March 18, 2014

Chief Justice warns of “a different type of civil rights crisis”

In her third State of the Judiciary address yesterday, which can now be viewed online, Chief Justice Tani Cantil-Sakauye used more of a soft-sell approach than in the past in asking the Legislature to restore enormous cuts from the judiciary’s budget.  The Chief Justice waited until near the end of her speech to bring up the subject, drawing laughs when she told the legislators, “many of you keen listeners out there may notice that I have not said anything yet about fully funding the judicial branch.”  At that point, however, the Chief Justice said that the judiciary has “a lot of catching up to do” and, after having earlier discussed the 50th anniversary of the Civil Rights Act, stated that California now faces “a different type of civil rights crisis,” one that is “not about the law,” but “about access to it.”

Before beginning her speech, the Chief Justice thanked soon-to-be-retired Justice Joyce Kennard for her 25 years of service on the Supreme Court.  The legislators responded with a standing ovation.

March 17, 2014

Catch the State of the Judiciary Address live on the California Channel

Chief Justice Tani Cantil-Sakauye will be delivering her second State of the Judiciary address this afternoon at 4:00 p.m.  You can watch it live on the California Channel.

March 13, 2014

Summary of March 12, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 12, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.  This week, as we have already noted, the Court granted the Ninth Circuit’s request to answer a certified question of state law.

Review Granted

Burdick v. Superior Court (Sanderson), S215455—Review Granted and Transferred—March 12, 2014

The question presented is whether a trial court’s exercise of personal jurisdiction over a nonresident defendant in a lawsuit alleging defamation via a social networking website violates the Due Process Clause. The plaintiffs, California residents who operate a skin care products company, published a blog post containing derogatory statements about a competing company and its products. The defendant, an Illinois resident and consultant for the plaintiffs’ competitor, challenged plaintiffs’ veracity in a Facebook post. The plaintiffs sued for defamation. The defendant moved to quash service on the ground that he lacked the requisite minimum contacts with California for a California court to assert personal jurisdiction over him.  The trial court denied the motion, and the Court of Appeal denied his subsequent writ petition.

The Supreme Court granted review and transferred the matter to the Court of Appeal, Fourth District, Division Three, with directions to vacate its order denying mandate and to issue an order to show cause why the relief sought in the petition should not be granted in light of Walden v. Fiore (2014) 571 U.S. __ [134 S.Ct. 1115 ].  (Disclosure:  Horvitz & Levy LLP represents the defendant/petitioner in Burdick.)

Review Denied (with dissenting justices)

Parthemore v. Col, S215802—Review Denied [Werdegar, J., voting for review]—March 12, 2014

In this negligence action by a prisoner against an independently contracted prison optometrist, the question presented was whether the plaintiff was required to exhaust administrative remedies before bringing his negligence action in state court. The trial court held that the plaintiff failed to exhaust his administrative remedies, and sustained the defendant’s demurrer without leave to amend.

In a published opinion, Parthemore v. Col (2013)  221 Cal.App.4th 1372, the Court of Appeal, Third District, affirmed and held the requirement for a prisoner to exhaust administrative remedies before seeking relief from the courts applies to claims against a prison’s independent contractors. The court rejected the plaintiff’s argument that, by analogy to the Government Claims Act, claims against independent contractors should be excluded from the exhaustion of administrative remedies requirement. The court reasoned that a plaintiff’s obligation to exhaust administrative remedies was independent of the requirements outlined in the Government Claims Act.  In addition, the regulations governing the state prisons’ administrative grievance process do not expressly exclude claims against independent contractors.

Depublished

None.

Granted Ninth Circuit’s Request to Answer Certified Question of State Law

Kilby v. CVS Pharmacy, S215614—Request Granted—March 12, 2014

The Supreme Court granted the Ninth Circuit’s request under California Rules of Court, rule 8.548, to answer a certified question of California law.  In a single opinion concerning two cases—Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA—the federal court asked for help interpreting two California Wage Orders, which “require that an employer provide ‘suitable seats’ to employees ‘when the nature of the work reasonably permits the use of seats.’ ”  (Kilby v. CVS Pharmacy (9th Cir. 2013) 739 F.3d 1192.)  The putative class plaintiffs in Kilby are store cashiers, while those in Henderson are bank tellers.  In both cases, the plaintiffs alleged that their employers’ failure to provide seats during work hours violated the Wage Orders. The Ninth Circuit has requested answers to the following questions:

“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) [of the Wage Orders]?”

