October 13, 2014

“California Supreme Court and state appeals court justices face easy election road”

So reports Howard Mintz in the San Jose Mercury News.  For the Supreme Court and Court of Appeal candidates on this year’s ballot, he says “it most definitely is not 1986,” when a big money campaign purged the Supreme Court of three of its seven members.  Mintz quotes one observer, ” ‘That’s not this election, or any one we can foresee in the near future.’ ”  That may be true of 2014, but, as Iowa and Tennessee have shown, the next “100-year flood” might not be too far off.


October 8, 2014

Sacramento Bee endorses Supreme Court candidates

As the Los Angeles Times did two weeks ago, the Sacramento Bee today urged California voters to confirm or retain the three candidates for Supreme Court justice seats, sitting justices Kathryn Werdegar and Goodwin Liu, and justice-in-waiting Mariano-Florentino Cuéllar.  The Bee said that “[a]ll come with solid credentials and all deserve a thumbs up from voters.”

October 7, 2014

No conference held the week of October 6, 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.

October 6, 2014

Six cases on the November calendar in Sacramento [UPDATED]

The Supreme Court today announced its November calendar.  There are six cases to be argued, including one — Johnson v. California Department of Justice — in which the court has already signaled that it might overrule one of its own opinions.  Because there is still a vacancy on the court, each of the six cases will have a different Court of Appeal justice sitting by assignment, none of whom has been announced yet.  By our count, this will bring to 45 the number of cases with pro tems since Justice Kennard left the court in April.  [Update:  It will be 45 cases, but 44 pro tems.  Two of the November cases are related and will have the same pro tem.  See below.]

On November 3, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):

Richey v. Autonation, Inc.:  (1) Is an employer’s honest belief that an employee was violating company policy or abusing medical leave a complete defense to the employee’s claim that the employer violated the Moore-Brown-Roberti Family Rights Act (Gov. Code §§ 12945.1, 12945.2)?  (2) Was the decision below to vacate the arbitration award in the employer’s favor consistent with the limited judicial review of arbitration awards?

Johnson v. California Department of Justice:  Do the equal protection principles of People v. Hofsheier (2006) 37 Cal.4th 1185 bar mandatory sex offender registration for a defendant convicted of oral copulation between a “person over the age of 21 years” and a “person who is under 16 years of age” (Pen. Code, § 288a, subd. (b)(2))?  The court asked for supplemental briefing on these questions:  Should the court overrule People v. Hofsheier (2006) 37 Cal.4th 1185?  Among the subsidiary questions counsel may wish to address are the following:  1. What level of equal protection scrutiny applies to the statutory difference in sex offender registration requirements between those convicted of violating Penal Code section 288a and those convicted of violating Penal Code section 261.5?  2. Has Hofsheier presented practical difficulties of application in the trial and appellate courts?  3. Has Hofsheier been extended beyond the sex offender registration context in ways that could not have been anticipated at the time of the decision?  4. Absent the limitations on Hofsheier‘s application asserted in People v. Manchel (2008) 163 Cal.App.4th 1108, the validity of which is challenged in the present case, what principles, if any, constrain the application of Hofsheier?  5. Does Hofsheier‘s equal protection analysis logically extend beyond the context of sex offender registration?  6. If Hofsheier‘s holding is overruled, would and should the court’s decision apply retroactively to offenders who have been convicted or released from custody since the decision in Hofsheier without registration orders or who have obtained relief by writ petition from preexisting registration requirements?

Mendiola v. CPS Security Solutions, Inc.:  Are the guards that defendants provide for construction site security entitled to compensation for all nighttime “on call” hours, or may defendants deduct sleep time depending on the structure of the guards’ work shifts?

Hudec v. Superior Court:  Does Penal Code section 1026.5, subdivision (b)(7), give a person who was committed after being found not guilty of criminal charges by reason of insanity the right to refuse to testify in a proceeding to extend that civil commitment?

People v. Trujillo:  Does the failure to object to an order for payment of a presentence investigation fee and/or an order for payment of probation supervision fees forfeit a claim that the trial court erred in failing to make a finding of the defendant’s ability to pay the amount in question?  (See also People v. Aguilar, S213571.)

