August 4, 2016

Conference on the California Supreme Court

We’ve received a save-the-date notice for the January 13, 2017, Conference on the Supreme Court of SCOCA Save the Date_V2California.  The conference will be presented by Berkeley Law’s California Constitution Center — “the first and only center at any law school devoted exclusively to studying the constitution and high court of the state of California” — and by the Hastings Law Journal.  Horvitz & Levy partner Jeremy Rosen is tentatively scheduled to be a panelist on one of the programs.

August 4, 2016

Supreme Court allows Home Depot stay-away probation condition

In People v. Moran, the Supreme Court today upholds a probation condition barring from all Home Depots and adjacent parking lots a person who pleaded no contest to shoplifting at a Home Depot store.  The unanimous opinion by Justice Kathryn Werdegar rejects the Court of Appeal’s holding that the condition was unconstitutionally overbroad and violated the defendant’s constitutional right to travel.  Finding it a “struggle[ ] to perceive how the condition curtails [the defendant’s] right to free movement in any meaningful way,” the court explains that, “[a]lthough criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible.”

The court reverses the Sixth District Court of Appeal.

August 4, 2016

No conference held the week of August 1, 2016

The Court held no conference this week.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

August 3, 2016

8 arguments on Supreme Court’s September calendar

After its traditional two-month break from oral arguments, the Supreme summer-endsCourt will hear 8 arguments (in 9 cases) in September.  Several of the cases were continued from the late-May or June calendars.

On September 7 and 8, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Kesner v. Superior Court and Haver v. BNSF Railway Company:  If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?
These two cases were consolidated for argument and opinion, and the argument was continued from the June calendar.  The argument will be 80 minutes, instead of the normal 60, with each party having 20 minutes, instead of the normal 30, to argue.
[Disclosure:  Horvitz & Levy is appellate counsel for real party in interest Pneumo Abex LLC in the Kesner case.]

Augustus v. ABM Security Services, Inc.:  (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks?  (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?
[Disclosure:  Horvitz & Levy filed an amicus curiae brief in the Augustus case on behalf of the United States Chamber of Commerce.]

Maas v. Superior Court:  Does Code of Civil Procedure section 170.6 permit a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus?
Review was granted on the court’s own motion in this case.
The argument was continued from the late-May calendar.

People v. Thompson:  This is an automatic appeal from a June 1993 judgment of death.  The court’s website does not list issues for such appeals.

People v. Williams:  This is an automatic appeal from a February 2005 judgment of death.  The court’s website does not list issues for such appeals.

Horiike v. Coldwell Banker Residential Brokerage:  When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code section 2079.13, subdivision (b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality, and counseling to both?
The argument was continued from the June calendar.
[Disclosure:  Horvitz & Levy is lead appellate counsel for Horiike.]

Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc.:  (1) Does the delegation — by a health care service plan (HMO) to an independent physicians association (IPA), under Health and Safety Code section 1371.4, subdivision (e) — of the HMO’s responsibility to reimburse emergency medical service providers for emergency care provided to the HMO’s enrollees relieve the HMO of the ultimate obligation to pay for emergency medical care provided to its enrollees by non-contracting emergency medical service providers, if the IPA becomes insolvent and is unable to pay?  (2) Does an HMO have a duty to emergency medical service providers to protect them from financial harm resulting from the insolvency of an IPA which is otherwise financially responsible for the emergency medical care provided to its enrollees?
In February, the court 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?

People v. Winbush:  This is an automatic appeal from a July 2003 judgment of death.  The court’s website does not list issues for such appeals.

August 3, 2016

Probation conditions opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Moran, which was argued on the late-May calendar.

The issue in Moran is whether the condition of probation barring defendant from all Home Depot stores and their parking lots after he was convicted of shoplifting at a single Home Depot store was unconstitutionally overbroad as impinging on his constitutional right to travel.

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

August 1, 2016

Supreme Court broadens anti-SLAPP statute’s reach

In Baral v. Schnitt, the Supreme Court today holds that a statutory anti-SLAPP motion — a procedure for early screening of the merits of causes of action arising out of a person’s right of petition or free speech — may challenge a claim within a cause of action even if the entire cause of action does not come within the statute’s scope.  The unanimous opinion by Justice Carol Corrigan concludes that not allowing a challenge to a portion of a cause of action “unduly limits the relief contemplated by the Legislature.”

The court reverses the Second District, Division One, Court of Appeal, and disapproves a 2004 decision by the Fourth District, Division One, a 2011 decision by the First District, Division 5, a 2012 Sixth District decision, and a 2013 Third District decision.

The Supreme Court’s opinion is consistent with a 2012 decision of the Fourth District, Division Two, and a 2013 decision by the Second District, Division Four.

