September 3, 2015

Anti-Citizens United initiative case to be argued in October

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

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

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

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


September 3, 2015

No conference held the week of August 31, 2015

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

September 2, 2015

A look at the “new” Supreme Court’s first six months

We can now do a six-month assessment of the impact of the recent personnel changes at the Supreme Court.  New Justices Mariano-Florentino Cuéllar and Leondra Kruger were sworn in on January 5, but this can be called a six-month review because the court has just finished issuing opinions in all cases argued between January and June.  So far, the new justices’ effect on the outcome of the court’s cases has been limited.

When Governor Jerry Brown swore in Justices Cuéllar and Kruger, he said, “What I’m looking for is insight and growing wisdom over time so we can create a measure of harmony in what is a very conflicted society.”  Harmony is probably the key attribute of the court since January.

Of the 50 opinions issued in cases argued from January to June, there were disagreements about a disposition in only 7 cases, and one of those 7 — People v. Nguyen — hardly counts because Justice Cuéllar there agreed with the affirmance of the death penalty, but thought the court should have reversed one of many of the defendant’s convictions.  In only four would the outcome have changed had retired Justices Joyce Kennard and Marvin Baxter both voted differently than their replacements.  (And two of those cases — People v. Blackburn and People v. Tran — could be counted as one, because they raised closely related issues and were decided at the same time.)

In each of the six cases where there was a serious disagreement with the result, Justice Ming Chin was in the minority.  He dissented alone in People v. Le (concerning firearm and gang enhancements) and In re R. V. (minor’s competency to stand trial).  In the cases where Justices Cuéllar and Kruger’s votes with the majority possibly made a difference in the outcome, Justice Chin dissented with Chief Justice Tani Cantil-Sakauye in People v. Prunty (criminal street gang enhancement) and in People v. Blackburn and People v. Tran (automatic reversal because of inadequate jury trial waivers), and with Justice Carol Corrigan in Lee v. Hanley (statute of limitations for actions against attorneys).

There were also a number of cases with what could be called grudging concurrences, that is, agreements with the majority’s bottom line but not enough agreement to sign the majority opinion.  Justice Chin wrote two of those separate opinions, in California Building Industry Association v. City of San Jose (affordable housing ordinance) and Sanchez v. Valencia Holding Co. (the enforceability of arbitration agreements), and Justice Corrigan did so in Prunty.  But Justice Goodwin Liu is the grudging-concurrence leader, alone in Coffey v. Shiomoto (DUI evidence) and J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company (insurer suit against Cumis counsel for excessive fees), with Justice Kruger in People v. Scott (Batson juror exclusion challenges), with Justices Kathryn Werdegar and Kruger in State Department of State Hospitals et al. v. Superior Court (public liability for murder committed by a parolee), and with Justice Cuéllar in People v. Leon (jury questionnaire and voir dire).

One case in which the addition of Justices Cuéllar and Kruger to the court definitely made a difference is People v. Grimes.  The court granted rehearing in that death penalty case, which had been decided hours before the new justices joined the court. Although they had not participated in the opinion, Justices Cuéllar and Kruger were able to rule on the rehearing petition and they voted with the dissenters — Justices Werdegar and Liu — to rehear the case.  Of course, the result in Grimes, which has yet to be re-argued, ultimately might not change, because a vote for rehearing doesn’t guarantee a vote for a different outcome.

Although the addition of the new justices led to a rehearing in Grimes, it’s notable that there were four other cases in which Justices Cuéllar and Kruger could have caused a rehearing, but did not.  In each of those cases, Justice Kruger didn’t vote for rehearing; Justice Cuéllar voted for rehearing in two of them.

Justice Kruger has also been more reticent than Justice Cuéllar in voting for review.  We believe she has recorded a dissenting vote from the denial of a petition for review only once.  Justice Cuéllar has done so at least three times. (Here, here, and here.)

The addition to the court of Justices Cuéllar and Kruger has thus likely changed case outcomes, but the number of those cases has been limited, at least so far.