People v. Aguilar:  Does the failure to object to an order for payment of attorney fees, an order for payment of a criminal justice administration fee, and/or an order for payment of probation supervision fees forfeit a claim that the trial court erred in failing to make a finding of the defendant’s ability to pay the amount in question?  (See also People v. Trujillo, S213687.)

[October 10 update:

Here are the pro tems, as listed on the court's first amended calendar.

Richey v. Autonation, Inc.:  Third District Court of Appeal Justice Elena Duarte.

Johnson v. California Department of Justice:  Sixth District Court of Appeal Justice Franklin Elia.

Mendiola v. CPS Security Solutions, Inc.:  Fourth District, Division Three, Justice Richard Fybel.

Hudec v. Superior Court:  Second District, Division Four, Presiding Justice Norman Epstein.

People v. Trujillo and People v. Aguilar:  Fifth District Justice Donald Franson, Jr.]

October 1, 2014

California Supreme Court appoints Lawrence Striley as state’s new Reporter of Decisions

As we mentioned a while back, California’s Reporter of Decisions, Ed Jessen, retired earlier this year after 25 years of service. The Supreme Court has now appointed Lawrence W. Striley of Colorado as his successor, following a nationwide search. According to this press release, Mr. Striley has over 18 years of experience in the legal profession and is an active member of the Colorado and Wyoming State Bars. He also has twelve years of experience in legal publishing, having served “as a director of content development, an editorial manager, and a legal editor at LexisNexis.” While at LexisNexis, part of his job was to manage “the printing and publication of the official versions of opinions from California” and several other states. Given that background, Mr. Striley’s transition to his new role as Reporter of Decisions should be a smooth one. However, the new role may present some novel challenges as well, not least of which is to update the California Style Manual, aka the Yellow Book.

On the personal side, we note that Mr. Striley describes himself on his Avvo profile as a “frustrated blue-water sailor.” Here’s hoping that, with his relocation to the San Francisco Bay Area, a sailor’s paradise, he will be frustrated no more.

September 26, 2014

Governor signs bill overturning Supreme Court decision

Governor Brown today signed Senate Bill 1058, which, as explained, reverses the Supreme Court’s 4-3 decision in In re Richards (2012) 55 Cal.4th 948.  The legislation broadens the definition of “false evidence” for habeas corpus relief.


September 26, 2014

Summary of September 24, 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, September 24, 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

Sabia v. Orange County Metro Realty, S220237 – Review Granted and Held – September 24, 2014

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

In Sabia, plaintiff and eight other individuals contracted with defendants, a mortgage foreclosure consulting firm. Among the named plaintiffs were four non-native English speakers, each of whom signed the contract after defendants explained the terms in Spanish. After defendants allegedly breached the agreement, plaintiffs filed a class action alleging fraud and breach of contract. The defendants moved to compel arbitration based on the contract’s arbitration clause. Plaintiffs responded by arguing the arbitration provision was procedurally and substantively unconscionable. The trial court ordered arbitration, and plaintiffs appealed.

The Court of Appeal, Second Appellate District, Division Eight, reversed in a published decision, Sabia v. Orange County Metro Realty, Inc. (2014) 227 Cal.App.4th 11, holding: (1) the arbitration provision was procedurally unconscionable because defendants failed to properly disclose the terms of the contract, particularly the arbitration provision; and (2) the arbitration agreement was substantively unconscionable because, by its terms, only plaintiffs were required to arbitrate their claims. The Court of Appeal reasoned the arbitration agreement was procedurally unconscionable because Plaintiffs “were presented a stack of English language documents and effectively told not to read them because they reflected what [defendants] had” misrepresented to them in Spanish. With regard to substantive unconscionability, defendants argued that refusing arbitration for lack of mutuality would contravene AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, 131 because “a lack of perfect mutuality of obligation is not generally grounds to invalidate a contract under California law,” and such a requirement would disfavor arbitration. But the Court of Appeal observed that “the ordinary principles of unconscionability may manifest themselves in forms peculiar to the arbitration context. One such form is an agreement requiring arbitration only for the claims of the weaker party but a choice of forums for the claims of the stronger party. The application of this principle to arbitration does not disfavor arbitration.” (Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, 119.)