August 1, 2016

Supreme Court affirms death sentence, allowing dog-trailing evidence

The Supreme Court today affirms the death sentence in People v. Jackson.  The unanimous opinion by Justice Goodwin Liu, among other things, rejects a challenge to dog-trailing evidence, concluding that it was not a new scientific technique subject to a Kelly hearing, but rather that “[s]cent trailing evidence is not so foreign to everyday experience that it would be unusually difficult for jurors to evaluate,” and that the prosecution laid an adequate foundation.  The court does find, however, that it was error to impose consecutive sentences concerning some noncapital crimes the defendant committed.

August 1, 2016

Summary of July 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, July 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

Crossroads Investors v. Federal National Mortgage Association, S234737 – Review Granted and Held – July 27, 2016

The Court ordered briefing deferred pending its decision in Baral v. Schnitt, S225090, which presents the following issue:  Does a special motion to strike under the anti-SLAPP statute — Code of Civil Procedure section 425.16 — authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute?

The Third District Court of Appeal held in a published decision, Crossroads Investors, L.P. v. Federal National Mortgage Association (2016) 246 Cal.App.4th 529, that: (1) Fannie Mae’s alleged failure to respond to a borrower’s verbal requests for an accounting was not protected activity under anti-SLAPP statute; and (2) Fannie Mae’s alleged failure to provide the borrower with the scheduled date of a foreclosure sale, after promising to provide such notice, was not protected litigation activity.

Transferred

Hamilton v. Yates, S226450 – Transferred after Grant of Review – July 27, 2016

This case presents the following issues: (1) Did the trial court err in concluding that there was no means of affording the indigent prisoner plaintiff access to the courts to pursue his civil action? (2) Did the trial court err by dismissing the action based on the plaintiff’s failure to appear in such circumstances?

The Fifth District Court of Appeal held in an unpublished decision, Hamilton v. Yates (May 4, 2015, F069608) 2015 WL 2095707, that: (1) the prisoner plaintiff failed to provide the court with a reasonable option for conducting the jury trial; and (2) the trial court was correct in granting the motion to dismiss the action.

After granting review and after briefing was complete, the Supreme Court transferred the case to the Court of Appeal for reconsideration in light of the Attorney General’s concession that the trial court improvidently dismissed plaintiff’s complaint because the court could have allowed him to appear for trial by telephone.

Review Denied (with dissenting justices)

None.

Depublished

None.

July 31, 2016

Legislature overrules Supreme Court family law decision

In In re Marriage of Davis, the Supreme Court a year ago interpreted a statute that determines whether spouses are living together, which affects the status of acquired property.  The court concluded that, even if the spouses are living separate lives, “[t]he statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.”

The Legislature did not approve of the court’s interpretation.  It has passed and the Governor last week signed a bill that specifically says it’s meant to abrogate Davis.  This is the way the Legislative Counsel summarizes the legislation:  “This bill would define ‘date of separation’ for purposes of the Family Code to mean the date that a complete and final break in the marital relationship has occurred, as evidenced by the spouse’s expression of his or her intent to end the marriage and conduct that is consistent with that intent.  The bill would direct a court to take into account all relevant evidence in determining the date of separation.”

The Legislature has voted to overturn Supreme Court decisions before, although the governor has vetoed that kind of legislation more than once.

July 29, 2016

Anti-SLAPP, death penalty opinions filing Monday; possible Tuesday special filing of cellphone search opinion [UPDATED]

On Monday, the Supreme Court will file opinions in Baral v. Schnitt and People v. Jackson, which were argued on the early-May calendar.

We expected a Monday filing also of the opinion in People v. Macabeo, because that’s the last regular filing day within the 90-day deadline for the case.  Tuesday is the actual 90th day.  A special filing on Tuesday would be a rare event and would suggest there’s some last-minute drafting happening, possibly on a separate opinion.

Macabeo comes in the aftermath of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision.  It is expected to answer these questions:  (1) May law enforcement officers conduct a search incident to the authority to arrest for a minor traffic offense, so long as a custodial arrest (even for an unrelated crime) follows?  (2) Did Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] require the exclusion of evidence obtained during the warrantless search of the suspect’s cell phone incident to arrest, or did the search fall within the good faith exception to the exclusionary rule (see Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419, 180 L.Ed.2d 285]) in light of People v. Diaz (2011) 51 Cal.4th 84?

Baral raises the issue whether a special motion to strike under the anti-SLAPP statute — Code of Civil Procedure section 425.16 — authorizes a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute.