August 28, 2015

Another post-review publication order

We said a while ago that it is very unusual for the Supreme Court to use its authority to order republished a Court of Appeal opinion after the opinion has been automatically depublished by the grant of review.  Just earlier this month, when the court exercised that power, we were still assuring that it really is a rarely used power.  It now seems like we’ve been in denial.  On Wednesday, the court again ordered a Court of Appeal opinion republished, seven weeks after it had dismissed review in the case, Hilton v. Superior Court.

The increase in republication orders might be a function of litigants only recently being aware that they could ask for such an action.  In any event, republication is now clearly a viable option after review is dismissed in a case.  Viable, that is, unless and until the court adopts a pending rule proposal, which would essentially render the post-review publication power a dead letter because the court’s grant of review would then no longer automatically depublish a Court of Appeal opinion in the first place.

There is an interesting aspect of the latest republication.  The case was a grant-and-hold, waiting for the Supreme Court’s opinion in the lead case — People v. Ford.  The now-republished Court of Appeal opinion, however, decides an issue that the Supreme Court did not reach in Ford, even though it looked like the court had granted review in Ford to resolve the issue.  Has the Supreme Court, by its republication order, now endorsed the Hilton decision and thus resolved an issue without an opinion (sort of like the court did when, also on Wednesday, it denied a Ninth Circuit request for an answer to a state law question, but nonetheless cited a recent Court of Appeal opinion in its denial order)?  Rule 8.1120(d) says you can’t read that message into the republication order, but it’s hard not to draw the inference.


August 28, 2015

Summary of August 26, 2015 conference report for civil cases

In its conference on Wednesday, August 26, 2015, for the first time since last October, 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.

August 27, 2015

Divided court reverses street gang enhancement

A 5-2 Supreme Court today reverses a criminal-street-gang enhancement that was added onto sentences for attempted voluntary manslaughter and assault with a firearm.  People v. Prunty concerns the organizational structure of street gangs and their affiliates, and what showing the prosecution must make to establish a defendant acted for the benefit of a gang.  The four-justice majority opinion written by Justice Mariano-Florentino Cuéllar, for himself and Justices Kathryn Werdegar, Goodwin Liu, and Leondra Kruger, concludes that “when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang’s alleged subsets, it must prove a connection between the gang and the subsets.”

Chief Justice Tani Cantil-Sakauye, joined by Justice Ming Chin, would affirm the enhancement.  In her concurring and dissenting opinion, the Chief Justice chides the majority for reweighing the evidence and not giving sufficient deference to the jury’s factual determinations.  Justice Carol Corrigan also writes a concurring and dissenting opinion, but she agrees with the majority that the evidence was inadequate to support the gang enhancement.  However, she disagrees “with any suggestion that different [gang] subsets must acknowledge each other as part of a larger group, or that the umbrella group and a subset must somehow ‘mutually acknowledge’ each other.”

The court reverses the Third District Court of Appeal.  It finds itself in sync with a 2009 Fifth District Court of Appeal opinion, with which the Court of Appeal in this case disagreed.  But the court disapproves a 2006 Third District Court of Appeal opinion and a 2003 Sixth District Court of Appeal opinion.

August 27, 2015

Supreme Court unanimously affirms two death penalty judgments

A unanimous Supreme Court today affirms the death sentences of two brothers tried together before separate juries.  In People v. Romero and Self, the court does reverse one robbery conviction of one defendant and vacates several multiple-murder special circumstance findings for both defendants, but there is more than enough left to uphold the death sentences that emanated from what the court calls “a two-month crime spree.”  It also disapproves parts of two of its own recent (2013 and 2014) decisions.  The court’s opinion is written by Justice Kathryn Werdegar.

August 26, 2015

Supreme Court (sorta) rejects Ninth Circuit request for an answer to a state law question

For the first time in over three years, the Supreme Court today said “no” to a Ninth Circuit request to answer a state law question.  The court denied the request in Davis v. Devanlay Retail Group, Inc.  Before today, the court had granted the last nine requests made by the Ninth Circuit.

Two weeks ago, we noted the court was taking an unusually long time to decide whether to take the Davis case.  (It’s been 112 days since the Ninth Circuit’s request was docketed.)  The court’s order today indicates why there was a delay, and also shows that the court is actually answering the Ninth Circuit’s question even while denying the request.

