November 26, 2014

“A bold, young pick for state’s high court”

The Sacramento Bee editorial page likes Governor Brown’s choice of 38-year-old Leondra Kruger for the Supreme Court.  Calling the appointment Brown’s “boldest move yet to infuse the court with new blood and high-powered diversity,” The Bee praises the “effort to invigorate the Supreme Court with a new generation of jurisprudence.  The seven-member bench has long been older and more conservative-leaning than the state as a whole.”

The editorial also notes that the appointments of Goodwin Liu, Mariano-Florentino Cuéllar, and Kruger will drop the court’s average age from 69 to 56, and it thanks the governor “for bestowing three wise new progressive minds on the state bench.”

On the other hand, San Francisco Chronicle commentator Marshall Kilduff is a bit less laudatory in “Jerry Brown’s judges, no experience necessary.”  He questions whether Liu, Cuéllar, and Kruger should be on the Supreme Court even though “[n]one was ever a courtroom judge.”  After Cuéllar’s nomination, a reporter asked the governor whether he was concerned that his nominee had no judicial experience, and Brown responded, “Neither did Earl Warren, nor Chief Justice Roger Traynor, nor did [William O.] Douglas, nor did [Hugo] Black.”

Kilduff also raises a geographical objection to Kruger, who  hasn’t lived in California for some time.  He says about Kruger, “Any state would be lucky to have her on its high court,” but he then asks, “Did the governor consider a resident Californian in a state with 36 million people?”


November 26, 2014

Pitchess motion opinion filing Monday

The Supreme Court will celebrate Cyber Monday by uploading to the court’s website its opinion in Riverside County Sheriff’s Department v. Stiglitz. Cyber Monday

The case raises this issue:  Does the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff’s department have the authority to grant a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531?  In April, the court asked the parties for supplemental briefing on these issues:  (1) Assuming that a motion for discovery of officer personnel records may be filed in an administrative proceeding (Evid. Code, § 1043, subd. (a)), and a hearing officer has authority to determine that the motion states good cause for discovery (Evid. Code, § 1043, subd. (b)(3)), is there any existing statutory mechanism that would allow the matter to be transferred to the superior court for an in camera review of the records by a judicial officer (Evid. Code, § 1045, subd. (b))?  (2) If no existing statutory mechanism applies, do we have the authority to create such a transfer mechanism?

Stiglitz is the last case from the September calendar without an opinion, and Monday is the last filing day within the 90-day period.

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

November 25, 2014

BerkeleyLaw and UC Hastings launch ambitious new California Supreme Court blog; will carry At the Lectern content

Monday evening at the Supreme Court I attended the launch party of SCOCAblog, a new blog devoted to comprehensive coverage of the California Supreme Court and the California Constitution. The blog is the brainchild of Prof. David Carrillo, founder of BerkeleyLaw’s California Constitution Center, in partnership with the faculty of UC Hastings College of the Law. The blog’s launch is, of course, particularly timely in view of Governor Brown’s recent appointments to the Court.

We wish SCOCAblog and its founders all success in this worthwhile endeavor. When we launched At the Lectern more than four years ago, we explained the need for a blog to cover our high court in the following terms:

California has the ninth largest economy on the globe and produces everything from computers to feature films to world renowned wines and produce. The Golden State is ethnically, racially, culturally and linguistically diverse. In short, California is a microcosm of the world.

The California Supreme Court sits at the apex of the vast judicial system that has primary responsibility for resolving legal disputes for the state’s 38 million residents, as well as millions of others who come to California each year for business or pleasure. The Chief Justice of the Supreme Court has primary responsibility for overseeing the administration of that system. The Supreme Court regularly construes statutes enacted by the Legislature, resolves disagreements among the Courts of Appeal and decides contentious and often divisive issues that affect the lives of vast numbers of people.

We are particularly pleased to report that we have an agreement in principle whereby SCOCAblog will carry some of At the Lectern’s content in the near future. We look forward to a long and productive association.