March 12, 2014

Sage advice for effective brief writing from appellate judges and U.S. Supreme Court practitioners

Since we all know that effective brief writing is what defines a good appellate lawyer, we recommend that you review this post from the Inverse Condemnation blog.  The post summarizes several tips for effective writing gleaned from the panel presentation, “Preparing an Effective Appellate Brief: The Judicial Advocate Perspective.”  The program, sponsored by the ABA Council of Appellate Lawyers, took place last month at the ABA’s Midyear Meeting in Chicago.  The panelists were Judge Catharina Haynes of the Fifth Circuit, Justice Barbara Jackson of the North Carolina Supreme Court, Timothy Bishop of Mayer Brown’s Chicago office, and former Illinois Solicitor General Michael Scodro, now of Jenner & Block’s Chicago office.  The moderator was David Tennant, head of Nixon Peabody’s appellate group.

A link to the program materials is attached to the post.  An audio recording will soon be available to ABA members on the Council of Appellate Lawyers website.

(Disclosure:  Horvitz & Levy partner Brad Pauley (yours truly) is Chair-Elect of the Council of Appellate Lawyers.)

March 12, 2014

Supreme Court will answer Ninth Circuit employment law questions

The Supreme Court today granted the Ninth Circuit’s request to answer California employment law questions.  The case is Kilby v. CVS Pharmacy, Inc.  The questions — concerning suitable seating for employees — can be found in an earlier blog post.  Justice Kennard was recused, but the other six justices all agreed to help out the federal appellate court.

March 12, 2014

Red-light camera, death penalty opinions filing tomorrow

The Supreme Court will file two opinions tomorrow.

In People v. Gray, the court will decide this question about red-light cameras:  Does Vehicle Code section 21455.5, subdivision (b), require a local jurisdiction to provide only one 30-day warning notice period prior to the initial installation of an automated traffic enforcement system, or is such notice required prior to the installation of ATES equipment at each additional intersection within the jurisdiction?

The court will hear argument in another red-light camera case — People v. Goldsmith – next month.

The court will also issue its opinion in People v. Montes, an automatic appeal from a March 1997 judgment of death.

Both Gray and Montes were argued in January.

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

March 11, 2014

The “A” list: It’s not just for celebrities

Perhaps the greatest challenge facing an appellate attorney in the California Supreme Court is to persuade the Court to grant a petition for review.  The first step on that path is to convince the Court’s central staff attorney (who is tasked with reviewing the petition and preparing a conference memo) to place the petition on the “A” list for one of the Court’s weekly Wednesday conferences.

As explained in the Court’s Internal Operating Procedures, “Cases assigned to the ‘A’ list include all those in which the recommendation is to grant or take affirmative action of some kind, e.g., ‘grant and transfer’ or ‘deny and depublish,’ in which a dissenting opinion has been filed in the Court of Appeal, or in which the author believes denial is appropriate, but that the case poses questions that deserve special attention.” On the other hand, if a petition is routine, does not present an important question or involves settled law, the staff attorney relegates it to the “B” list.

It is our understanding that not all published Court of Appeal decisions make it onto the A list.  However, most of the decisions on the A list for any given conference are published.  We also understand that any case in which a Court of Appeal justice has dissented automatically makes the A list.  This explains why, as we noted here, the Court is far more likely to grant review of published decisions and decisions with dissents.

The moral of the story, of course, is to emphasize the published status of the Court of Appeal decision in your petition for review.  We often do that on the petition’s caption page by stating the petition seeks review of “a published decision of the Court of Appeal, ___ District, Division ____.”  You should likewise be sure the reader is aware of any dissenting opinion, perhaps by noting the existence of the dissent in the petition’s introduction, or even in your statement of the question presented.

March 7, 2014

Florida case highlights how important California legislation was in California undocumented immigrant’s bar admission

Florida’s Supreme Court yesterday issued an advisory opinion concluding that undocumented immigrants cannot obtain law licenses in that state.  The California Supreme Court early this year reached the opposite conclusion for this state in In re Garcia.  The Florida opinion makes clear — if there were any doubt — that the dispositive difference between the two states was a statute quickly enacted by the California Legislature to specifically authorize the licensing of otherwise qualified undocumented immigrants.  Because Florida has no similar statute, the Florida court held, federal law precludes bar admission.  Oral argument before the California Supreme Court in the Garcia case strongly indicated that the court was going to reach the same conclusion if the Legislature had not quickly acted.

Relying heavily on the Garcia opinion, a reluctant concurring opinion in the Florida matter urges the Florida Legislature to follow California’s lead, stating that “the Florida Legislature is in the unique position to act on this integral policy question and remedy the inequities that the unfortunate decision of this Court will bring to bear.”

The concurring opinion concludes with an unusually personal observation.  The opinion’s author, Justice Jorge Labarga, was born in Cuba and was brought to the United States when he was 11.  He writes that the “life in the United States” of the applicant who was the catalyst for the court’s advisory opinion, “in many respects parallels my own.”  The defining difference, however, is this:  “When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis—the height of the Cold War—my parents and I were perceived as defectors from a tyrannical communist regime.  Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions.  Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity.”  The opinion ends by saying, “Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question.”