The court said it’s denying the Davis request “[i]n light of the subsequent opinion in Harrold v. Levi Strauss & Co. (2015) 236 Cal.App.4th 1259.”  The court also today denied review and a depublication request in Harrold.  This is obviously not a coincidence; the court believes the Court of Appeal’s Harrold opinion adequately answers the Ninth Circuit’s question in Davis and didn’t want to tell that to the Ninth Circuit until the end of all appellate proceedings in Harrold.   (The court has summarily “answered” Ninth Circuit questions before, although not quite in this way.)

In Davis, the Ninth Circuit asked:  “Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer’s personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card?”  The Harrold opinion — from the First District, Division Three — holds that the statute “is violated only if the request is made under circumstances in which the customer could reasonably understand that the email address was required to process the credit card transaction, and . . . such an understanding could not reasonably be conveyed by a request made after the transaction has been concluded.”


August 26, 2015

Last two opinions for a while are filing tomorrow

Tomorrow morning, the Supreme Court will file its last opinions in cases currently pending after argument.  These two opinions are for cases argued on the June calendar.

People v. Prunty is a criminal street gang participation case.  The court will address whether evidence of a collaborative or organizational nexus was required before multiple subsets of the Norteños can be treated as a whole for the purpose of determining whether a group constitutes a criminal street gang within the meaning of Penal Code section 186.22, subdivision (f)?

People v. Romero and Self is an automatic appeal from August 1996 judgments of death.

This is the time of year for emptying the pipeline of pending, argued cases.  After next week’s arguments, the court will have several more cases in the pipeline, but it could be a month or more before the court files its next opinion.

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

August 24, 2015

Supreme Court unanimously affirms two death sentences, rejects renewed attack on death penalty based on delay

The Supreme Court today affirms two death penalty judgments, in People v. Seumanu and People v. Williams.

The opinion in Seumanu is of particular interest because it addresses and revisits at some length an argument, rejected by the court before but adopted last year by a federal district court, that delay in implementing the state’s death penalty law renders the law unconstitutional.  The appeal of the federal case will be argued before the Ninth Circuit next week, but the Supreme Court is not waiting.  Rather, it accepted supplemental briefing on the issue and today weighs in, to a limited extent.

In a unanimous opinion written by Justice Kathryn Werdegar (and with Second District, Division Seven, Court of Appeal Presiding Justice Dennis Perluss sitting pro tem in place of Justice Carol Corrigan), the court does not address the viability in general of a claim that systemic delay violates the Eighth Amendment bar against “cruel and unusual punishment,” but concludes that, if such a claim is valid, “it has not been proved here” and that the claim is more appropriately presented in a habeas corpus proceeding.  The court says that the result would be different “were the California Department of Corrections and Rehabilitation to ask all capital inmates who have exhausted their appeals to draw straws or roll dice to determine who would be the first in line for execution,” but it finds that “allowing each case the necessary time, based on its individual facts and circumstances, to permit this court’s careful examination of the claims raised is the opposite of a system of random and arbitrary review.”

The Williams opinion, authored by Justice Corrigan, is also unanimous.

August 24, 2015

Firefighters’ employment rights limited; the Supreme Court, and Justice Cuéllar separately, come down on the anti-textualist side of the statutory interpretation debate

The Supreme Court today cuts back on the rights of firefighters to review negative comments about them, and, in the process, also weighs in on a debate about how to construe statutes.  In Poole v. Orange County Fire Authority, a unanimous opinion by Chief Justice Tani Cantil-Sakauye holds that, although the Firefighters Procedural Bill of Rights Act allows firefighters to review and respond to negative comments “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer,” they cannot have access to a daily log kept by a supervisor as a memory aid in preparing performance plans and reviews.  The key to the court’s decision is that “the log was not shared with or available to anyone other than the supervisor who wrote the log.”

Interpreting the legislation at issue, the court adopts an approach that is decidedly anti-textualist.  The court says that the statutory language “might, in isolation, be read broadly enough to include” the daily log as “any other file used for any personnel purposes,” but concludes that “critical to an understanding of [the provision] is its statutory context,” which requires a narrower construction.