November 25, 2014

Press coverage of Kruger appointment

A sampling of articles about yesterday’s appointment of Leondra Kruger to the Supreme Court:

Emily Green in the Daily Journal [subscription] calls Governor Brown’s choice of a third young progressive the extension of “a generational and ideological transformation of the state Supreme Court.”  The article also notes that, according to Professor Gerald Uelmen, Kruger will be the second youngest justice ever on the court, after a 26-year-old named in 1851.  She gets high marks from former acting U.S. Solicitor General Neal Katyal who is quoted as calling her “as good a lawyer with whom I have ever worked in my life.”

Cheryl Miller in The Recorder [subscription] reports in “Another Pick for Cal Supremes With Eye-Catching Credentials, No Judicial Seasoning.”

Maura Dolan in the Los Angeles Times quotes Professor Uelmen as calling the appointment a “mind blower.”  The article says, “Those who know Kruger’s work in Washington predicted she would add luster and bring greater renown to California’s highest court.”  Former U.S. Solicitor General Paul Clement says Kruger is an “outstanding lawyer” and “even better colleague” who “combines an understated and easygoing manner with a keen legal mind and unquestioned integrity.”

Bob Egelko in the San Francisco Chronicle:  “Brown nominee to state high court is fast-rising legal star.”  Saying that “the seating of Brown’s latest appointees seems likely to move its center of gravity leftward,” the article identifies Justice Kathryn Werdegar as “the swing vote in close cases” once Kruger and Justice-elect Mariano-Florentino Cuéllar join the court.  The article also reports another justice — besides the one in 1851 — as having been younger than Kruger:  “37-year-old Terry Ward was chosen by the voters to serve the last month of a retiring justice’s term in 1922.”

David Siders in the Sacramento Bee:  “Gov. Jerry Brown names Obama administration lawyer to California Supreme Court.”  The governor is “continuing to recast the high court with Democratic appointees from outside the judiciary,” the article states.

November 24, 2014

U.S. Deputy Assistant Attorney General Leondra Kruger appointed to Supreme Court

Governor Brown today appointed Leondra Kruger to the California Supreme Court, an appointment which, if confirmed, will fill the vacancy created over seven months ago when Justice Joyce Kennard retired.  Kruger will be the court’s first African-American justice in more than nine years and will again make women justices a majority on the court.kruger_leondra

Like Justice Goodwin Liu and Justice-elect Mariano-Florentino Cuéllar — the two others the governor has named to the court — Kruger is young (she is 38), was previously picked by President Obama (she is currently a Deputy Assistant Attorney General at the U.S. Department of Justice, Office of Legal Counsel), and has no prior judicial experience.

Another thing Kruger has in common with Liu and Cuéllar is an alma mater.  When he appointed Cuéllar, Brown joked that he had “yet to appoint a non-Yale graduate to the Supreme Court” during his second stint as governor.  He keeps that streak alive with Kruger’s appointment.  Kruger was editor-in-chief of the Yale Law Journal.

Also like Liu, Kruger is a former U.S. Supreme Court clerk.  She clerked for Justice John Paul Stevens 10 years ago.

Kruger is an experienced appellate lawyer at the highest level.  Before becoming a Deputy Assistant Attorney General, Kruger served six years as an Assistant to the Solicitor General and as Acting Principal Deputy Solicitor General, arguing 12 cases in the United States Supreme Court.  One of those arguments was in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) 132 S.Ct. 694 [181 L.Ed.2d 650], where the Court held a Lutheran school teacher could not sue a congregation for employment discrimination.  At one point, Justice Scalia called her argument “extraordinary” (around 1:50), but not in a complimentary way.

Although she’s been a Washington, D.C., resident for a while, Kruger was born and raised in the Los Angeles area.  She has been a member of the California bar for over 12 years, although her membership has been inactive for almost 5 years.

Kruger will join the court if her appointment is confirmed by the Commission on Judicial Appointments.  A Commission hearing has not yet been scheduled, but it is likely to be held in time for Kruger to join the court for its January oral argument calendar.  If so, the January calendar will be the first for both her and Justice-elect Cuéllar.

If confirmed, Kruger will face the voters in a retention election in 2018.