Jackson is an automatic appeal from a November 2005 judgment of death.  It was originally scheduled for argument over a year ago, but the court continued the argument and asked for supplemental briefing on these questions:  What is the significance, if any, of Evidence Code section 1108 with respect to the cross-admissibility of evidence of the sexual assault on Myrna Mason?  Among the subsidiary questions counsel may wish to address are the following:  1. In light of the amended information (CT 713-714) and the jury instruction given in this case on the elements of burglary (CALJIC No. 14.50; CT 4138), was defendant accused of a sexual offense against Geraldine Myers within the meaning of Evidence Code section 1108 and People v. Story (2009) 45 Cal.4th 1282, 1294?  2. What evidence, other than the Mason sexual offenses, would support a jury finding that defendant entered Myers’s home with the intent to commit a sexual offense?  (See People v. Falsetta (1999) 21 Cal.4th 903, 920, 923.)  3. Assuming defendant was accused of a sexual offense against Myers, would the trial court have been required to exclude evidence of the Mason sexual offenses under Evidence Code section 352 in a separate trial of the Myers charges?  (Falsetta, supra, 21 Cal.4th at pp. 916-919.)  4. Do the provisions of Evidence Code section 1108 provide a basis to uphold the trial court’s denial of defendant’s motion to sever the Mason charges from the Myers charges?

The Baral and Jackson opinions can be viewed Monday starting at 10:00 a.m.

[Update:  No Tuesday filing for Macabeo.  The court this afternoon vacated submission of the case and asked for supplemental briefing regarding the effect on the case, if any, of People v. Robinson (2010) 47 Cal.4th 1104, 1124-1126.  The order resets the 90-day clock, which will start running again when the last supplemental brief is filed.]

July 28, 2016

Summary of July 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, July 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

None.

Supplemental Briefing Ordered

Parker v. State of California, S215265 – Supplemental Briefing Ordered—July 20, 2016

This case presents the following question: Are the Penal Code sections that regulate “ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, notwithstanding that the ammunition may also be used in some rifles” (Pen. Code, § 16650, subd. (a)) unconstitutional on their face for failure to afford adequate notice of the regulated conduct and/or failure to provide sufficient guidelines to prevent arbitrary enforcement?

The Fifth District Court of Appeal held in a published decision, Parker v. State of California, 164 Cal.Rptr.3d 345, that: (1) the court would apply more lenient heightened scrutiny; and (2) statutes regulating the sale, display, and transfer of “handgun ammunition” were unconstitutionally vague.

The parties are now directed to submit supplemental letter briefs addressing whether the passage of Senate Bill No. 1235 (2015-2016 Reg. Sess.) has rendered plaintiff’s claims moot.

Review Denied (with dissenting justices)

Friends of Martin’s Beach v. Martin’s Beach 1 LLC, S235039 –Review Denied [Werdegar, J., voting for review] and Opinion Depublished—July 20, 2016

This case presents the following question: In a dispute between the public and property owners over the use of a road, parking area and the inland dry sand of a popular beach, does a provision in the California Constitution or the common law of dedication confer upon the public a right of access over private property?

The Court of Appeal, First District, Division Two, held in a (now depublished) decision, Friends of Martin’s Beach v. Martin’s Beach 1 LLC (2016) 246 Cal.App.4th 1312, that: (1) neither the United States nor California held any public interest in oceanfront land, under the public trust doctrine, to access the ocean from the beach; (2) the facts alleged in the complaint were sufficient to establish a common law dedication of oceanfront property for beach access; (3) the trial court’s judgment quieting title to the property, including “off-shore submerged tidelands,” in landowners improperly exceeded the scope of the cross-complaint; and (4) the state was not an indispensable party.

The Supreme Court denied review but ordered the Court of Appeal’s opinion depublished.  Justice Werdegar voted to grant review.

Depublished

Friends of Martin’s Beach v. Martin’s Beach 1 LLC, S235039 –Depublished Court of Appeal Opinion—July 20, 2016

See discussion above.

July 28, 2016

Divided court allows arbitrator to decide whether classwide arbitration is allowed

In a rare 4-3 decision, the Supreme Court today holds an arbitrator, rather than only a court, is allowed to decide whether an arbitration agreement permits a classwide arbitration.  The majority’s opinion in Sandquist v. Lebo Automotive, Inc. — by Justice Kathryn Werdegar for herself and Chief Justice Tani Cantil-Sakauye and Justices Goodwin Liu and Mariano-Florentino Cuéllar — concludes that “[n]o universal one-size-fits-all rule allocates that question to one decision maker or the other in every case.”  Rejecting an argument that only federal law resolves the issue, the court interprets the parties’ arbitration agreement under California law, finding that “the parties’ arbitration provisions allocate the decision on the availability of class arbitration to the arbitrator, rather than reserving it for a court” and that the Federal Arbitration Act does require a contrary conclusion.

Justice Leondra Kruger dissents.  Writing for herself and Justices Ming Chin and Carol Corrigan, she states that, under the federal legislation as interpreted by the U.S. Supreme Court, “the availability of class arbitration under the parties’ agreement is a ‘gateway question of arbitrability’ that is presumptively for a court to decide.”