March 7, 2014

A dozen cases for the Supreme Court’s April calendar

The Supreme Court announced two full days of oral arguments when the court returns to Los Angeles next month.  One third of the 12 cases on the calendar are automatic death penalty appeals.

On April 2 and 3, the court will hear the following cases (with the issue(s) presented as stated on the court’s website):

Salas v. Sierra Chemical Company:   Did the trial court err in dismissing plaintiff’s claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff’s use of false documentation to obtain employment in the first instance? Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000; Lab. Code, § 1171.5.)

A year ago, the court asked for supplemental briefing on this issue:  Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of “state labor and employment laws” (Lab. Code, § 1171.5; Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000), an award of compensatory remedies, including backpay? (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137.)

Ayala v. Antelope Valley Newspapers:  This case presents questions concerning the determination of whether common issues predominate in a proposed class action relating to claims that turn on whether members of the putative class are independent contractors or employees.

Last June, the court order the parties to file supplemental briefs discussing the relevance of Martinez v. Combs (2010) 49 Cal.4th 35, 52-57, 73, and IWC wage order No. 1-2001, subdivision 2(D)-(F) (Cal. Code Regs., tit. 8, § 11010, subd. 2(D)-(F)), to the issues in this case. (See also Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639, 660-662; Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1146-1147.)

People v. Brown:  [This is an automatic appeal from a February 1996 judgment of death.  The court's website does not list issues for such appeals.]

People v. Sattiewhite:  [This is an automatic appeal from an April 1994 judgment of death.  The court's website does not list issues for such appeals.]

People v. DeBose:  [This is an automatic appeal from a July 1999 judgment of death.  The court's website does not list issues for such appeals.]

People v. Trinh:  [This is an automatic appeal from an April 2003 judgment of death.  The court's website does not list issues for such appeals.]

Hartford Casualty Insurance Company v. Swift Distribution, Inc.:  Did the allegations of the complaint constitute disparagement for purposes of insurance coverage or the duty to defend under the “advertising injury” provision of defendant’s insurance policy?  [Disclosure:  Horvitz & Levy filed an amicus curiae brief in this case.]

Iskanian v. CLS Transportation of Los Angeles LLC:  (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court’s decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration?  [Disclosure:  Horvitz & Levy filed an amicus curiae brief in this case.]

In re Marriage of Valli:  Did the Court of Appeal err in concluding that an insurance policy on the husband’s life was the wife’s separate property upon dissolution of the marriage, even though the policy was purchased during the marriage and the premiums prior to the couple’s separation were paid with community funds, because the policy listed the wife as the owner?

M. v. Superior Court:  Could the restitution order in this case of felony vandalism for acts of graffiti be based on the victim city’s average cost of removing, cleaning, and repairing incidents of graffiti on an annual basis, or was proof of the actual costs of mitigating the graffiti at issue in this case required?

People v. Scott:  Was defendant entitled to a county jail commitment under the Criminal Justice Realignment Act of 2011 when the trial court imposed and suspended execution of a prison sentence before the Act’s effective date, but revoked probation and ordered execution of the sentence after the Act went into effect?

People v. Goldsmith:  (1) What testimony, if any, regarding the accuracy and reliability of the automated traffic enforcement system (ATES) is required as a prerequisite to admission of the ATES-generated evidence? (2) Is the ATES evidence hearsay and, if so, do any exceptions apply?  [To translate, this is a case about the use of red-light camera evidence.]

March 4, 2014

No conference held the week of March 3, 2014

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

One of the cases being argued this week is Duran v. U.S. Bank National Association, a wage and hour class action brought by a plaintiff class of 260 current and former “business banking officers” who allegedly were misclassified as outside sales personnel. The trial court entered judgment for the plaintiff class after a bench trial. The employer appealed.

The Court of Appeal, First District, Division One, reversed in a published decision, Duran v. U.S. Bank Nat. Assn. (2012) 203 Cal.App.4th 212, holding the trial court abused its discretion when it denied the defendants’ motion to decertify the class. The court held the trial court violated the defendant’s due process rights by deciding class-wide liability based on evidence relating to a 10 percent sample of class members, particularly given the large margin of error in the sampling and the lack of randomness in the sample selection.

The questions presented are: (1) whether a defendant has a due process right to obtain an individual determination of its exemption defense for every class member; and (2) whether class-wide liability may be imposed based on statistical sampling or other forms of representative evidence.  [Disclosure: Horvitz & Levy has filed an amicus curiae brief in this case.]

For more about the case, including a link to the briefs, check out this blog post from The UCL Practitioner.   This post gives an account of the March 4 argument.

