March 11, 2016

Summary of March 9, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 9, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

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

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

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

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

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

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

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

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

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

Review Denied (with dissenting justices)

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

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

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

Depublished

None.

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March 11, 2016

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

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

March 11, 2016

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

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

March 10, 2016

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

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

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

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

March 9, 2016

Supreme Court issues OSC for Governor’s initiative writ petition

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

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

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

 

March 9, 2016

Costs opinion filing tomorrow

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

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

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

March 8, 2016

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

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

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

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

March 4, 2016

No conference held the week of February 29, 2016

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

March 3, 2016

“Using Unpublished Opinions In Calif. High Court Petitions”

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

March 2, 2016

Extending the time to file a rehearing petition

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

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

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

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

March 2, 2016

Justice Kruger has a baby

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

March 2, 2016

April calendar is 89 percent criminal

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

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

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

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

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

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

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

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

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

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

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

 

February 29, 2016

Cert denied in affordable housing case

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

February 28, 2016

Summary of February 24, 2016 conference report for civil cases

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

February 26, 2016

Supreme Court gives Governor Brown a stay

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

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

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

February 26, 2016

Leaping over a golden opportunity

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

 

February 25, 2016

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

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

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

 

February 25, 2016

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

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

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

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

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

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

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

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

February 25, 2016

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

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

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

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

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

February 25, 2016

Supreme Court limits multiple burglary convictions

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

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

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

February 24, 2016

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

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

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

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

February 24, 2016

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

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

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

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

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

February 23, 2016

Summary of February 17, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 17, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

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

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

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

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

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

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

Review Denied (with dissenting justices)

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

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

Depublished

None.

February 22, 2016

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

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

February 19, 2016

Death penalty opinion filing Monday

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

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

February 18, 2016

Supreme Court gives defaulting homeowners additional tool to fight foreclosures

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

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

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

February 18, 2016

Another death penalty unanimously affirmed

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

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

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

February 17, 2016

Foreclosure-standing and death penalty opinions filing tomorrow

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

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

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

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

February 15, 2016

No conference held the week of February 8, 2016

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

February 14, 2016

Speculation about a California Supreme Court justice being promoted

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

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

February 11, 2016

Death penalty unanimously affirmed

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

February 10, 2016

Summary of February 3, 2016 conference report for civil cases

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

Review Granted

None.

Briefing Requested

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

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

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

Review Denied (with dissenting justices)

None.

Depublished

None.

February 10, 2016

March calendar: two cases added, one case continued

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

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

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

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

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

February 10, 2016

Death penalty opinion filing tomorrow

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

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

February 5, 2016

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

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

February 4, 2016

Four cases on the March calendar

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

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

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

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

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

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

February 4, 2016

Two death penalty judgments unanimously affirmed

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

February 3, 2016

Two death penalty opinions filing tomorrow

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

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

February 1, 2016

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

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

February 1, 2016

Supreme Court broadens bail forfeiture possibilities

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

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

January 29, 2016

Summary of January 27, 2016 conference report for civil cases

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

Review Granted

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

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

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

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

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

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

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

Review Denied (with dissenting justices)

None.

Depublished

None.

 

January 29, 2016

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

On Monday morning, the Supreme Court will file its opinion in People v. Safety National Casualty Corp., which was argued on the November calendar.  The case raises the issue whether Penal Code section 977, subdivision (b)(1), may be utilized to determine if a proceeding at which a defendant charged with a felony failed to appear was a proceeding at which the defendant was “lawfully required” to appear for purposes of forfeiting bail under Penal Code section 1305, subdivision (a)(4).

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

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

January 28, 2016

“California Decides to Go It Alone on Taxes”

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

January 28, 2016

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

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

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

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

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

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

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

January 25, 2016

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

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

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

January 22, 2016

Summary of January 20, 2016 conference report for civil cases

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

Review Granted

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

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

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

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

Review Denied (with dissenting justices)

None.

Depublished

None.

January 22, 2016

New California Supreme Court Historical Society newsletter

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

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

January 22, 2016

PUC opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Monterey Peninsula Water Management District v. California Public Utilities Commission, which was argued on the November calendar.  The case raises the issue whether the Public Utilities Commission has the authority to review and regulate a user fee imposed by a local government entity that is collected through the bills of a regulated public utility.

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

January 21, 2016

Antideficiency statute protected short-selling homeowner

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

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

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

January 21, 2016

Death penalty affirmed despite disagreement about unrelated-murder evidence

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

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

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