The Supreme Court affirms the Second District, Division Seven, Court of Appeal.  The court disapproves a 2014 decision by the Fourth District, Division One, and a 2012 decision by the Second District, Division Three.  It also concludes that one of its own opinions, issued in 1982, is no longer good law because of intervening U.S. Supreme Court case law.

There hasn’t been a 4-3 split for quite a while, not since People v. Grimes was decided in January 2015.  (Some might count the August 2015 People v. Prunty opinion as a 4-3 decision, but we list it as a 5-2 division.)  The court granted rehearing in Grimes, but rehearing in Sandquist is unlikely because it’s not a “transition” case.

July 27, 2016

Ninth Circuit sends law firm finance question to Supreme Court [UPDATED]

The Ninth Circuit today asks the Supreme Court to answer this question:  “Under California law, does a dissolved law firm have a property interest in legal matters
that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?”  The answer is relevant to the case — In the Matter of Heller Ehrman LLP — because, the federal court says, it will help determine whether there has been a fraudulent transfer under the Bankruptcy Code.

The question comes just a few weeks after the Second Circuit asked for help on an insurance law issue (the Supreme Court has yet to docket the Second Circuit’s request) and the Ninth Circuit indicated it would be sending its own California insurance question to the court.

Before these recent actual or probable requests, it had been almost a year since a court had asked the Supreme Court to answer a state law question.

[July 28 update:  the Supreme Court docketed the Ninth Circuit’s request today.  The court is titling the case, Heller Ehrman LLP v. Davis Wright Tremaine LLP.]

July 27, 2016

Arbitration opinion filing tomorrow; three filings expected Monday

Tomorrow morning, the Supreme Court will file its opinion in Sandquist v. Lebo Automotive, Inc., which was argued on the early-May calendar.

Sandquist raises the issue if the trial court or the arbitrator decides whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue.

Because only the Sandquist opinion is filing tomorrow, it looks like next Monday will be a busy filing day.  That’s the last regular filing day within the 90-day deadline for three opinion-less early-May calendar cases — People v. Macabeo (warrantless cellphone search), Baral v. Schnitt (anti-SLAPP), and People v. Jackson (death penalty).  There is one other case from that calendar yet to be decided — Friends of the College of San Mateo Gardens v. San Mateo County Community College District — but the court asked for post-argument supplemental briefing and did not resubmit the case (restarting the 90-day period) until June 23.

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

July 26, 2016

“U.S. judges say California’s top court is jeopardizing constitutional rights”

Maura Dolan reports in today’s Los Angeles Times about two concurring opinions in yesterday’s en banc Ninth Circuit decision in Curiel v. Miller.  The case is another chapter in the interrelationship between state appellate courts on the one hand and, on the other hand, federal courts with their now-limited powers to grant habeas corpus relief.

A prerequisite to a federal court even considering the merits of Curiel’s habeas corpus petition was the timeliness of his earlier habeas petition to the California Supreme Court, a petition that was denied with no more than a citation to two of its earlier opinions.  The Ninth Circuit interprets the brief denial order to mean that the Supreme Court found the petition was timely.

The concurring judges urge a better system so the federal courts don’t need to decipher the Supreme Court’s thousands of annual habeas petition denial orders.  One of the judges — Stephen Reinhardt — sympathizes with “the plight of the California Supreme Court with its massive potential caseload and severely strained resources,” and criticizes the federal law — “the role of the federal courts in habeas cases has been eviscerated and federal judges have been compelled to say (perhaps in contravention of their oath of office):  ‘I know this result is unfair, unjust, and unconstitutional, but I have been told that I must nevertheless defer to the view of the state courts—courts that may have had neither the time nor resources to fully review the constitutional errors involved.’”

The next word on the timeliness of state habeas petitions is likely to come in Robinson v. Lewis, where the Supreme Court has agreed to answer a Ninth Circuit plea for assistance.

July 21, 2016

Supreme Court clears way for state testing for possible Delta water project

In Property Reserve, Inc. v. Superior Court, the Supreme Court today holds that the Department of Water Resources can use precondemnation judicial procedures instead of a classic condemnation action to get authority to conduct environmental and geological testing of private property.  The opinion by Chief Justice Tani Cantil-Sakauye — for six members of the court — will allow the Department to proceed with its investigation into the feasibility of building a new tunnel or canal in the Sacramento-San Joaquin Delta to deliver water from the North to Central and Southern California.  The court concludes that “the procedure established by the precondemnation entry and testing statutes satisfies the requirements of the California takings clause when the procedure is reformed to comply with the jury trial requirement of that clause,” meaning that property owners have the right to a jury determination of damages caused by the testing.

Justice Goodwin Liu writes a concurring opinion because he is “not persuaded by the court’s reasoning and would reach [the same result] on different grounds.”

The Supreme Court reverses the Third District Court of Appeal.