UPDATE:  You also might find interesting this Los Angeles Times article about another case argued March 4, Long Beach Police Officers Association v. City of Long Beach, which concerns whether the names of police officers involved in on-duty shooting incidents are subject to disclosure under the California Public Records Act.

 

February 28, 2014

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Jackson, an automatic direct appeal from a February 2000 death penalty judgment.  Jackson was argued in December.

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

 

February 27, 2014

Summary of February 26, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 26, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Poole v. Orange County Fire Authority, S215300—Review Granted—February 26, 2014

The question presented is whether daily logs, kept by a fire captain for the captain’s use in preparing annual evaluations of firefighters, fall under the ambit of the Firefighters Procedural Bill of Rights (FFBOR), Government Code section 3255, such that a firefighter may request to have negative comments deleted from the daily logs under Government Code section 3256.5, subdivision (c).

The Court of Appeal, Fourth District, Division Three, held in a published decision, Poole v. Orange County Fire Authority (2013) 221 Cal.App.4th 155, that the daily logs qualified as files to be used for personnel purposes as contemplated by the FFBOR and therefore were subject to the protective procedures of the statute.

Horne v. International Union of Painters and Allied Trades, S215870—Review Granted and Held—February 26, 2014

The question presented is whether, in an employment discrimination case, the “after-acquired evidence” doctrine—which bars consideration of evidence bearing on an employer’s motive not to hire, which evidence was unknown to the employer at the time the decision not to hire was made—bars evidence that an applicant was not qualified for the position.

The Court of Appeal, First District, Division Four, held in a published opinion, Horne v. District Council 16 International Union of Painters and Allied Trades (2013) 221 Cal.App.4th 1132, that the after-acquired evidence doctrine did not bar admission of evidence of an applicant’s statutory disqualification for the position because the applicant first had to establish a prima facie case before the after-acquired evidence doctrine could apply.  The applicant was statutorily unqualified for the position, notwithstanding the employer’s lack of knowledge of the disqualification.  Therefore, summary judgment was proper because the applicant was unable to establish a prima facie case for racial discrimination. The Supreme Court granted review but deferred further action pending its consideration and disposition of a related issue in Salas v. Sierra Chemical, S196568.

Bristol-Myers Squibb v. Superior Court (Anderson), S216098—Review Granted and Transferred—February 26, 2014

The question presented is whether, in light of the U.S. Supreme Court’s holdings in Daimler AG v. Bauman (2014) 571 U.S. ___ [134 S.Ct. 746] and Goodyear Dunlop Tire Operations, S.A. v. Brown (2011) 564 U.S. ___ [131 S.Ct. 2846, 180 L.Ed.2d 796], the federal Due Process Clause permits a California court to assert general jurisdiction over an out-of-state corporate defendant when California is neither the corporation’s principal place of business nor its state of incorporation.

The Supreme Court granted review and transferred the matter to the Court of Appeal, First District, Division Two, directing the court to vacate its order denying mandate and to issue an order to show cause why the defendant’s relief should not be granted.

Review Denied (with dissenting justices)

None.

Depublished

None.

February 25, 2014

Hoping to honor a pioneering civil rights plaintiff

The Inyo Register reports on plans to honor Alice Piper with a statue in front of Big Pine High School.  Piper was the successful teenage, Native American plaintiff in a segregated-schools case that the Supreme Court decided 90 years ago.  The court’s opinion didn’t go as far Piper wanted, but it was an incremental step forward for racial equality.

In Piper v. Big Pine School District (1924) 193 Cal. 664, the court reviewed a statute that in the same sentence gave school districts the authority both to “exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases” and also to “establish separate schools for Indian children and for children of Chinese, Japanese or Mongolian parentage.”  If a school district established separate schools for those students, the statute provided that the children “must not be admitted into any other school.”

Piper challenged the constitutionality of the statute after the school district excluded her from its high school because “she is a person of Indian blood” and because the federal government maintained a nearby school for “members of the Indian race.”  The Supreme Court balked at taking on the then accepted separate-but-equal judicial philosophy:  “The establishment by the state of separate schools for Indians, as provided by the statute, does not offend against either the federal or state Constitutions. Questions of racial differences have arisen in various forms in the several states of the Union and it is now finally settled that it is not in violation of the organic law of the state or nation, under the authority of a statute so providing, to require Indian children or others in whom racial differences exist, to attend separate schools, provided such schools are equal in every substantial respect with those furnished for children of the white race.”

However, despite its acceptance of segregated schools in principle, the court did grant Alice Piper the relief she requested because there was no adequate separate school available to her.  The federal school didn’t qualify because it was not under state control.  The court held that excluding Piper from the district’s high school with no available separate school would deprive her of her educational rights under the state constitution that, the court said, declares “the advantages and necessities of a universally educated people as a guaranty and means for the preservation of the rights and liberties of the people.”  The court said that those rights applied to Piper because, among other things, ”[s]he is the descendant of an aboriginal race whose ancient right to occupy the soil has the sanction of nature’s code.”