November 21, 2014

Summary of November 19, 2014 conference report for civil cases

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

Review Granted

Bristol-Myers Squibb Co. v. Superior Court, S221038—Review Granted—November 19, 2014

This case presents the following issues: (1) Did the plaintiffs in this action who are not residents of California establish specific personal jurisdiction so as to assert their claims against the nonresident pharmaceutical drug manufacturer? (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 571 U.S. __ [134 S.Ct. 746, 187 L.Ed.2d 624]?

In 2012, residents of several states brought several products liability actions against Bristol-Myers Squibb (BMS). They alleged defects in Plavix, a prescription drug BMS manufactures and sells in California and throughout the country. BMS filed a motion to quash service of summons, asserting that its California contacts were insufficient to support general personal jurisdiction because BMS was neither headquartered nor incorporated in California. The trial court found that California had general jurisdiction because, among other things, BMS conducted business in the state, operated five offices and employed about 160 people in the state, and operated multiple research facilities and laboratories in several cities throughout the state. The court declined to address whether California also had specific personal jurisdiction over BMS.

The First District Court of Appeal, Division Two, reversed in a published opinion, Bristol-Myers Squibb Co. v. Superior Court (2014) 228 Cal.App.4th 605. It held that California could not exercise general jurisdiction over BMS. Although BMS had extensive sales and research activities in California, BMS was not headquartered in California, did not maintain its principal place of business in California, and thus was not “essentially at home” in California. However, the court concluded that California had specific jurisdiction because BMS sold nearly $1 billion worth of Plavix in California, had five offices and facilities in California, employed California-based employees and sales representatives, caused both resident and non-resident plaintiffs the same alleged harm, and failed to establish that the exercise of jurisdiction would be unreasonable and in violation of Due Process under the Fourteenth amendment. [Full disclosure: Horvitz & Levy LLP is counsel of record for petitioner Bristol-Myers Squibb Company.] 

Hollingsworth & Vose Company v. Superior Court, S221290—Review Granted & Held—November 19, 2014

The court ordered briefing deferred pending its decision in Bristol-Myers Squibb Co. v. Superior Court, S221038 (see above), which presents the following issue: whether the standard for general personal jurisdiction set forth by the United States Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 131 S.Ct. 2846, 2851, and Daimler AG v. Bauman (2014) 134 S.Ct. 746, 749, limits the scope of general jurisdiction under California law.

The trial court denied Hollingsworth & Vose Company’s (H&V) motion to quash service of summons. It held H&V was subject to general jurisdiction in California because its California sales over the past five years (2009-2013) constituted approximately 6.5% of its total domestic sales; H&V maintains a registered agent in California, and is registered to do business in California; and until 2009, H&V had a sales office in California where a single employee worked as a sales agent. The Court of Appeal, Second District, Division Three, summarily denied H&V’s petition for writ of mandate.  (Kudos to H&V’s counsel for securing a grant-and-hold with just ten days to prepare the petition.)

Review Denied (with dissenting justices)




November 19, 2014

Aiding and abetting murder opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Smith, which will decide whether the defendant was properly convicted of murder under the natural and probable consequences theory of aiding and abetting.

The court asked for supplemental briefing in Smith with this order:  “The trial court’s instructions to the jury included the following sentence:  ‘If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.’  (RT 8283; see CALCRIM No. 402.)  The parties are requested to brief the following questions:  (1) Does this sentence correctly state the law?  (2) If so, is there evidence in the record to support a jury finding that the murders in this case were not committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery?”

Smith was argued on the court’s October calendar.  It will be the first case with a decision from that oral argument session.

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

November 18, 2014

Summary of November 12, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, November 12, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Sandquist v. Lebo Automotive, Inc., S220812—Review Granted—November 12, 2014

This case presents the following issue: Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue?