In a dissenting opinion, Justice Grimes noted that she “would have preferred to stay this case to obtain the benefit of the opinions in cases now pending decision in [the] Supreme Court.”

Review Denied (with dissenting justices)




September 21, 2014

LA Times endorses justices’ retention, urges voters to call appellate lawyers

The Los Angeles Times editorial page this morning urges a “yes” vote this November for the three Supreme Court justice candidates on the ballot, as well as for all the Court of Appeal justice candidates up for election this year.  Justices Kathryn Werdegar and Goodwin Liu, and Justice-in-waiting Mariano-Florentino Cuéllar, get the newspaper’s endorsement.

Perhaps because they are on the ballot for the first time, Liu and Cuéllar get the most individualized discussion in the editorial.  Cuéllar is called “a solid choice with a thoughtful and academic bent well-suited to the state’s high court.”  As for Liu, the Times notes both the earlier right-wing filibuster of his nomination to a federal appellate court and his recent statement as a California Supreme Court justice in favor of removing the anti-Citizens United proposition from the ballot and opines, “It may seem odd that a state justice formerly blocked by politicians on the right should write an opinion that so antagonized people on the left.  But good justices — and Liu is one of them — routinely write controversial opinions that reach their conclusions based on the law as written and understood by the entire court, and not on a single justice’s ideology.”

The Times recognizes generally that, “[a]s in all judicial elections, the voters’ chief challenge is finding enough information about the candidates to make wise choices.”  But it call-meoffers some solutions, including, “ask the opinions of attorneys who argue their cases at the Court of Appeal and the Supreme Court.”  Horvitz & Levy attorneys are standing by.

September 19, 2014

Justice Chin to speak in Newport Beach on Monday

As reported by the Southern California Appellate News, Justice Ming Chin will be speaking at an Orange County Bar Association luncheon on Monday, September 22, in Newport Beach. The topic of his discussion will be his experiences on the Supreme Court and his perspective on oral advocacy and brief writing. In case you can make it to the OC, here is the OCBA registration form.

September 19, 2014

Summary of September 17, 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, September 17, 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

Uriarte v. Scott Sales Company, S220088—Review Granted and Held—September 17, 2014

The court ordered briefing deferred pending its decision in Ramos v. Brenntag Specialities, Inc., S218176, which presents the following issue: Are negligence and strict liability claims by an employee of a processing company against a supplier of raw materials, for injuries allegedly suffered in the course of processing those materials, barred by the component parts doctrine?

The plaintiff alleged that airborne toxins produced by sandblasting with the defendant’s silica sand caused him to develop interstitial pulmonary fibrosis and other illnesses. The defendant moved for judgment on the pleadings based on the component parts doctrine as applied in Maxton v. Western State Metals (2012) 203 Cal.App.4th 81. The trial court granted the defendant’s motion without leave to amend and entered judgment in favor of the defendant.

In a published opinion, Uriarte v. Scott Sales Co. (2014) 226 Cal.App.4th 1396, the Court of Appeal, Second District, Division One, reversed. It held the component parts doctrine did not apply, emphasizing that the plaintiff did not allege that the defendant’s silica sand was incorporated into a finished product that caused him harm. Rather, the plaintiff alleged that the defendant’s sand “was used in [his employer’s] manufacturing process . . . and he was injured in the course of that process.” The Court of Appeal rejected the defendant’s reliance on Maxton, observing that “[n]o California case other than Maxton has extended the component parts doctrine to apply to injuries caused during the manufacturing process.” The court noted another recent decision, Ramos v. Brenntag Specialties, Inc. (2014) 224 Cal.App.4th 1239), in which the Supreme Court subsequently granted review, which declined to follow Maxton and disagreed with its interpretation of the components part doctrine. (Full disclosure: Horvitz & Levy LLP is counsel for one of the defendants in Ramos.)