The statue honoring Piper and her historic lawsuit is only in the planning stages and the school district is seeking funding for the project through Kickstarter.  The superintendent makes a compelling case on video for donations.

February 22, 2014

Social host liability opinion filing Monday

On Monday, the Supreme Court will file its opinion in Ennabe v. ManosaArgued in December, the case raises these issues:  (1) Is a person who hosts a party at a residence, and who furnishes alcoholic beverages and charges an admission fee to uninvited guests, a “social host” within the meaning of Civil Code section 1714, subdivision (c), and hence immune from civil liability for furnishing alcoholic beverages?  (2) Under the circumstances here, does such a person fall within an exception stated by Business and Professions Code section 25602.1 to the ordinary immunity from civil liability for furnishing alcoholic beverages provided by Business and Professions Code section 25602, subdivision (b)?

The Supreme Court solicited an amicus curiae brief from the Department of Alcoholic Beverage Control 16 months after the case was fully briefed.  Review was granted almost three years ago.

The Ennabe opinion can be viewed online Monday beginning at 10:00 a.m.

February 21, 2014

Recent developments in California arbitration appeals

Back in 2007, the California Supreme Court’s decision in Gentry v. Superior Court held that where employees assert unwaivable state statutory wage claims subject to an arbitration agreement that precludes any attempt to pursue those claims on a classwide basis, this waiver of a class procedure is unenforceable if individual arbitration could not as effectively vindicate the employee’s substantive rights under California’s Labor Code.

Subsequently, the U.S. Supreme Court decided AT&T Mobility LLC v. Concepcion, which imposed significant restrictions on state contract defenses (like unconscionability and public policy) that limit the enforceability of arbitration agreements governed by the Federal Arbitration Act (FAA).  In 2012, the California Supreme Court granted review in Iskanian v. CLS Transportation of Los Angeles, an arbitration appeal that calls on the court to decide whether the FAA preempts Gentry under Concepcion.

Today, the U.S. Supreme Court is scheduled to decide whether to take up the same question in CarMax Auto Superstores, LLC v. Fowler.  In CarMax, the California Court of Appeal concluded that Gentry remains good law after Concepcion—the same question squarely presented in the Iskanian appeal.  Nonetheless, the California Supreme Court declined to grant review and hold the unpublished CarMax decision pending its resolution of Iskanian.  Consequently, the employer filed a cert. petition with the U.S. Supreme Court challenging Gentry’s continuing vitality.  That petition was distributed for the Court’s conference today and we may know as early as Monday whether or not the U.S. Supreme Court will once again step in, as it has done in the past, to decide the extent to which the FAA preempts California arbitration law.

The U.S. Supreme Court is also set to consider yet another California arbitration appeal next week: Sonic-Calabasas A, Inc. v. Moreno.  Several years ago, the California Supreme Court concluded that the arbitration agreement in Sonic-Calabasas could not be enforced as written on public policy and unconscionability grounds because the agreement waived advantages consisting of certain procedures that California laws made available to employees who pursue wage claims before the Labor Commissioner’s office through a so-called “Berman” administrative process.  But, at the time of this decision, the California Supreme Court did not have the benefit of Concepcion and, in response to an earlier cert. petition, the U.S. Supreme Court vacated and remanded Sonic-Calabasas I for reconsideration in light of Concepcion.

On remand, the California Supreme Court issued its first decision addressing the impact of Concepcion and its progeny on California arbitration law.  The employer has since filed a cert. petition challenging the California Supreme Court’s new unconscionability ruling in Sonic-Calabasas II, and that petition has been distributed for the U.S. Supreme Court’s conference on February 28, 2014.

In the meantime, the California Supreme Court this week called for supplemental briefing in Sanchez v. Valencia Holding Co., an arbitration appeal in which the court will have a chance to examine California’s unconscionability doctrine and perhaps the extent to which it is preempted by the FAA after Concepcion.

This new order in Sanchez states: “The parties and interested persons and entities are invited to file supplemental briefing on the following questions. In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including ‘unreasonably favorable’ to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); ‘so one-sided as to shock the conscience’ (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); ‘unfairly one-sided’ (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; ‘overly harsh’ (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and ‘unduly oppressive’ (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925). Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one? Are there any terms the court should not use? Is there a formulation not included among those above that the court should use? What differences, if any, exist among these formulations either facially or as applied? The parties are directed to serve and file simultaneous letter briefs on this issue on or before March 12, 2014. If any party or existing amicus curiae chooses to reply to the points raised in the supplemental briefs, the supplemental reply is to be served and filed on or before March 19, 2014. In addition, any interested person or entity is invited to serve and file an application to file an amicus curiae brief, and that brief itself, by March 12, 2014. Any party may serve and file a reply to such a brief on or before March 19, 2014.”