An African-American car salesman brought individual and class claims against his employer-dealership (among others) for discrimination, a hostile work environment, and constructive discharge. Relying on three arbitration agreements signed by the salesman on his first day of work, defendants filed a motion to compel individual arbitration and to stay or dismiss the proceedings with the trial court retaining jurisdiction to enforce any arbitration award. The trial court granted the motion, dismissing the class allegations because there was no contractual basis to compel class arbitration. It ruled, “Since the plaintiff himself is now going to be subject to individual arbitration, there would no longer be any representative in the lawsuit that would be able to adequately represent a class action to pursue the claims that are asserted by plaintiff.”

In a published opinion, Sandquist v. Lebo Automotive, Inc. (2014) 228 Cal.App.4th 65, the Court of Appeal, Second District, Division Seven, reversed. Limiting its review to the order dismissing the class claims, the court ruled that the trial court erred by deciding whether the parties agreed to class arbitration, and that it should have submitted the issue to the arbitrator.

Shaw v. Superior Court (THC-Orange County, Inc.), S221530—Review Granted—November 12, 2014

This case presents the following issues: (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal? (See Nesbitt v. Superior Court (1931) 214 Cal. 1.) (2) Is there a right to jury trial on a retaliation cause of action under Health and Safety Code section 1278.5?

An employee of a health facility filed suit, alleging that the facility employed unlicensed, uncertified, and insufficiently trained health care professionals, and retaliated against her by terminating her employment. She asserted two causes of action, one for wrongful termination in violation of public policy and one for violation of Health and Safety Code section 1278.5, which protects health care whistleblowers from their employers. Concluding that the statutory cause of action was purely equitable, the trial court denied the employee’s request for a jury trial and then stayed the matter for her to file a petition for writ of mandate.

In a published opinion, Shaw v. Superior Court (2014) 229 Cal.App.4th 12, the Court of Appeal, Second District, Division Three, granted the petition and reversed. Despite the Supreme Court’s holding in Nesbitt (“mandate is not the proper remedy to test the right to a jury trial”), the court concluded that writ relief was appropriate because the case presented “a novel question of statutory interpretation, which is a matter of interest to all plaintiffs who may bring suit under Health and Safety Code section 1278.5.” In addition, because the statute provided for “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law” (emphasis added), the court concluded that the Legislature allowed for both equitable and legal remedies, including a jury trial.

Mendoza v. JPMorgan Chase Bank, S220675—Review Granted & Held—November 12, 2014

The court ordered briefing deferred pending decision in Yvanova v. New Century Mortgage Corp., S218973 (#14-100), 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 purchasing a home with proceeds of a loan secured by a deed of trust, a homeowner lost the home in a nonjudicial foreclosure sale. The homeowner filed suit, asserting causes of action for wrongful foreclosure, declaratory relief, and quiet title. She alleged that the trustee’s sale was void due to defects in the assignment of her deed of trust, irregularities in the substitution of trustees, and flaws in the securitization of her loan. The trial court sustained the banks’ demurrer to her complaint without leave to amend.

In a published opinion, Mendoza v. JPMorgan Chase Bank, N.A. (2014) 228 Cal.App.4th 1020, the Court of Appeal, Third District, affirmed. Among other things, the court held that, in the absence of prejudice, the homeowner lacked standing to challenge irregularities in the securitization process.

Galen v. Redfin Corporation, S220936—Review Granted & Held—November 12, 2014

The court ordered briefing deferred pending decision in Sanchez v. Valencia Holding Co. LLC, S199119 (#12-33), which includes the following issue: Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

Defendant, a Washington corporation, provided residential real estate brokerage services for home buyers and sellers. Pursuant to written agreement, it employed plaintiff, an individual residing in California, as a Contract Field Agent (CFA), who would perform his duties as an “independent contractor.” Plaintiff filed a class action, alleging that defendant improperly classified him and other CFAs as independent contractors, when they served as employees under California law. He alleged violations of the Labor Code and Unfair Competition Laws for unpaid overtime, missed meal and rest periods, inaccurate and untimely wage statements, waiting time periods, and unreimbursed business expenses. Defendant filed a motion to compel arbitration, pointing to the agreement’s arbitration and Washington choice-of-law clauses. Ruling that the arbitration clause was governed by the FAA, and applying California law, the trial court denied the motion because plaintiff alleged statutory violations, which did not fall within the contract, and, alternatively, even if the claims fell within the contract, the arbitration clause was unconscionable and invalid.