July 21, 2016

Trial court has discretion to strike gang enhancement

In People v. Fuentes, the Supreme Court today holds that trial courts have the discretion to strike sentencing enhancement allegations for gang-related offenses.  Resolving a conflict in the case law, the court’s unanimous opinion by Justice Ming Chin interprets the relationship between a specific statute and a general statute, and discusses the meaning of the phrase “notwithstanding any other law” in the specific statute.

The court affirms the Fourth District, Division Three, Court of Appeal.  It disapproves a 2011 decision of the Fourth District, Division One.

July 20, 2016

When to submit letters supporting petitions for review

When a party petitions the Supreme Court for review, non-parties can submit letters to the court in support of review.  (Rule 8.500(g).)  Those letters can be effective.  (See here and here).

The rules specify when a petition must be filed, but there is no fixed deadline for a supporting letter.  We usually advise getting the letter on file before the court’s staff starts work on the conference memo regarding the petition, a time we used to estimate to be around 20 days after the petition’s filing, which is when the answer to the petition is due.  That’s probably still good advice, but we now understand that taking a bit longer on the letter — even up to five weeks after the petition is filed — might not hurt.

Our current understanding is that, when a petition is filed, the case is assigned to an initial conference that will occur about five weeks later.  (The court conferences on petitions for review most Wednesdays.)  However, a petition is often not submitted at the initial conference to which it is assigned, but is continued to a later conference, usually for logistical reasons that are unrelated to the significance or merits of the issue presented.  (Occasionally, a justice will have a petition continued after she or he reads the conference memo (see next paragraph), but the more common reason for a continuance is that there are older petitions that have to be considered first.)

Court central staff prepares conference memos for each petition.  Those memos are typically distributed to the justices and their staffs about a week before the conference at which the petition will be considered.  Central staff will typically start work on the conference memo about a week before that.

The critical factor about when work will start on a conference memo — our rule-of-thumb deadline for submitting a letter in support of review — thus seems to be whether the petition for review will be continued to a later conference.  But, because the logistical reasons for a possible continuance are unknowable outside the court, three weeks after the petition for review is filed appears to still be the safest target date.

We are also informed that even last-minute supporting letters are considered, generally causing preparation of a supplemental conference memo, but we don’t recommend waiting until the last minute.  We would rather have our client’s supporting letter — or letters by others supporting our client’s petition for review — in the central staff attorney’s hands before that attorney is working on the conference memo.

Finally, don’t be concerned if, whenever supporting letters are submitted, they don’t appear on the court’s online docket.  They just don’t.

July 20, 2016

Eminent domain, gang enhancement opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in Property Reserve, Inc. v. Superior Court and People v. Fuentes, which were both argued on the early-May calendar.

The court limited review in Property Reserve to these issues:  (1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking?  (2) Do the environmental testing activities set forth in the February 22, 2011, entry order constitute a taking?  (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?

In Fuentes, the court will address whether the trial court has the power under Penal Code section 1385 to dismiss a Penal Code section 186.22 enhancement for gang-related crimes, or whether the court is limited to striking the punishment for the enhancement in accordance with subdivision (g) of section 186.22.

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

July 18, 2016

Supreme Court unanimously affirms death sentence

In People v. Simon, the Supreme Court today affirms the death sentence for a 1995 double murder in Riverside County.  The unanimous opinion is authored by Justice Mariano-Florentino Cuéllar.

July 15, 2016

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Simon, an automatic appeal from a November 2001 judgment of death.  Simon was argued on the late-May calendar.  This will be the first opinion for cases from that calendar.

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

July 14, 2016

Supreme Court’s order to hear another Batson case suggests earlier death penalty affirmance is at risk

In a habeas corpus proceeding (In re Williams), the Supreme Court yesterday issued an order to show cause why relief should not be granted “on the ground that the prosecutor exercised peremptory challenges against prospective jurors with racially discriminatory intent.”  The order is significant not only because Batson issues have divided the court before, but also because the court three years ago rejected the same prisoner’s Batson claims in his direct appeal from a death penalty judgment.

In People v. Williams (2013) 56 Cal.4th 630, the court affirmed the death sentence, finding no error in the trial court’s denial of objections to the prosecution’s peremptory challenges of 5 African-American women prospective jurors, despite the judge saying, “I have found that the black women are very reluctant to impose the death penalty.”  Justices Kathryn Werdegar and Goodwin Liu dissented, Justice Liu stating that the majority’s “deference [to the trial court] in these circumstances all but drains the constitutional protection against discrimination in jury selection of any meaningful application.”

Two of the four members of the People v. Williams majority — Justices Joyce Kennard and Marvin Baxter — have since retired.  If their replacements — Justices Mariano-Florentino Cuéllar and Leondra Kruger — agree with Justices Werdegar and Liu on the Batson issue, yesterday’s order to show cause could be considered a de facto transition rehearing grant, similar to when Justices Cuéllar and Kruger voted with Werdegar and Liu to grant rehearing in People v. Grimes.