Lewis v. Superior Court, S219811—Review Granted—September 17, 2014

This case presents the following issues: (1) Do a physician’s patients have a protected privacy interest in the controlled substance prescription data collected and submitted to the California Department of Justice under Health and Safety Code section 11165?; (2) If so, is disclosure of such data to the Medical Board of California justified by a compelling state interest?

The Medical Board of California (the Board) received a complaint from a doctor’s patient about the quality of care and treatment she had received. In response, the Board launched an investigation of the doctor, which included a Controlled Substance Utilization Review and Evaluation System (CURES) report on his prescribing practices. Based on the CURES report, the Board sent releases to six of the doctor’s patients to obtain their medical records; two of those sets of records were obtained after an administrative subpoena was issued. Ultimately, as a result of the Board’s investigation, the doctor was placed on probation for three years.

The doctor filed a petition for writ of administrative mandamus in the trial court seeking to set aside the Board’s decision. He “argued the Board violated his patients’ informational privacy rights under article I, section 1 of the California Constitution by accessing CURES during the course of an investigation unrelated to improper prescription practices, and also violated their rights not to be subjected to unwarranted searches and seizures.” The trial court denied the petition stating, among other things, that the doctor failed to provide any authority suggesting that the Board’s review of the CURES data violated a right to privacy. Moreover, the trial court emphasized that even if a privacy right were implicated, that right is not absolute and must be weighed against the compelling public interest of the state. On balance, the trial court concluded that “‘[t]he public health and safety concern[s] served by the monitoring and regulation of the prescription of controlled substances serves a compelling public interest that justifies disclosure of prescription records without notification or consent.’”

In a published opinion, Lewis v. Superior Court (2014) 226 Cal.App.4th 933, the Court of Appeal, Second District, Division Three, affirmed the denial of the doctor’s writ petition. The court asserted that the Board did not violate the doctor’s patients’ right to informational privacy. Although the court recognized the patients’ legally protected privacy interest in their prescription records, it rejected the doctor’s suggestion that the Board invaded that interest in a significant way. Further, the court asserted that even if the doctor had established the threshold elements of a right to informational privacy on behalf of his patients, the state’s compelling interest in controlling the diversion and abuse of controlled substances and protecting the public from negligent and incompetent physicians, justified the Board’s actions. Accordingly, the court concluded that “the Board’s actions here in accessing and compiling data from CURES did not violate article I, section 1 of the California Constitution.”

Review Denied (with dissenting justices)




September 18, 2014

California Lawyer article assesses the Court’s recent performance

In the September issue of California Lawyer magazine, Santa Clara University law professors Gerald Uelmen and Kyle Graham assess the California Supreme Court’s performance during fiscal 2013-2014 (July 1, 2013 to June 30, 2014).  In that period, they report, the Court decided 89 cases (32 civil matters, 26 death penalty cases, 38 non-capital criminal cases and three State Bar matters).  With respect to the civil cases—the focus of this blog—the Court split 4-3 three times, split 5-2 five times, and split 6-1 twice.  The Court thus issued 22 unanimous civil decisions last year.  The overall dissent rate (including criminal cases) was 4.5 percent, nearly double the all-time low of 2.3 percent witnessed during Chief Justice Tani Cantil-Sakauye’s first year at the helm in 2010-2011, but significantly below last year’s robust dissent rate of 6.1 percent.

Uelmen and Graham report that Justice Goodwin Liu authored the most separate opinions, with 14 concurrences and four dissents.  This is not surprising, given the importance he ascribes to writing separately, a topic we have discussed in the past.  Justice Joyce Kennard, who retired in early April, wrote nearly as many separate opinions as Justice Liu (in less time) and stayed true to her record by penning the most dissents, with eight (she also wrote nine concurrences).  The Chief and Justice Ming Chin tied for the authorship of the most majority opinions, with 15 apiece.

Looking forward, Uelmen and Graham note that, in light of Justice Kennard’s retirement and Justice Marvin Baxter’s recent announcement that he will not seek reelection in November, Governor Brown now has “the opportunity to reshape the high court  with a less conservative majority.”  They predict that “[t]he coming year will see the emergence of a dramatically different California Supreme Court.”  That new Court is already taking shape with the recent confirmation of Governor Brown’s nominee, Mariano-Florentino Cuellar, as the Court’s newest justice, subject to approval by the voters in November.