In a published opinion, Galen v. Redfin Corporation (2014) 227 Cal.App.4th 1525, the Court of Appeal, First District, Division One, reversed, holding that the arbitration agreement encompassed plaintiff’s claims, and that the arbitration clause was not unconscionable.

Review Denied (with dissenting justices)

Los Angeles Unified School District v. Superior Court (Los Angeles Times Communications), S220908—Review Denied [Baxter, J., voting for review]—November 12, 2014

This case presents the following issue: Does the California Public Records Act (CPRA) require the Los Angeles Unified School District (LAUSD) to disclose the standardized scores used to evaluate its teachers, identifying each teacher by name?

By petition for writ of mandate, the L.A. Times attempted under the CPRA to obtain the confidential, employee evaluation-related Academic Growth over Time scores of individual teachers who work for LAUSD. The trial court held that the CPRA required LAUSD to disclose these unredacted scores and the location codes to identify the school to which each teacher is assigned. LAUSD and United Teachers Los Angeles each filed writ petitions in the Court of Appeal, arguing that the unredacted scores are exempt from disclosure.

In a published opinion, Los Angeles Unified School District v. Superior Court (2014) 228 Cal.App.4th 222, the Court of Appeal, Second District, Division Eight, held that the individual teachers’ scores are exempt from disclosure under the CPRA’s “catch-all” exemption (Gov. Code, § 6255) because “the public interest served by not disclosing the teachers’ names clearly outweighs the public interest served by their disclosure.” It remanded to the trial court for further proceedings regarding disclosure of the location codes.



November 17, 2014

“Gov. Jerry Brown lets state Supreme Court vacancy linger”

Bob Egelko reports in the San Francisco Chronicle that the seven months that Justice Joyce Kennard’s seat has been vacant since her retirement is “an interval that may be unprecedented and is at least the longest in a half century.”  (If you want a handy all-in-one-place guide to this history, see Frances Jones’s excellent “Succession in the California Supreme Court,” in the Spring/Summer 2014 newsletter, pages 19-21, of the California Supreme Court Historical Society.)

According to Egelko, when Brown was asked, the day after the election, about filling the vacancy, he responded, “Soon enough.  I’ve not arrived at a pick yet.”  I thought we’d see an appointment within two weeks of the election (see prediction buried here).  Maybe before Thanksgiving?

November 7, 2014

Supreme Court issues 2013-2014 Workload Statistics Report

The Supreme Court recently issued its Workload Statistics Report for the period September 1, 2013 through August 31, 2014, the official court year for statistical purposes. The report shows that the number of total filings continue to decline in most categories, though there was “a modest increase in petitions for review, civil writ petitions, original petitions for noncapital habeas corpus relief, and State Bar of California matters.” The total number of opinions issued dropped by four to 83 from last year’s total of 87. The decrease is striking when you recall that the Court issued 97 opinions two years ago. So this year’s number reflects a decrease in opinions of nearly 14.5 percent from two years ago.

The Report explains the decrease as being due to two factors: (1) “[t]he ongoing impact of several years of budget reductions to the judicial branch,” which continues to “affect the flow of cases throughout the court system”; and (2) “[t]he lack of a full complement of permanent justices,” occasioned by the retirement of Justice Joyce Kennard in April, which “can affect the court’s ability to efficiently and effectively decide cases.”

The breakdown among the Court’s 2013-2014 opinions is interesting. The Court issued 33 opinions in civil matters, compared to 37 last year (and 27 the year before). The number of noncapital criminal matters continued its decline from 43 two years ago, to 35 last year, and just 25 this year. Much of that decline might be explained by the fact that the Court decided 25 automatic appeals from judgments of death, compared with 18 last year. Contrary to our speculation last year, these numbers do not suggest that the Court has placed much renewed focus on its civil docket, nor can it be said that the Court has a better handle on its capital docket than it has had in prior years.