[Full disclosure: Horvitz & Levy has filed amicus briefs in support of the parties who moved to compel arbitration in Sonic-Calabasas, Sanchez, and Iskanian—including an amicus brief in support of Sonic-Calabasas' recent cert. petition—and presented oral argument in support of the employer in Sonic-Calabasas.]

February 21, 2014

Summary of February 19, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 19, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Parker v. State of California, S215265—Review Granted—February 19, 2014

The State of California’s petition for review presents the following issues: (1) Did the Court of Appeal err by finding statutes regulating handgun ammunition unconstitutional in a pre-enforcement facial challenge? (2) What is the proper standard of review in a pre-enforcement facial vagueness challenge to a criminal statute regulating the sale of ammunition? (3) Must a statute use an objective standard for measuring compliance to satisfy constitutional vagueness principles?

In 2009, the Legislature passed legislation regulating the commercial sale, display, and transfer of handgun ammunition. The legislation requires that handgun ammunition be sold face-to-face, that identification (including a thumbprint from the buyer) be provided at the time of purchase, and that the seller maintain records of handgun ammunition sales.

Respondents filed suit for injunctive relief, claiming that they could not tell what calibers of ammunition were “principally for use” in a handgun as indicated by the statute. In an opinion certified for publication, Parker v. State of California (2013) 221 Cal.App.4th 340, the Fifth District Court of Appeal agreed, declaring the statutes unconstitutionally vague.

Martinez v. Joe’s Crab Shack Holdings, S214864—Review Granted and Held—February 19, 2014

The case presents the following issue: Whether the Court of Appeal erred in concluding that individual issues of proof should not bar class certification of overtime pay claims of a class of managerial employees.

Current and former employees of different Joe’s Crab Shack restaurants sought to represent a class of salaried managerial employees, claiming they had been misclassified as exempt employees and were entitled to overtime pay. The trial court denied class certification on the grounds that the plaintiffs had failed to establish (i) their claims were typical of the class, (ii) they could adequately represent the class, or (iii) common questions predominate among the class claims such that a class action is the superior means of resolving the litigation. In a published opinion, Martinez v. Joe’s Crab Shack Holdings (2013) 221 Cal.App.4th 1148, the Court of Appeal, Second District, Division Seven, reversed and remanded.

The Supreme Court granted review but deferred further action pending its consideration and disposition of a related issue in Duran v. U.S. Bank National Assn. (S200923). Duran presents issues concerning the certification of class actions in wage and hour misclassification litigation and the use of representative testimony and statistical evidence at trial of such a class action.

Review Denied (with dissenting justices)

None.

Depublished

None.

Supplemental Briefing Requested

Sanchez v. Valencia Holding Company, S199119—Supplemental Briefing Requested—February 19, 2014

The case presents the following issue: Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. 4, 179 L.Ed.2d 742 [131 S.Ct. 1740], preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

The Supreme Court requested supplemental briefing on which standard the Court should use for determining whether a contract or contract term is substantively unconscionable.  The Court has used a variety of terms, including “unreasonably favorable” to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); “so one-sided as to shock the conscience” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); “unfairly one-sided” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; “overly harsh” (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and “unduly oppressive” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925).  In light of these variations, the Court has asked the parties, interested persons, and entities for briefing on the following questions: (1) Should the Court only use one formulation, and if so, which one? (2) Are there any terms that the Court should not use?  (3) Is there another formulation that the Court should use?  (4) What differences, if any, exist among these formulations, either facially or as applied?

February 19, 2014

3-opinion filing day for the Supreme Court tomorrow

Tomorrow morning, the Supreme Court will issue three opinions.  The three cases were all argued last month.

In Fahlen v. Sutter Central Valley Hospitals, the court will decide whether a physician must obtain a judgment through mandamus review setting aside a hospital’s decision to terminate the physician’s privileges prior to pursuing a whistleblower retaliation action under Health and Safety Code section 1278.5.  [Disclosure:  Horvitz & Levy filed an amici curiae brief supporting the defendant.]

In People v. Infante, the issue is:  Did the Court of Appeal correctly determine that defendant committed independent felonious conduct that elevated his otherwise misdemeanor firearm possession to a felony and supported the charge of being an active participant in a criminal street gang in violation of Penal Code section 186.22, subdivision (a)?

People v. Rodriguez is an automatic appeal from a January 2004 judgment of death.

The three opinions can be viewed online tomorrow beginning at 10:00 a.m.