September 16, 2014

Live streaming Supreme Court arguments: we’re not in Kansas

Rick Hasen’s Election Law Blog yesterday reported that this morning’s Kansas Supreme Court argument in a significant election law case would be webcast live, as are all of that court’s arguments.  The broadcasting of every argument puts Kansas ahead of California.Kansas

In this state, broadcasting Supreme Court arguments is the exception, not the rule.  The general rule prohibits broadcasting proceedings in any California court.  The California Channel does televise some high-profile cases and some special sessions.  To see most arguments, however, you have to show up in person.

A Judicial Council spokesperson tells us that the court does live stream arguments internally to court staff, but it “is still in the process of developing live-streaming capability over the internet.”  Whether California can catch up to Kansas “comes down to two issues:  funding and technology resources.”

September 15, 2014

Major national appellate summit to be held in Dallas this November

The Appellate Judges Education Institute (AJEI) is holding its eleventh annual nationwide appellate Summit at the Marriott City Center in Dallas, Texas, on November 13 through 16, 2014. The summit is co-sponsored by the Appellate Judges Conference of the ABA and its constituent organizations, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys.

This year’s AJEI Summit will present excellent speakers on topics of interest to appellate practitioners, including: a U.S. Supreme Court review and preview; actual innocence; privacy issues; the evolution of personal jurisdiction jurisprudence; oral argument from both sides of the bench; legal writing; the business of appellate practice; and the 50th Anniversary of the Civil Rights Act of 1964.  United States Supreme Court Justice Antonin Scalia, together with legal writing expert Professor Bryan Garner, will be speaking on Reading, Interpreting, and Writing about the Law. All timely registrants will receive a complimentary copy of their book Reading Law: The Interpretation of Legal Texts. Other confirmed speakers include prominent state and federal appellate judges, Dean Erwin Chemerinsky of the U.C. Irvine School of Law, and NBC News 48 Hours correspondent Erin Moriarty. Check out the Summit’s program for a complete overview of the available appellate CLE opportunities.

In addition to the top-notch speakers and programs, there will be several social events, including breakfasts, lunches, cocktail mixers, a Summit dinner, and dine-arounds. The Summit’s Opening Reception will be “A Taste of the Arts,” an evening of performances by acclaimed artists at Dallas’s renowned Winspear Opera House. These events will provide plentiful opportunities for mixing with appellate judges and lawyers from around the country. Each year, approximately 100 appellate judges, 100 appellate attorneys, and 75 appellate staff attorneys attend the Summit. (Full disclosure: Horvitz & Levy partner Brad Pauley is Chair-Elect of the ABA’s Council of Appellate Lawyers.)

September 15, 2014

Summary of September 10, 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, September 10, 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

Wheatherford v. City of San Rafael, S219567—Review Granted—September 10, 2014

This case 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 526a (section 526a), or can the payment of other taxes confer standing?

The plaintiff filed a complaint challenging the enforcement practices of the City of San Rafael with respect to the impoundment of vehicles. In her complaint, the plaintiff asserted she had taxpayer standing under section 526a because she paid sales tax, gasoline tax, and water and sewage fees in the City of San Rafael. The plaintiff conceded that appellate courts have twice held that payment of property tax was necessary in order for a party to have taxpayer standing under section 526a (see Torres v. City of Yorbal Linda (1993) 13 Cal.App.4th 1035; Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761); the plaintiff did not pay property taxes. Despite the holdings in Torres and Cornelius, the plaintiff argued she nevertheless had taxpayer standing under Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069. There, the California Supreme Court held two homeless plaintiffs had taxpayer standing under section 526a. Further, the plaintiff asserted she had taxpayer standing under section 526a because (1) the plain language of the statute establishes that any tax payment is sufficient for taxpayer standing, (2) the legislative intent of the statute supports her broad interpretation of 526a, and (3) a narrow interpretation of 526a that requires the payment of a property tax violates constitutional principles of equal protection. The trial court rejected the plaintiff’s position and entered a stipulated judgment of dismissal.