The Report also documents an increase in attorney discipline dispositions, which went from 790 last year to 909 this year. The Report notes that “the number and variety of [attorney discipline] matters in which [internal conference] memoranda were provided for the court’s consideration has increased significantly over the past few years, and the court has granted review in several State Bar matters, as well as entered orders directing further State Bar review and analysis of a substantial number of matters submitted with disciplinary recommendations.”

The Court ordered 31 Court of Appeal opinions depublished—13 more than last year and “a new high in recent years”—but still well below the triple-digit depublication rate during the tenure of former Chief Justice Malcolm Lucas. The Court ordered just three Court of Appeal opinions published, but that was two more than last year.

November 7, 2014

“New justice opens up after win”

Emily Green has an interesting profile of Professor — and Supreme Court Justice-elect — Mariano-Florentino Cuéllar in today’s Daily Journal [subscription].  Details include that the governor’s office contacted Cuéllar about a Supreme Court appointment in 2011 when Justice Moreno retired; Cuéllar “begged off” and the seat went to Goodwin Liu.  Also, Cuéllar suggests that he will join Liu in using, at least in part, annual law clerks instead of relying solely on career staff attorneys; he stresses the positives both of ” ‘getting an interesting perspective inside the judiciary, as well as preparing people to be ambassadors of the institution and to understand the institution better as they go into practice.’ ”

The photo accompanying Green’s article shows Cuéllar sitting next to a tower of 15 books, none of which seems like blockbuster screenplay material.  Among the books are “Political Order and Political Decay,” “Democracy and Distrust,” “The Oxford Handbook of Political Economy,” “The Winds of Freedom,” and “Still Ours to Lead.”

November 5, 2014

No conference held the week of November 3, 2014

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

November 5, 2014

Three Strikes Reform Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Teal v. Superior Court, which raises the issue whether the defendant had the right to appeal the trial court’s denial of his petition to recall his sentence under Penal Code section 1170.126, part of the Three Strikes Reform Act of 2012, when the trial court ruled he did not meet the threshold eligibility requirements for re-sentencing.

Teal was argued on the court’s September calendar.

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

November 5, 2014

Supreme Court justices retained, confirmed

California voters yesterday overwhelmingly retained Justices Kathryn Werdegar and Goodwin Liu and confirmed Professor Mariano-Florentino Cuéllar for seats on the Supreme Court.  Each won between 66 and 72 percent “yes” votes statewide.  That’s about the same voter approval rates as four years ago when Chief Justice Cantil-Sakauye was confirmed and Justices Chin and Moreno were retained.

Cuéllar will join the court on January 5, when Justice Baxter’s term expires.  Both he and Werdegar will not be on the ballot again until 2026.  Liu does not face the voters again until 2022.  Why?  It’s all explained here.

November 3, 2014

6 cases on the December calendar, in Los Angeles; Justice Baxter’s last [UPDATED]

The Supreme Court is heading south for its December calendar.  It will have been six months since the court heard arguments in Los Angeles.ilovela2

This will be Justice Baxter’s last calendar; he’s retiring when his term ends on January 5.

There’s one very old case on the calendar.  Actually, there are two, but one’s a death penalty appeal and they all have long shelf lives.  The non-death penalty oldie is People v. Mosley, in which the Supreme Court granted review almost four years ago.  How old is it?  Justice Moreno, who left the court in March 2011, voted to grant review in Mosley.

If we did the math right, the six pro tems for the December calendar (or maybe there will be just five, because two of the cases raise related issues and might have the same pro tem) will bring to 51 the number of Supreme Court cases with pro tems since Justice Kennard left the court in April.  How much longer will Justice Kennard’s seat remain vacant?  I’m not good at predictions, but I’ll make one (and bury it inconspicuously in the middle of this post):  the governor will announce an appointment within the next two weeks.

On December 2, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

State Department of Public Health v. Superior Court:  In the context of a request under the Public Records Act (Gov. Code, § 6250) for citations issued by the Department of Public Health to state facilities housing the mentally ill and the developmentally disabled, can the public accessibility provisions for citations issued under the Long-Term Care Act (Health & Saf. Code, § 1417 et seq.) be reconciled with the confidentiality provisions of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) and the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.), and, if so, how?  (With a pro tem to be named later.)