February 19, 2014

Articles laud Justice Kennard’s long service on the California Supreme Court

In the wake of Justice Joyce Kennard’s recent announcement that she will be stepping down in April after 25 years on the Court, articles praising her years of public service continue to pour in.

Among the best, check out this interesting retrospective by The Recorder’s Scott Graham and Cheryl Miller.  The article summarizes Kennard’s meteoric rise from a World War II Japanese internment camp to become California’s first Asian-American Supreme Court justice—and only the second woman ever to serve on the Court.  Graham and Miller suggest Kennard will be remembered for her lack of any doctrinaire judicial ideology, which made it difficult to predict how she would vote in any particular case.  But they write she will also be remembered for the force of her thoughtful dissents—which often influenced later changes in the law—and for her strong work ethic.  In particular, Graham and Miller note, Kennard led a six-year project to modernize California’s appellate rules.  They quote Horvitz & Levy partner (and frequent At the Lectern blogger) David Ettinger, who served on Justice Kennard’s Appellate Rules Revision Project Task Force, as saying: “ ‘That’s an important part of her legacy that won’t appear in the casebooks.’ ”

Also check out Bob Egelko’s recent article in the San Francisco Chronicle, assessing some of Justice Kennard’s most important opinions.  Egelko suggests that a passage in Kennard’s concurrence to the Court’s 2008 decision striking down California’s laws against same-sex marriage sums up her judicial philosophy: “ ‘The architects of our federal and state constitutions understood,’ Kennard wrote, ‘that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular groups, and that the most effective remedy for this form of oppression is an independent judiciary.’ ”  (Hat tip to The UCL Practitioner for flagging the article.)

We also recommend listening to this interview that Justice Kennard recently gave to Southern California Public Radio.  In it, she expresses “gratitude” and says:  “Whatever success I may have achieved I owe to America.”

February 14, 2014

Summary of February 11, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Tuesday, February 11, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

In re Brianna M., S214955—Review Granted—February 11, 2014

This case presents the following issue: If one man seeking presumptive father status in a dependency action has completed a voluntary declaration of paternity under Family Code section 7573, and another man seeking presumptive father status has satisfied the criteria of Family Code section 7611, subdivision (d), is the voluntary declaration of paternity controlling as a matter of law?

The biological father of an eight-year-old girl and the man who had raised the girl since she was an infant each sought presumptive father status at a dependency hearing. Both men arguably met the statutory criteria for presumptive father status: the biological father had executed a voluntary declaration of paternity when the girl was born, and the man who had raised the girl had a “presumption” of paternity because he had “receive[d] the child into his home and openly [held] out the child as his natural child.” The juvenile court granted presumptive father status to the man who had raised the girl because he had a well-established parental relationship with her, while the biological father did not.

In an opinion certified for publication, In re Brianna M. (2013) 220 Cal.App.4th 1025, the Court of Appeal, Second District, Division Four, affirmed, holding that, “for dependency purposes, a voluntary declaration of paternity executed by one man does not, as a matter of law, extinguish another man’s presumed father status.”

Marriage of Davis, S215050—Review Granted—February 11, 2014

The Court limited review to the following issue: For the purpose of establishing the date of separation under Family Code section 771, may a couple be “living separate and apart” when they reside in the same residence?

In a published decision, In re Marriage of Davis (2013) 220 Cal.App.4th 1109, the Court of Appeal, First District, Division One, held that a couple living in the same residence may be “living separate and apart” for purposes of establishing the date of separation under Family Code section 771. In so ruling, the court disagreed with the majority in In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, that “living apart physically is an indispensable threshold requirement to separation.” Rather the court held it proper to use the two part test for legal separation requiring: (1) “a parting of the ways and have no present intention of  resuming the marital relations,” and (2) “conduct evidencing a complete and final break in the marital relationship.” The Court of Appeal affirmed the lower court’s holding that the two part test was met.

State Department of State Hospitals v. Superior Court, S215132—Review Granted —February 11, 2014

The questions presented are: (1) Did the state comply with the requirement of the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) that it conduct a “full evaluation” of an inmate potentially qualifying as a “sexually violent predator” prior to the inmate’s release? (2) Did the Court of Appeal err in ruling, as a matter of law, that plaintiff could not establish that defendants’ actions were a proximate cause of her injuries?

In a published opinion, State Department of State Hospitals v. Superior Court (2013) 220 Cal.App.4th 1503, the Court of Appeal, Second District, Division Three, held: (1) public entities and their employees are not immune from suit under Government Code Section 845.8, subdivision (a), for beaching mandatory duties; (2)  under the SVPA, the state does not have a mandatory duty to conduct a “full evaluation” or an in-person evaluation for immunity purposes; (3) the state has a non-discretionary mandatory duty to designate two psychiatrists or psychologists, or a combination, to evaluate each inmate for release; (4) the connection between the defendants’ failure to comply with the SVPA requirement and the plaintiffs’ injuries was too attenuated for proximate cause to exist; and (5) the victim’s sister, as a citizen of California, has standing to seek a writ of mandate to compel the state to comply with the mandatory duties imposed by the SVPA.