In a published opinion, Wheatherford v. City of San Rafael (2014) 226 Cal.App.4th 460, the Court of Appeal, First Appellate District, Division One, affirmed the trial court’s decision. The court rejected the plaintiff’s reliance on Tobe and her effort to distinguish Torres and Cornelius. The court made clear that Cornelius, decided one year after Tobe, was the controlling precedent. Moreover, the court acknowledged that, although the Supreme Court in Tobe held the homeless plaintiffs had taxpayer standing under 526a, “[t]here [was] no indication . . . that the Court considered the issue of what taxes plaintiffs had paid to enjoy this standing . . . [t]he main focus of the case was geared toward separate constitutional concerns.” Cornelius, on the other hand, directly answered the question and “held that proof of payment of real property tax is required by section 526a; payment of sales, gasoline, and income taxes will not suffice.” Accordingly, since the plaintiff did not pay property taxes, she does not have taxpayer status under section 526a.

In re Abbigail, S220187—Review Granted—September 10, 2014

This case presents the following issue: Do rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code section 224.1, subdivision (a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment?

A juvenile court placed Abbigail A. in the custody of her maternal grandmother. The court then directed the Sacramento County Department of Health and Human Safety (DHHS) to enroll Abbigail in the tribe of her paternal great-aunt and great-grandmother even though her presumed biological father was not himself a member of the tribe. The directive was ordered under California Rules of Court, rules 5.428(c) and 5.484(c)(2) that include certain affirmative duties owed by agencies to children who are eligible for tribal membership but are not “Indian children” as defined in the federal Indian Child Welfare Act (ICWA) and state law. Under the ICWA and state law, a minor is an “Indian child” if she is a member of the tribe herself or is a biological child of a tribe member and eligible for tribal membership. The DHHS appealed, asserting that “federal law preempts the extension of services in the two rules [Cal. Rules of Court, rules 5.482(c) and 5.484(c)(2)] to minors who are not Indian children under the ICWA.” Moreover, the rules are inconsistent with California’s own state definitions of an Indian child for purposes of ICWA protections.

In a published opinion, In re Abbigail A. (2014) 226 Cal.App.4th 1450, the Third District Court of Appeal reversed with directions to enter a new judgment that did not provide Abbigail any of the protections afforded an Indian child under the ICWA and state law, until either she or her father were enrolled in an Indian tribe. The court agreed with DHHS’s point, concluding that the “two rules [were] inconsistent with the legislative definition of the class of protected Indian children, and therefore the Judicial Council lacked authority to expand the definition.” The court further emphasized the legislature’s clear intent of developing a limited definition for “Indian child.” Accordingly, since neither Abbigail nor her father were tribal members, the juvenile court did not have the authority to order the DHHS to make active efforts to enroll her in the tribe.

Review Denied (with dissenting justices)

Rea v. Blue Shield of California, S220084—Review Denied [Baxter, J., voting for review]—September 10, 2014

This case presents the following issue: Does the California Mental Health Parity Act of 1999 require health care service providers to cover “medically necessary” residential treatment for the eating disorders anorexia nervosa and bulimia nervosa when the patient’s health plan does not cover such treatment?

Two women suffering from eating disorders were advised that residential treatment was medically necessary. Their Blue Shield of California health plans covered the treatment of mental illness but excluded residential treatment. To obtain residential treatment, the women filed suit, arguing that the Parity Act—which requires coverage for the “medically necessary treatment of severe mental illnesses . . . under the same terms and conditions applied to other medical conditions,” such as physical illnesses—should be read to include residential treatment for their eating disorders because it was “medically necessary,” even though their plans had no residential treatment analog for physical illnesses.

The trial court sustained Blue Shield’s demurrer without leave to amend because the Knox-Keene Health Care Service Plan Act of 1975, of which the Parity Act is a part, requires coverage of physical illnesses to consist only of “basic health care services,” which did not include residential treatment. In a published opinion, Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, the Court of Appeal, Second District, Division One, reversed, holding that the principle of parity does not require identical treatment of mental and physical illnesses but does require “treatment of mental illnesses sufficient to reach the same quality of care afforded physical illnesses.”