Berkeley Hillside Preservation v. City of Berkeley:  Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?  (Second District, Division Two, Presiding Justice Roger Boren is the pro tem.)

People v. Johnson:  [This is an automatic appeal from a November 2000 judgment of death.  The court’s website does not list issues for such appeals.]  (With a pro tem to be named later.)

State of California v. Superior Court:  Can the California Highway Patrol be considered the special employer of a tow truck driver participating in the Freeway Service Program?  (With a pro tem to be named later.)

People v. Mosley:  Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living “within 2000 feet of any public or private school, or park where children regularly gather” (Pen. Code, § 3003.5, subd. (b)), increase the “penalty” for the offense within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466, and require that the facts supporting the trial court’s imposition of the registration requirement be found true by a jury beyond a reasonable doubt?  In March 2011, the court directed the parties to also brief these issues:  (1) Does Penal Code section 3003.5, subdivision (b), validly create a misdemeanor offense subject to violation by all persons required to register for life pursuant to Penal Code section 290 et seq., regardless of their parole status?, (2) If Penal Code section 3003.5, subdivision (b), is not separately enforceable as a misdemeanor offense, does that section nevertheless operate to establish the residency restrictions contained therein as a valid condition of sex offender registration pursuant to Penal Code section 290 et seq.?  (With a pro tem to be named later.)

In re Taylor:  Does the residency restriction of Penal Code section 3003.5, subdivision (b), when enforced as a mandatory parole condition against registered sex offenders paroled to San Diego County, constitute an unreasonable statutory parole condition that infringes on their constitutional rights?  (With a pro tem to be named later.)

[November 14 update:  The court has announced the remaining pro tems for the December cases.

State Department of Public Health v. Superior Court:  Second District, Division Six, Presiding Justice Arthur Gilbert.

People v. Johnson:  Second District, Division Eight, Justice Elizabeth Grimes.

State of California v. Superior Court:  Fifth District Presiding Justice Brad Hill.

People v. Mosley and In re Taylor:  Sixth District Justice Adrienne Grover.]

October 31, 2014

Summary of October 29, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, October 29, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

In re Isaiah W., S221263—Review Granted—October 29, 2014

This case presents the following issue: Does a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act (ICWA) was unnecessary preclude the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights?

In In re Isaiah W., the Department of Children and Family Services (DCFS) filed a petition to remove a child from his parents’ care after the child was born with a positive toxicology for marijuana. At the dispositional hearing, the juvenile court granted DCFS’s petition. However, the mother told the court the child may have American Indian ancestry, and the court ordered DCFS to investigate the claim. The court subsequently reviewed DCFS’s report, concluding “there was no ‘reason to know’ that [the child] was ‘an Indian child as defined under ICWA.’ ” Neither parent challenged the finding of the juvenile court. The court then terminated all parental rights.

The Court of Appeal, Second District, Division Three, held in a published opinion, In re Isaiah W. (2014) 228 Cal.App.4th 981, that because the mother failed to timely appeal from the juvenile court’s finding, she was foreclosed from raising the issue on appeal.

Dane v. City of Santa Rosa, S221341—Review Granted and Held—October 29, 2014

The court ordered briefing deferred pending decision in Wheatherford v. City of San Rafael, S219567, which presents the following issue: Must a plaintiff have paid or be liable to pay a property tax to a government entity in order to bring a taxpayer waste action against that entity under Code of Civil Procedure section 526, subdivision a, or can the payment of other taxes confer standing?

In an unpublished opinion, Dane v. City of Santa Rosa, the First Appellate District, Division Two, “agree[d] with the various appellate courts that have unanimously held that payment of an assessed property tax is required for an individual to have standing to bring a taxpayer action.”