Review Denied (with dissenting justices)

None.

Depublished

Frye v. County of Butte, S215699—Depublished Court of Appeal Opinion—February 11, 2014

This case involved two consolidated proceedings arising from the seizure by animal control officers of horses they believed to be at risk.  The issues in this case were: (1) whether a document entitled “Statement of Decision” was the final judgment of the first trial court resolving all issues presented by the initial petition; (2) whether the parties timely filed their notices of appeal and cross-appeal; (3) whether the “law of the case” doctrine bound the second trial court to the standards set by the first trial court; and (4) whether the administrative hearing was properly conducted on remand.

In Frye v. County of Butte (2013) 221 Cal.App.4th 1051, the Third District Court of Appeal ruled, on the first issue, that the “Statement of Decision” decided all necessary issues, as the  first three causes of action were adequately addressed by ordering new administrative hearings, and that ruling “impliedly rejected the claim in the fourth cause of action that [Penal Code] section 597.1 was facially unconstitutional, because the new hearings were designed in part to determine the lawfulness of the County’s actions in these particular cases.”  On the second issue, the court also held the “Statement of Decision” was the final judgment and, therefore, the parties had not timely appealed.  The court also held the second judgment, issued nearly one year later by the first trial court, was a nullity, and did not extend the time for appeal.  On the third issue, the court held the “law of the case” doctrine only applies to prior appellate court rulings, not to trial court rulings.  Regarding the fourth issue, the court held the administrative hearing was properly conducted on remand, the hearing officers determined the evidence demonstrated reasonable cause for the officers to believe immediate seizure was necessary, and no new evidence was needed to comply with the first trial court’s ruling.

February 14, 2014

Daily Journal floats list of possible replacements for the retiring Justice Kennard

As we mentioned earlier this week, Justice Joyce Kennard is stepping down from the Court after 25 years of service.  In yesterday’s Daily Journal [subscription required], Emily Green floated a list of possible candidates to replace Justice Kennard.  The list is necessarily a series of educated guesses since, as Green notes, Governor Brown “keeps a famously tight circle of advisors, and unlike previous governors does not publicly announce his short list of candidates for the state Supreme Court.”  Green’s list is informed by the fact that the Court is dominated by Northern Californians and, perhaps more critically from a political perspective, includes no Latinos or African Americans despite the fact that those groups make up 37 percent and seven percent of the state’s population, respectively.

The following is Green’s list of possible replacements for Justice Kennard:

Thomas Saenz, President and General Counsel of the Mexican-American Legal Defense and Educational Fund (MALDEF), headquartered in Los Angeles.  Green quotes Saenz as saying he would welcome the appointment of “ ‘someone with a deep understanding of the Latino community’s experience within the state.’ ”

Rachel F. Moran, dean of the UCLA School of Law.  Dean Moran is a Latina who, Green reports, has “written extensively on critical race theory.”

Justice Miguel Marquez, who was appointed by Governor Brown to the Sixth District Court of Appeal in 2012.  “At 45,” Green writes, Marquez “is reportedly the youngest judge on the state appellate court.”

Mariano-Florentino Cuellar, a professor at Stanford Law School.  Green notes that Cuellar is young, having graduated from Yale law school in 1997.  He has worked for President Obama as a special assistant for Justice and Regulatory Policy.

Justice James Humes, who was appointed by Brown to the First District Court of Appeal in 2012.  Green reports that Humes is the first openly gay judge on California’s appellate courts and, in the past, has been an advisor to the Governor.

U.S. District Judge Yvonne Gonzalez Rogers, who was appointed by President Obama to the Northern District of California in 2011.  Before that, she was in private practice in San Francisco.

Justice Jeffrey W. Johnson of the Second District Court of Appeal.  Johnson is African-American.  The Court has been without an African-American justice since Janice Rogers Brown stepped down in 2005 to take a seat on the U.S. Court of Appeals for the D.C. Circuit.

Other potential short-list candidates noted by Green—who were suggested as possible replacements for Justice Carlos Moreno when he retired in 2011—include: Justices Martin Jenkins and Maria P. Rivera of the First District Court of Appeal, Presiding Justice Dennis M. Perluss of the Second District Court of Appeal, Dean Kevin Johnson of UC Davis School of Law, and Christopher David Ruiz Cameron, a professor at Southwestern Law School.

UPDATE:  Check out this post from our friends at Southern California Appellate News.  We especially enjoyed the suggestion that any potential appointee would have to interview with California’s First Dog, Sutter Brown.