Young v. Workers’ Compensation Appeals Board, S220292—Review Denied [Corrigan, J., voting for review]—September 10, 2014

This case presents the following issue: May a county jail correctional sergeant obtain workers’ compensation for an off-duty injury sustained while exercising when a departmental order required correctional officers to “maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer”?

A county jail correctional sergeant sustained an injury while performing jumping jacks at home as part of his regular warm-up exercise regimen. The workers’ compensation judge found the injury compensable under Labor Code section 3600, subdivision (a)(9), which precludes compensation for injuries arising out of “voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

The Workers’ Compensation Appeals Board annulled that decision, concluding the sergeant’s belief that he was expected to engage in a physical fitness regimen was not objectively reasonable. In a published decision, Young v. Workers’ Compensation Appeals Board (2014) 227 Cal.App.4th 472, the Third District Court of Appeal disagreed, annulled the WCAB’s decision, and remanded for further proceedings.



September 9, 2014

October’s calendar is five sixths criminal

The Supreme Court today announced its October calendar.  There are six cases on it, five of them criminal, including a death penalty case that is being argued for a second time.  Each case will have a different pro tem.  Not double counting the reargued case, in which the pro tem justice who participated in the first argument will return for the second round, October will bring to 39 the number of cases with pro tems since Justice Kennard left the court in April.

On October 7, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Packer v. Superior Court:  Did the trial court abuse its discretion by denying a motion for recusal of a prosecutor without an evidentiary hearing on the grounds that defendant failed to make a prima facie showing that recusal was warranted?   (Second District, Division Seven, Court of Appeal Justice Fred Woods is the pro tem.)

People v. Centeno:  Did the prosecutor commit misconduct during closing argument by misstating the state’s burden of proof?  (Second District, Division Three, Court of Appeal Justice Richard Aldrich is the pro tem.)

People v. Grimes: [This is an automatic appeal from a January 1999 judgment of death.  The court's website does not list issues for such appeals.] (Second District, Division Seven, Justice Laurie Zelon is the pro tem.)  [Note:  for this second argument, following supplemental briefing, the court has limited each side to 15 minutes this time.  Argument in death penalty cases can be up to 45 minutes per side.)

Rashidi v. Moser:  If a jury awards the plaintiff in a medical malpractice action non-economic damages against a healthcare provider defendant, does Civil Code section 3333.2 entitle that defendant to a setoff based on the amount of a pretrial settlement entered into by another healthcare provider that is attributable to non-economic losses or does the statutory rule that liability for non-economic damages is several only (not joint and several) bar such a setoff?  (Fifth District Court of Appeal Justice Jennifer Detjen is the pro tem.)

People v. Lavender:  Did the Court of Appeal err by reversing defendants’ convictions for juror misconduct and remanding for a new trial rather than remanding for an evidentiary hearing into the misconduct?  (First District, Division One, Justice Robert Dondero is the pro tem.)

People v. Smith:  Was defendant properly convicted of murder under the natural and probable consequences theory of aiding and abetting?  Four months ago, the court asked for supplemental briefing 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?  (Sixth District Court of Appeal Justice Patricia Bamattre-Manoukian is the pro tem.)

September 8, 2014

“Petitioning to Right a Historic Wrong”

This month’s Los Angeles Lawyer includes an essay by Rachelle Chong, an attorney and former FCC commissioner, about her great uncle — Hong Yen Chang — and the effort by UC Davis law students to have the California Supreme Court reverse its 1890 race-based decision (In re Hong Yen Chang (1890) 84 Cal. 163) denying Chang admission to the California bar.  The state Senate several months ago passed a supporting resolution.

In the New York Times archives, you can read an 1888 article about Chang becoming licensed to practice law in New York (after an earlier denial) and being at the time, according to the article, “the only regularly admitted Chinese lawyer in this country.”


September 6, 2014

California’s newest state Supreme Court justice discusses his rise

Howard Mintz has the exclusive interview of Mariano-Florentino Cuéllar for the San Jose Mercury News.  The headline is slightly presumptuous, however.  Although Cuéllar’s nomination was recently confirmed by the Commission on Judicial Appointments, he must still be approved by the voters in November and, even then, must wait until January to join the court.