July 14, 2016

You can still cite these four opinions, although the precedential effect of one of them is uncertain

Yesterday was the first Supreme Court conference since the effective date of the new rule that ended the automatic depublication of published Court of Appeal opinions when the Supreme Court grants review.  At the conference, the court granted review of 4 published Court of Appeal opinions, all of which now remain citeable.

There are some caveats, however.  First, because of the grants of review, the opinions (except for one, perhaps (see below)) no longer have “binding or precedential effect, and may be cited for potentially persuasive value only.”  (Rule 8.1115(e)(1).)  Second, “Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.”  (Ibid.; see also rule 8.1105(e)(1)(B) [“any such Court of Appeal opinion, whether officially published in hard copy or electronically, must be accompanied by a prominent notation advising that review by the Supreme Court has been granted”].)

Here is the very first batch of published opinions that are staying on the books despite the grant of review:  People v. Gonzalez, People v. Davis, People v. Johnston, and People v. Valdez.

Valdez presents an interesting situation regarding the new rule.  The Supreme Court there denied the petition for review, but granted review on its own motion at the Court of Appeal’s request, and transferred the case back to the Court of Appeal with directions to vacate its decision and to reconsider the cause, including the People’s motion to abate the proceedings in light of the defendant’s death.  Under the new rule, the grant of review doesn’t depublish the Court of Appeal’s opinion, but the opinion’s precedential effect is unclear.

Rule 8.1115(e) describes the precedential effect only of opinions (1) “[p]ending review and filing of the Supreme Court’s opinion” and (2) “[a]fter decision on review by the Supreme Court,” but neither provision applies in Valdez because there will be no Supreme Court opinion and there has been no Supreme Court decision (see rule 8.528(d) [“After ordering review, the Supreme Court may transfer the cause to a Court of Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders” (emphasis added)]).  Also, the Supreme Court can’t use in Valdez its power under the new rule 8.1115(e)(3) to order that an opinion is not citable or to specify the precedential effect of an opinion, because that power applies only to “an opinion covered by (1) or (2),” and the Valdez opinion is not one of those.

The only way for the court to eliminate the uncertainty whether superior courts are bound by the Valdez opinion might be to depublish the opinion on its own motion under rules 8.1105(e)(2) and 8.1125(c)(2).  That would be an ironic disposition for one of the first opinions covered by the new anti-automatic-depublication rule.

July 14, 2016

Supreme Court invalidates one court rule, upholds another, regarding the Indian Child Welfare Act

In In re Abbigail A., the Supreme Court today holds invalid a state court rule that requires juvenile courts to treat a child “as . . . an Indian child” under the federal Indian Child Welfare Act if the child is simply eligible for tribal membership, even if he or she is not an Indian child under the Act.  The unanimous opinion by Justice Kathryn Werdegar concludes the rule “conflicts with the [California] Legislature’s intent to enforce ICWA by codifying its provisions.”

The court has no problem with a related rule, however, one which, among other things, requires affirmative steps be taken to secure tribal membership for a minor who is in fact an Indian child.  The court notes that “[t]ribal membership offers significant benefits to an Indian child, including the opportunity to develop a political, cultural, and social relationship with the tribe, and access to federally funded programs.”

The court reverses in part the Third District Court of Appeal, which had found both rules to be invalid.

July 13, 2016

A Trekkie on the court?

The San Diego Comic-Con is advertising that Justice Mariano-Florentino Cuéllar will participate next Thursday afternoon in a program titled, “Star Trek: Where Lawyers Boldly Go.”  Here’s the program description:Star Trek

California Supreme Court Justice Mariano-Florentino Cuéllar, former judge Paul Grewal (now vice president and general counsel of litigation for Facebook) and attorneys Neel Chatterjee (lead trial counsel for Facebook in the lawsuit depicted in the film The Social Network), Joshua Gilliland (The Legal Geeks), Jessica Mederson (The Legal Geeks), Christine Peek, and Megan Hitchcock will boldly go across the top legal issues in Star Trek.  This panel will focus on specific episodes from all of the Star Trek series that highlight the best legal issues, from positively showing women in the practice of law to civil rights, trial advocacy, and due process.

July 13, 2016

Another Indian Child Welfare Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in In re Abbigail A., which was argued on the early-May calendar.

Abbigail A. raises an issue under the Indian Child Welfare Act and follows last week’s decision in In re Isaiah W., where the court held a parent could delay challenging a juvenile court’s determination that no notice need be given under the Act.

Abbigail A. is expected to answer whether 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.

As in Isaiah W., the United States is an amicus curiae in Abbigail A., but the court specifically solicited the amicus brief in Abbigail A.  The court asked the federal government to discuss “whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court are preempted to the extent those rules purport to require California courts to apply the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) in child custody proceedings involving a minor who is not an ‘Indian child’ as defined in ICWA.  (See 25 U.S.C. § 1903(4); cf. id., §§ 1902 & 1921.)”