Review Denied (with dissenting justices)




October 31, 2014

Double jeopardy opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Eroshevich.  The case raises these issues:  (1) If a trial court issues a ruling equivalent to an acquittal after a jury has entered a guilty verdict and the Court of Appeal reverses the trial court’s ruling on appeal, does the trial court’s erroneous acquittal nevertheless bar retrial under principles of double jeopardy if, on remand, the defendant renews an earlier motion for a new trial?  (2) In such circumstances, is the Court of Appeal permitted to direct a trial court to dismiss charges and acquit a defendant if the trial court decides to grant the defendant’s motion for a new trial under Penal Code section 1181?

Eroshevich was argued on the September calendar.

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

October 30, 2014

To have and un-hold

Every Supreme Court grant of review is not necessarily followed by briefing on the merits, an oral argument, and a written opinion.

One thing the court can do is grant review and send the case right back to the Court of Appeal for further action.  This grant-and-transfer option isn’t used often, but, when it is, it is most commonly after the Court of Appeal has summarily denied a writ petition.

The court can also grant review and defer further action in the case “until the court disposes of another matter.”  (Rule 8.512(d)(2).)  These grant-and-hold orders are typically made when the court has already granted review in another case — the lead case — raising the same or similar issue.  A grant-and-hold case normally sits at the court until the lead case is decided, at which time the grant-and-hold case is returned to the Court of Appeal for reconsideration or review in the case is dismissed.

Sometimes, however, the court will change its mind about a grant-and-hold order and decide it wants to issue an opinion in a held case.  That happened yesterday in People v. Franklin.  The court had granted review in June and deferred further action pending disposition of two other cases raising issues regarding Eighth Amendment concerns about long sentences for crimes committed by juveniles.  But, “[t]he court has now determined that it should also order briefing in [Franklin] on the following questions:  (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?”

The court can also un-hold a case when there will no longer be a decision in the lead case.  This has happened in cases handled by our firm, for example in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992.  Flowers was a grant-and-hold for a lead case that later settled before decision.  When we then asked the court to allow briefing in Flowers, the court agreed.  Ten months later, after full briefing and oral argument, the court issued its opinion.  The same un-hold after a lead case settlement happened more recently in Baltazar v. Forever 21, Inc., which is awaiting argument.

October 29, 2014

Death penalty opinion filing tomorrow

The Supreme Court will file tomorrow morning its opinion in People v. Adams, an automatic appeal from a July 2003 judgment of death.  Adams was argued on the September calendar.

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

October 28, 2014

Getting relief for a late petition for review might not be a hopeless cause

On the list of appellate lawyer nightmares — an appropriate topic considering that Halloween is only a few days away — forgetting to file a timely notice of appeal probably ranks first.  (For literal nightmares, first place might be approaching the court lectern and realizing you have no idea what the case you’re there to argue is about.  I really hate that one.)nightmare.math

Near the top of the nightmare list, however, is missing the deadline for filing a petition for review and having to ask the Chief Justice for relief under rule 8.500(e)(2).  Our understanding was that such relief is extremely hard to come by.  However, we’ve seen a couple of recent cases indicating that things might be loosening up a bit.

In Keshtgar v. U.S. Bank, the appellant was three days late with his petition for review.  (Hat tip to Robert Cooper for noticing the case.)  In his relief motion a few months ago, the appellant’s counsel offered a rather lame excuse:  most of his practice is in the trial court, decisions in three of his appellate cases (which he didn’t even bother to name) “were issued within a short period of time,” and he drafted two rehearing petitions in addition to the Keshtgar petition for review.  The petition for review was late, he said, because of his “unexpected surprise of having much appellate work to complete in a short period of time.”  The Supreme Court filed the petition.  It then granted relief again when counsel’s reply to the answer to the petition for review was 10 days late.  The reason for this tardiness?  He read the wrong rule, looking at the 20-day period to file a reply brief on the merits after review is granted instead of the 10-day period to file a reply to an answer to a petition for review.  To top it off, the court granted review.  (It’s a grant-and-hold case.)

There’s also last year’s Barry v. State Bar, in which the court granted relief to file a petition for review 18 days late.  (We haven’t seen the relief application in that case.)  The Supreme Court granted review in that matter, too.

Whether or not there’s actually a softening trend toward relief for late filings in the Supreme Court, here’s some advice:  don’t try this at home, unless you thrive on nightmares.