September 4, 2014

The 2014 Court Statistics Report documents continued decline in Supreme Court filings.

As we noted here, the Judicial Council recently issued its 2014 Court Statistics Report, with detailed statistics on caseload trends at all levels of the judicial branch. The report includes data for the ten years leading up to and including fiscal 2012-2013, which ended on June 30, 2013. The report reveals that the Supreme Court issued more opinions in fiscal 2013, with 94 written opinions issued compared with the previous year’s 87. The 94 opinions issued in fiscal 2013 is about par for the course, with the Court having issued 98 opinions in fiscal 2011. The Court also ordered depublished 16 opinions of the Court of Appeal, which is in line with the moderate but consistent rate of depublication we have observed in the years since Chief Justice Tani Cantil-Sakauye took over from her predecessor, Ronald M. George.

With the exception of the increase in the Supreme Court’s written opinions, however, the Report largely tells a story of statistical decline. Total petitions for review fell to 4,188, down significantly from 4,620 in the previous fiscal year and 4,999 the year before. Filings of civil petitions for review exhibited a similar decline. There were just 1,108 civil petitions for review filed in fiscal 2013, compared with 1,203 in fiscal 2012 and 1,247 in fiscal 2011.

Original writ proceedings filed in the Supreme Court also declined in fiscal 2013, with 2,911 such filings compared to 3,581 in fiscal 2012 and 4,082 original proceedings filed in fiscal 2011. Original civil writ proceedings displayed an even more precipitous decline, with just 174 initiated in fiscal 2013, compared with 294 in the previous fiscal year, and 507 the year before that.

We are typically reluctant to speculate about the possible reasons for a statistical trend, but here the cause of the decline in filings seems pretty clear. Justice Douglas Miller, chair of the Judicial Council’s Executive and Planning Committee, blamed the “worrisome” decrease in court filings on several years of judicial branch budget cuts. Justice Miller said those cuts, in turn, have resulted in “the increase in court filing fees to offset General Fund budget cuts and closure of courthouses and/or the reduction of hours at our courthouses.” As the Court noted last year in its 2013 Workload Statistics Report, these factors, plus staff furloughs, have hindered the flow of cases through the system and have thus reduced the number of filings in the Supreme Court.

September 3, 2014

No conference held the week of September 1, 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.

September 2, 2014

Supreme Court Cases and Bananas – Both Can Come in Bunches

Sometimes an “issue du jour” generates a number of intermediate appellate opinions before guidance is provided by the California Supreme Court.  That has been the situation with issues concerning the enforceability of arbitration agreements in California, as our latest conference report summary for civil cases reflects.  After issuing its recent decision in Iskanian v. CLS Transportation Los Angeles, LLC, the Supreme Court has now decided to continue holding two of those cases (Caron v. Mercedes-Benz Financial Services USA and Flores v. West Covina Auto Group) until the resolution of Sanchez v. Valencia Holding Co.; the Court has chosen to dismiss review altogether in one case (Reyes v. Liberman Broadcasting, a decision that favors the defense side from the Second District, Division One); and the Court has transferred the following three cases back to the Courts of Appeal for reconsideration in light of Iskanian: (1) Franco v. Arkelian Enterprises (a decision for the plaintiff from the Second District, Division One); (2) Brown v. Superior Court (another decision for the plaintiff from the Sixth District); and (3) Ybarra v. Apartment Investment & Management Co. (a decision for the defense from the Second District, Division Two).

These cases viewed together provide an interesting overview of three of the four options the Court has in dealing with grant-and-hold cases—the fourth being to take a held case up on the merits after the lead case is decided, and call for full briefing and argument.  If Sanchez does not answer the questions posed in Caron and Flores, or in one of the other cases being held pending the resolution of Sanchez, that may yet happen.

We have previously posted information about the time lag that has sometimes occurred between issuance of the lead case and either dismissing review in held cases or transferring them to the Court of Appeal, and we have also discussed the need for litigants in grant-and-hold cases to move fast to express their views on the appropriate treatment of the case after the lead case is decided.