Justice Mariano-Florentino Cuéllar writes a concurring opinion to elaborate on the general theme of looking at more than statutory language when interpreting legislation.  “[H]owever important it is to train our attention on the plain meaning of a statutory provision we are construing,” he says, “we must read that provision as we do here — in its larger context — when deciding whether its meaning is plain.”  Justice Cuéllar states, “The devil, in short, is in the details.  And the details are elucidated by context — the statutory structure and the words of surrounding or related provisions.”

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

August 21, 2015

Summary of August 19, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, August 19, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Banning Ranch Conservancy v. City Newport Beach, S227473—Review Granted—August 19, 2015

In an action for writ of administrative mandate, this case presents the following issues: (1) Did a city’s approval of a project comport with its general plan’s directives to “coordinate with” and “work with” the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city’s interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas — as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) — in the environmental impact report for the project?

The Court of Appeal, Fourth District, Division Three, held in a published decision, Banning Ranch Conservancy v. City of Newport Beach (2015) 211 Cal.App.4th 1209, that the trial court correctly determined the City did not violate the California Environmental Quality Act (CEQA), but erred when it held the City violated its general plan. The Court of Appeal ruled it was improper for the trial court to micromanage finely tuned questions of policy and strategy left unanswered by a general plan. The Court of Appeal held cities can opt to include clear, enforceable, substantive requirements in their general plans, but courts should not impose obligations not clearly set forth in the general plan at issue.

Gerawan Farming v. Agricultural Labor Relations Board, S227243—Review Granted—August 19, 2015

This case arises from Agricultural Labor Relations Board (ALRB) proceedings and presents the following issues: (1) Does the Labor Code’s “Mandatory Mediation and Conciliation” (MMC) process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the MMC statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the MMC process by asserting that the union has “abandoned” the bargaining unit?

The Fifth District Court of Appeal reversed a decision of the ALRB and denied a petition for peremptory writ of mandate. It held in a published decision, Gerawan Farming, Inc. v. Agricultural Labor Relations Board (2015) 236 Cal.App.4th 1024, that the MMC process was statutorily and constitutionally unsound and the order stemming from the MMC should be set aside. The court found that the plaintiff company should have been given an opportunity before the ALRB to prove abandonment of the defendant union’s status as the employees’ bargaining representative due to the defendant’s two-decade disappearance. Additionally, the court held that the MMC statute violates equal protection principles and constitutes an improper delegation of authority. The court noted that mediators in charge of an MMC, by design of the MMC statute, set different minimum wages for different companies in the same industry. The court ruled the whole point of the MMC statute is to unconstitutionally single out one employer and create a special set of rules for that employer in violation of the equal protection principals.

Tri-Fanucchi Farms v. Agricultural Labor Relations Board, S227270—Review Granted—August 19, 2015

This is another case arising from ALRB proceedings. This case presents the following issues: (1) May an employer assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union?

The Fifth District Court of Appeal held in a published decision, Tri-Fanucchi Farms v. Agricultural Labor Relations Board (2015) 236 Cal.App.4th 1079, that there was no defense to excuse the employer from its obligation to bargain in good faith with United Farm Workers (UFW). Instead, the employer’s remedy was dependent on its employees. If the employees no longer wish to be represented by UFW, their recourse is to replace UFW by a new election. The court distinguished this case from Gerawan Farming, Inc. v. Agricultural Labor Relations Board (2015) 236 Cal.App.4th 1024, discussed above, by pointing out that the present dispute arose out of the ordinary bargaining process instead of through the “Mandatory Mediation and Conciliation” (MMC) process in Gerawan.

Williams v. Superior Court, S227228—Review Granted—August 19, 2015

Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issues: (1) Is the plaintiff in a representative action under the Labor Code’s Private Attorneys General Act of 2004 (PAGA) 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?

The Court of Appeal, Second District, Division One, held in a published decision, Williams v. Superior Court (2015) 236 Cal.App.4th 1151, that it would not lightly bestow statewide discovery power to a litigant who has only a parochial claim. The court held the trial court’s measured approach to discovery, which was to compel the employer to produce contact information for only the employees who worked at the plaintiff’s location, was reasonable. The court denied the plaintiff’s petition for writ of mandate.

