not germane.

The governor bypassed the Court of Appeal with his writ petition because of exigent circumstances – the petition reports that the governor’s “signature-gathering firm has advised [the governor and two other proponents] that it may become impossible to qualify the measure in time for the November 2016 election if the Attorney General is prohibited from issuing a circulating title and summary by [tomorrow].”  The petition requests an immediate stay of the superior court’s order.  The Supreme Court will move quickly on this.

[Updated with link to the proposed initiative as proposed to be amended.]

[Evening update: No stay, but expedited supplemental briefing, for governor’s writ petition.]

[Friday evening update:  Supreme Court gives Governor Brown a stay.]

February 25, 2016

Divided court holds “mediation stay” did not toll period for bringing case to trial

In Gaines v. Fidelity National Title Insurance Company, a 5-2 Supreme Court today holds that the parties’ agreement to “stay” proceedings while they mediate the case did not toll the five-year period during which a civil case must be brought to trial.

The majority opinion written by Justice Carol Corrigan concludes that a superior court order — entered based on the parties’ agreement — that struck the trial date “did not effect a complete stay” and did not “create a circumstance of impracticability because plaintiff agreed to it, remained in control of the circumstances, and made meaningful progress towards resolving the case during the stay period.”

Justice Leondra Kruger dissents, joined by Justice Goodwin Liu.  (That dissent and a concurring opinion also filed today are, we believe, the first separate opinions Justice Kruger has written.)  According to Justices Kruger and Liu, the majority improperly “reward[s] plaintiff for working cooperatively with an opposing party by depriving her of her day in court.”

The court affirms the Second District, Division Eight, Court of Appeal.  Like the Supreme Court, the Court of Appeal issued a divided opinion.  Justice Laurence Rubin’s dissent included an extended discussion of the abuse of discretion standard of review by appellate courts.  (The Supreme Court majority today says that it’s not interested in revisiting that issue.)  Because the Supreme Court’s grant of review automatically depublished the Court of Appeal’s opinion — under the rule as currently written — that discussion will not appear in the official reports and, for the most part, will not be citeable.

February 25, 2016

Supreme Court limits multiple burglary convictions

In People v. Garcia, the Supreme Court today limits the circumstances under which a defendant can be convicted of multiple burglaries.  The court’s opinion by Justice Mariano-Florentino Cuéllar holds the defendant was guilty of only one burglary when he entered a store with the intent to commit robbery and then took the robbery victim to a back bathroom and raped her.

Stating that “not all rooms are created equal when it comes to burglary,” the court  concludes, “Where a burglar enters a structure enumerated under [Penal Code] section 459 with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure.”  In a concurring opinion, Justice Leondra Kruger joined by Justice Goodwin Liu, writes “to underscore what [she] understand[s] to be the key points of the majority‘s ruling.”  We believe this is the first separate opinion that Justice Kruger has authored.

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

February 24, 2016

Supreme Court will not order anti-Citizens United measure onto the ballot

The Supreme Court last month ruled the Legislature did have the authority to place on the 2014 ballot an advisory measure about the SCOTUS Citizens United decision, even though the court had earlier removed the measure from that ballot so the court could study the issue.  But the court’s January ruling didn’t automatically put the measure on the 2016 ballot.  The court said the Legislature would have to act again because, the court concluded, the 2014 legislation under review “directs only placement on th[e] [2014] ballot.”

The court’s decision was a big win for the Legislature, but the Legislature still filed a rehearing petition, arguing “it should not have to pass a new measure in order to secure the placement of [the] advisory question on the November 2016 ballot.”

Today, the Supreme Court denied rehearing.  Justice Ming Chin voted to grant the petition, but, because his lone dissent from last month’s decision said the Legislature shouldn’t have any authority to place an advisory proposition on the ballot, his vote today can’t be viewed as anything more than a further protest against the majority’s opinion.

February 24, 2016

Opinions filing tomorrow to answer “what’s a separate burglary?” and “how long does a plaintiff have to bring a case to trial?”

Tomorrow morning, the Supreme Court will file its opinions in Gaines v. Fidelity National Title Insurance Company and People v. Garcia.  These will be the last decisions for cases argued on the December calendar.

Garcia raises the issue whether the defendant committed two burglaries, or only one, when he entered a business with the intent to commit a robbery, then took the robbery victim to the bathroom in the back of the business with the intent to rape her.  Only four justices voted for review in July 2014 — Chief Justice Tani Cantil-Sakauye and Justices Kathryn Werdegar, Carol Corrigan, and Goodwin Liu.

In Gaines, the court will answer the question:  was the action properly dismissed for the failure to bring it to trial within five years or should the period during which the action was stayed for purposes of mediation have been excluded under Code of Civil Procedure section 583.340, subdivision (b) or (c)?
Last summer, the court ordered supplemental briefing on these questions:  1. Did the trial court’s April 3, 2008 order “striking the current Trial Date of September 22, 2008” constitute a stay of the “trial of the action” under Code of Civil Procedure, section 583.340, subdivision (b)?  2. What factors distinguish between a stay of trial and a continuance of trial for purposes Code of Civil Procedure, section 583.340, subdivision (b)?

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

February 23, 2016

Summary of February 17, 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 17, 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

Gehron v. Bank of America, S231447—Review Granted and Held—February 17, 2016.

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

After plaintiffs defaulted on a home mortgage, foreclosure proceedings were instituted and the property was sold at a trustee’s sale. Plaintiffs later filed suit against the foreclosing entities, the parties to the original loan transactions, and the parties to the subsequent foreclosure sale, asserting several causes of action. The trial court sustained defendants’ without leave to amend. The Court of Appeal, Fourth District, Division Two, affirmed in an unpublished opinion.

Gehron v. Nicholas, S231459—Review Granted and Held—February 17, 2016.

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

Plaintiffs are property owners who defaulted on a real estate loan. The gravamen of their action is that defects in the securitization or assignment of the loan documents and in the substitution of trustee deprived defendants of the authority to foreclose. The trial court sustained defendants’ demurrers without leave to amend. The Court of Appeal Fourth District, Division Two, affirmed in an unpublished opinion.

Review Denied (with dissenting justices)

Stevens v. W.C.A.B. (Outspoken Enterprise), S230996—Petition Denied—February 17, 2016.

The Court of Appeal First District, Division One, held in a published opinion, Stevens v. W.C.A.B. (2015) 241 Cal.App.4th 1074, that an employer in a workers’ compensation proceeding may appeal the result of the utilization review (UR) process to the independent medical review (IMR) board. The court held that the IMR process did not violate the due process provisions of the California Constitution, the IMR process was not unconstitutional, and the IMR process did not violate the federal due process clause. Justice Cuellar voted to grant review.

Depublished

None.

February 22, 2016

Supreme Court unanimously affirms death penalty for 30-year-old killing

The Supreme Court today affirms the death penalty in People v. Masters.  The defendant was convicted of the 1985 murder of a San Quentin prison guard.  The court’s opinion is written by Justice Goodwin Liu.

February 19, 2016

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Masters, an automatic appeal from a July 1990 judgment of death.  Masters was argued on the November calendar, but the case wasn’t submitted until almost four weeks after the argument, when supplemental briefing was completed.

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

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.

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.