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

July 12, 2016

California Academy of Appellate Lawyers opposes Prop. 66

The California Academy of Appellate Lawyers has issued a statement opposing Proposition 66, the November ballot measure designed to speed up California’s death penalty process.  (A competing initiative — Proposition 62 — would eliminate the death penalty in the state altogether.)  [Disclosures:  I’m an Academy member and past president; other Horvitz & Levy attorneys are also members; the current president is “of counsel” to the firm.]

Stating that it “neither supports nor opposes the death penalty or reasonable measures to clear the backlog of death penalty appeals,” the Academy calls the initiative an “ill-considered proposition” that “would impose crushing burdens on California’s Supreme Court and intermediate appellate courts, disrupting and delaying thousands of other cases for years to come.”

I have previously written that “[t]he disruption to the state’s judicial system if th[e] initiative became law cannot be overstated.”

July 11, 2016

Death penalty unanimously reversed because of dismissal of one prospective juror

The Supreme Court today affirms the conviction, but reverses the death penalty, in People v. Zaragoza.  The unanimous opinion by Justice Mariano-Florentino Cuéllar holds the trial court erred in the death qualification of the jury — one prospective juror was improperly excused for cause based on what the Supreme Court concludes were ambiguous jury questionnaire answers concerning whether she could vote for a death penalty verdict.  The prospective juror’s “written responses did not clearly reveal personal views that would interfere with her ability to judge the penalty based on the evidence presented.”

July 11, 2016

Supreme Court upholds conviction of self-represented, absentee defendant

Saying that a defendant “has no one but himself to blame for any failure to present a defense,” the Supreme Court today in People v. Espinoza holds a trial court acted properly in proceeding with a trial in the defendant’s voluntary absence after allowing the defendant to be his own lawyer.  In a unanimous opinion by Chief Justice Tani Cantil-Sakauye, the court also finds no problem with the denial of a one-day continuance when the defendant was still represented by a public defender.

The court reverses the Sixth District Court of Appeal.

July 8, 2016

No conference held the week of July 4, 2016

The Court held no conference this week.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

July 8, 2016

Insurance questions from the East — and maybe another one from the Ninth Circuit — for the Supreme Court [UPDATED x2]

Rule 8.548 allows many different non-California courts to ask the California Supreme Court for help on state law questions.  A request can come from “the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth.”  Almost always, it’s the Ninth Circuit that uses rule 8.548 (see, most recently, here), but the D.C. Circuit has invoked the procedure at least twice.

Now, however, the Second Circuit wants the Supreme Court to answer a question.  A three-judge panel in Migdal Insurance Company Ltd. v. The Insurance Company of the State of Pennsylvania, yesterday said it wants the court to resolve these issues:  “(a) Where the insurance policies of two insurance companies (identified in this question as A and B) cover the same risk, the policy of company A is primary and contains no ‘other insurance’ clause, and the policy of company B, which is also primary, contains an ‘other insurance’ clause stating, ‘This insurance is excess over: . . . Any of the other insurance or your self-insurance plan that that [sic] covers a loss on the same basis,” is company A entitled under California law to equitable contribution from company B?,” and “(b) Under the circumstances described above and where the amount Company A paid to settle a case exceeds the policy limit of Company B’s policy, is a clause in the insurance policy of company B stating, ‘All payments made under any local policy issued to you by us or any other insurance company will reduce the Limits of Insurance of this policy’ enforceable under California law?”  (Footnotes omitted.)

Interestingly, both sides in the Migdal Insurance case opposed sending the case to the Supreme Court.  The Second Circuit, however, said the parties’ arguments that California law is “clear in favor of their opposing positions . . . reinforce our
view that California law is not clear on the questions we have certified.”

Meanwhile, another insurance law question might soon be headed the Supreme Court’s way from the usual source.  The Ninth Circuit last month entered an order in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc., asking the parties to address at oral argument if the Supreme Court should be asked to answer “whether there is an ‘occurrence’ under a commercial general liability policy when claims for negligent supervision, hiring, or retention are made against an employer and the underlying injury is caused by the intentional act of an employee.”

Unlike in Migdal Insurance, the parties in Liberty Surplus are split about whether the Supreme Court should be asked to resolve the issue.  At the Liberty Surplus argument earlier this week, the insured’s attorney encouraged the referral and the insurance carrier’s counsel said the law was clear.  The Ninth Circuit seems to be leaning towards asking for help.  One member of that court’s panel — Judge Paul Watford — said he had read five or ten times a “but see” cite in an earlier Supreme Court decision and confessed, “I can’t for the life of me figure out what [the court was] trying to signal to the outside world.”

[July 28 update:  The Supreme Court docketed the Migdal request on July 27, but is treating the request as filed on July 14, the day it was received from the Second Circuit.]