Friends of the Santa Clara River v. County of Los Angeles, S226749—Review Granted and Held—August 19, 2015

The Supreme Court ordered briefing deferred pending its decision in Center for Biological Diversity v. Department of Fish & Wildlife, S217763, which presents the following issues: (1) Does the California Endangered Species Act supersede other California statutes that prohibit the taking of “fully protected” species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (CEQA)? (2) Does CEQA restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report (EIR)? (3) May an agency deviate from CEQA’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business as usual” baseline?

In an unpublished decision following a petition for writ of administrative mandate, the Court of Appeal, Second District, Division Five, affirmed a county’s certification of a final project EIR for a major residential development, its approval of a general plan, and various permits for the project. The court held the county’s conclusion—that the project would have no significant adverse hydromodification and sediment transport impacts—to be supported by substantial evidence produced by a wide array of credentialed scientists after extensive research and collaboration.

Review Denied (with dissenting justices)



Baez v. California Public Employees’ Retirement System, S227537—Depublished—August 19, 2015

The Reporter of Decisions was directed not to publish in the Official Appellate Reports the opinion in Baez v. California Public Employees’ Retirement System (2015) 236 Cal.App.4th 836. There, the Court of Appeal, Second District, Division Two, addressed whether a plaintiff who alleges he was treated differently because he is Latino may state a claim for relief under the anti-affirmative action provision originally enacted as Proposition 209 and now codified in Article I, section 31 of the California Constitution. The Court of Appeal held that the plaintiff did not state a cause of action under section 31 because he was not challenging a preferential treatment program.

August 21, 2015

FireFighters Procedural Bill of Rights, two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two cases argued on the late-May calendar — the last opinions for cases from that calendar — and in one case argued on the June calendar.

In Poole v. Orange County Fire Authority, the court will decide whether a daily log about firefighters, which was maintained by a supervisor and used by the supervisor to prepare annual performance evaluations, qualified under the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250 et seq.) as a personnel file and/or as a file used for personnel purposes.

People v. Seumanu is an automatic appeal from a December 2000 judgment of death.

People v. Williams is an automatic appeal from an August 1998 judgment of death.

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

August 20, 2015

Major national appellate summit to be held in Washington, D.C. this November

The Appellate Judges Education Institute (AJEI) is holding its twelfth annual nationwide appellate Summit at the Omni Shoreham Hotel in Washington, D.C. on November 12 through 15, 2015. The summit is co-sponsored by the Appellate Judges Conference of the ABA and its constituent organizations, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys.

This year, as in previous years, the four day gathering will offer attendees some of the best appellate practice-oriented CLE available anywhere. The Summit will begin with a conversation with Supreme Court Justice Stephen G. Breyer, followed by programs on such topics such as appellate writing, oral argument, amicus briefing, and statutory interpretation, as well as a 50 year retrospective on the Voting Rights Act of 1965. In addition, attendees can look forward to Dean Erwin Chemerinsky’s engaging review of the U.S. Supreme Court’s recent decisions and programs on a host of other subjects of great interest to appellate lawyers, judges, and staff attorneys. Check out the Summit’s program for a complete overview of the available appellate CLE opportunities and registration information.

In addition to excellent speakers and programs, there will be numerous social events, including a can’t-miss cocktail reception at the Great Hall of the Supreme Court and off-site tours of the nation’s capital, as well as breakfasts, lunches, cocktail mixers, a Summit dinner, and dine-arounds. These events will provide plentiful opportunities to meet appellate judges and lawyers from around the country. In past years, approximately 100 appellate judges, 100 appellate attorneys, and 75 appellate staff attorneys have attended the Summit. Given its location in the nation’s capital, this year’s summit is expected to be exceedingly well attended. So register early. (Full disclosure: Horvitz & Levy partner Brad Pauley is Chair of the ABA’s Council of Appellate Lawyers.)

August 20, 2015

Supreme Court unanimously overrules itself in insurance assignment case

The Supreme Court today overrules its own 12-year-old, 6-1 decision in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934, holding that a statute not considered in Henkel leads to a different conclusion about when an insurance carrier can object to an insured’s transfer or assignment of a claim for insurance coverage.  The court’s unanimous opinion in Fluor Corporation v. Superior Court, written by Chief Justice Tani Cantil-Sakauye, finds that the statute “bars an insurer from refusing to honor an insured’s assignment of policy coverage regarding injuries that predate the assignment.”  [Disclosure:  Horvitz & Levy represents the real party in interest, Hartford Accident & Indemnity Company.]

Of the current members of the court, only Justice Kathryn Werdegar participated — and concurred — in the court’s Henkel decision.  Retired Justice Carlos Moreno was the lone dissenter.

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

August 20, 2015

Divided court limits scope of attorney statute of limitations

A 5-2 Supreme Court today holds that a client’s claim against her former lawyer for conversion — based on allegations the lawyer refused to return unearned fees after his representation was terminated — might not be covered by a special statute of limitations applicable to “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.”  In Lee v. Hanley, the majority opinion — written by Justice Goodwin Liu for Chief Justice Tani Cantil-Sakauye and Justices Kathryn Werdegar, Mariano-Florentino Cuéllar, and Leondra Kruger — concludes that the statute applies “when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation — that is, an obligation the attorney has by virtue of being an attorney — in the course of providing professional services.”  Some of the client’s claims are barred under this rule, the majority says, and the statute of limitations “cover[s] more than claims for legal malpractice,” but proof of the conversion allegation “may not depend on the assertion that [the attorney] violated a professional obligation.”

Justice Carol Corrigan dissents for herself and Justice Ming Chin.  The majority looks mostly to the statute’s purpose and legislative history, which Justice Corrigan says is an analytic mistake.  The case “is largely resolved by the language of the statute, which the majority opinion discusses only sparingly,” she concludes.  According to her, the statute should “govern[ ] any claim against an attorney, except for actual fraud, that is based on the attorney’s wrongful conduct in performing professional services” and “the wrongful conduct must have some close and logical relationship to those professional services.”

The court affirms the Court of Appeal, Fourth District, Division Three.  It disapproves a 2014 opinion by the Court of Appeal, Second District, Division Three, and a 1988 decision of the Court of Appeal, First District, Division Four.


August 19, 2015

Insurance assignment, attorney statute of limitations opinions filing tomorrow

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

Fluor Corporation v. Superior Court raises the issue whether the limitations on assignment of third party liability insurance policy benefits recognized in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 are inconsistent with the provisions of Insurance Code section 520.  [Disclosure:  Horvitz & Levy represents the real party in interest.]

In Lee v. Hanley, the court will decide if the one-year statute of limitations for actions against attorneys set forth in California Code of Civil Procedure section 340.6 applies to a former client’s claim against an attorney for reimbursement of unearned attorney fees advanced in connection with a lawsuit.

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

August 18, 2015

“The Jurisprudence of Justice Roger Traynor”

The UC Hastings College of Law is hosting a book release event for “The Jurisprudence of Justice Roger Traynor,” which is billed as “a collection of Traynoressays describing and assessing the groundbreaking work of Justice Traynor, the twenty-third Chief Justice of California and one of the preeminent judges of twentieth-century America.”  The book was edited by Professor Geoffrey Hazard. Reservations for the event, which will occur during the afternoon of September 2, can be made here.

August 17, 2015

Harmless error issue splits the court in jury trial waiver cases

The Supreme Court has been relatively harmonious of late, but one point of contention arises in determining whether trial court error is harmless or requires reversal.  That fault line appeared clearly in People v. Grimes, a 4-3 death penalty case in which the court granted rehearing in March.  And it is apparent again in the two opinions the court issues today, with Justices Kathryn Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar, Leondra Kruger, and, mostly, Carol Corrigan on one side, and Chief Justice Tani Cantil-Sakauye and Justice Ming Chin on the other.

In People v. Blackburn, the court today holds that a trial court must personally advise a mentally disordered offender defendant of his or her right to a jury trial on the issue of extending the defendant’s involuntary commitment, and that the court “must obtain a personal waiver of that right from the defendant”; counsel’s waiver of that right is not enough “unless the court finds substantial evidence — that is, evidence sufficient to raise a reasonable doubt — that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision.”

The trial court in Blackburn didn’t give the required advice and get the necessary waiver (instead of the defendant himself, the defendant’s counsel waived a jury trial), and all seven justices agree that was error.  The disagreement is about the consequences of the error.

The majority opinion, written by Justice Liu and joined by Justices Werdegar, Corrigan, Cuéllar, and Kruger, equates the error with “the denial of a jury trial” and holds that “the error constitutes a miscarriage of justice and automatically requires reversal.”  In her separate opinion, Chief Justice Cantil-Sakauye writes for herself and Justice Chin that the state constitution “generally eschew[s] the application of an automatic or reversible per se harmless error standard to state law error” and concludes that an automatic reversal, “where it is highly unlikely that the defendant was unaware of the right to a jury trial or would have requested a jury trial over his or her counsel’s contrary advice, fails to respect the history and purpose of California’s distinct constitutional harmless error provision.”  She says that the majority “does not realistically come to grips with the difference between the limited errors that occurred in this case and a complete deprivation of the right to jury trial that would arise when a defendant who expresses a wish to be tried by a jury is denied that right.”

In People v. Tran, the same 5-2 majority, in an opinion again authored by Justice Liu, reaches the same conclusion as in Blackburn, this time regarding jury trials in proceedings to extend involuntary commitments of those pleading not guilty by reason of insanity to a criminal offense.  The Chief Justice again concurs and dissents, for the same reasons as in her separate opinion in Blackburn.  She says “[t]here is simply no reasonable basis for finding the court’s failure to personally advise Tran of his right to a jury trial and to elicit an on-the-record waiver of that right affected the outcome in this case.”

So, why do we say that Justice Corrigan “mostly” sides with the majority on the harmless error issue?  Because, although she signs the court’s opinion, she does not join a separate concurring opinion in Blackburn that Justice Liu writes for himself and Justices Werdegar, Cuéllar, and Kruger.  (Concurring opinions signed by a majority of the court are a bit odd, but it happens.)  The concurring opinion responds directly to the Chief Justice’s separate opinions in Blackburn and Tran, discussing in detail the history of the state constitutional provision — article VI, section 13 — that requires a miscarriage of justice before there can be a reversal.  The concurrence says that the Blackburn and Tran decisions “follow from the text, history, and purpose of section 13 as well as this court’s consistent and longstanding interpretation of that provision.”

In both Blackburn and Tran, the court reverses the Sixth District Court of Appeal.  Together, the two decisions disapprove a 1999 opinion and a 2004 opinion by the Court of Appeal, Second District, Division Six, a 2001 opinion and a 2002 opinion by the Court of Appeal, Fourth District, Division Two, a 2007 opinion by the Fifth District Court of Appeal, and a 2011 opinion by the Court of Appeal, Fourth District, Division Three.

Blackburn and Tran will not be the last word from the court on harmless error.  People v. Grimes should be re-argued soon.

August 16, 2015

About that rarely used post-review publication power . . .

A few weeks back, the Supreme Court released for public comment a rule proposal to keep review-granted Court of Appeal opinions from being automatically depublished, which is what happens now.  We noted that the Supreme Court can override the current default depublication rule by affirmatively ordering a review-granted opinion published at any time after granting review, but we said it is a power the court only occasionally uses.

Well, funny story — the very same day the court issued the rule change proposal, it also ordered published a Court of Appeal opinion in a case in which review had been granted and held, and then dismissed after a decision in the lead case.

But the publication order was unusual not just because it was the exercise of a rarely used power (really, it is), but also because the order made editorial amendments to a footnote in the Court of Appeal opinion.  The Court of Appeal noted the Supreme Court had before it another similar case (the case that the Court of Appeal opinion would end up being a grant-and-hold for), gave the citation for the (depublished) Court of Appeal opinion in the case, and stated the issue the Supreme Court was going to decide.  The publication order removed the citation and statement of the issue, and it also added a reporter’s note giving the citation for the now-decided Supreme Court opinion in the lead case.

Some have questioned whether the Supreme Court has the authority to change the text in a Court of Appeal opinion, even non-substantively.  But I think the court does have that power.  Article VI, section 14, of the state constitution vests in the Supreme Court the power over publication of Court of Appeal opinions.  Further, in Government Code section 68902, the Legislature has stated that the official reports of appellate opinions “shall be published under the general supervision of the Supreme Court.”  That’s good enough for me.