[July 29 update:  On its own motion, the Supreme Court yesterday extended until August 16 the time to file rule 8.548(e) letters supporting or opposing the Second Circuit’s request.  That’s 20 days after the request was docketed rather than 20 days after when the request was received and treated as filed.]

July 8, 2016

Self-represented defendant, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Espinoza and People v. Zaragoza, which were both argued on the early-May calendar.

Espinoza raises these issues:  (1) Did the trial court err in continuing trial in defendant’s absence without a valid waiver of his trial rights or appointment of counsel after defendant, who was out of custody and representing himself, voluntarily failed to appear for his ongoing trial?  (2) Was reversal required because the trial court refused to grant defendant a one-day continuance after it granted his motion during jury selection to represent himself?

Zaragoza is an automatic appeal from a May 2001 judgment of death.

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

July 7, 2016

Supreme Court expands ability to challenge lack of Indian Child Welfare Act notice

In In re Isaiah W., the Supreme Court today allows parents to delay challenging a court’s determination that no notice need be given under the Indian Child Welfare Act, which requires notification to an Indian child’s tribe of pending foster care placement or parental rights termination proceedings.  The 6-1 opinion by Justice Goodwin Liu holds that a mother did not waive objecting to a no-notice finding by failing to appeal from a ruling — made after the finding — that removed her child and placed him in foster care.  Instead, the mother could raise that issue on an appeal from a later order terminating her parental rights.  The court so rules because the Act “imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child.”  The court concludes that “the federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child.”

Justice Ming Chin dissents, criticizing the court’s better-later-than-never approach.  He says the majority is improperly “carv[ing] out an exception for ICWA issues to the general California rule in dependency matters requiring an issue to be raised on appeal at the first opportunity.”  Justice Chin laments that the child in this case “is paying a high price, and other children will continue to pay a high price, due to the majority’s permitting mother to make this delayed ICWA claim.”

The court’s opinion reverses the Second District, Division Three, Court of Appeal.  The Supreme Court also disapproves a 1995 Fifth District opinion, but is in agreement with a 2009 decision by the First District, Division One, a 2002 decision by the Fourth District, Division One, and a 2001 Third District decision.

July 7, 2016

Summary of June 29, 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, June 29, 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

California Cannabis Coalition v. City of Upland, S234148 – Review Granted – June 29, 2016

This case presents the following question: Is a proposed initiative measure that would impose a tax subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election instead of a special election?

The Court of Appeal, Fourth District, Division Two, held in a published decision, California Cannabis Coalition v. City of Upland (2016) 245 Cal.App.4th 970, that (1) Article XIII C, section 2 does not apply to the California Cannabis Coalition’s (CCC) initiative, which would adopt regulations for the operation of medical marijuana dispensaries in Upland, including requiring dispensaries to pay an annual licensing and inspection fee.  The court reasoned that Article XIII C applies only to taxes imposed by a local government and is silent as to taxes imposed by initiatives.

Review Denied (with dissenting justices)

None.

Depublished

None.

July 6, 2016

Indian Child Welfare Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in In re Isaiah W., which was argued on the early-May calendar.

The case raises the issue whether a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessary precludes the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights.  The United States is one of three amici curiae in this case.

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

June 30, 2016

Summary of June 22, 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, June 22, 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

Hernandez v. Restoration Hardware, Inc., S233983 – Review Granted – June 22, 2016

This case presents the following question: Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)

After a bench trial in a class action against a retailer under the Song–Beverly Credit Card Act, class representatives requested that the court order an attorney fees award of one quarter of the total maximum fund created by the judgment to be payable to class counsel from the fund. The defendant agreed not to contest that request. Muller, a class member, requested the court order notice of the attorney fee motion be sent to all class members. The court denied Muller’s request, granted the attorney fee motion, and entered judgment. Muller appealed from the judgment. The Court of Appeal, Fourth District, Division One, held in a published decision, Hernandez v. Restoration Hardware, Inc. (2016) 245 Cal.App.4th 651, that the customer who was not a class representative was not a “party of record,” and thus could not appeal.

Cushfield Maintenance West v. Superior Court (Hall), S234604 – Review Granted & Held – June 22, 2016

The court granted review and deferred further action pending disposition of Williams v. Superior Court, S227228, which raises the issues:  (1) Is the plaintiff in a representative action under the Labor Code’s 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.)

Review Denied (with dissenting justices)

None.

Depublished

None.

June 30, 2016

Sixth Amendment limits experts’ ability to relate hearsay

In People v. Sanchez, the Supreme Court today holds that the Sixth Amendment, as interpreted by the U.S. Supreme Court in Crawford v. Washington (2004) 541 U.S. 36, precluded a prosecution expert from relating “case-specific statements . . . concerning [the] defendant’s gang membership.”  The comprehensive unanimous opinion by Justice Carol Corrigan reverses jury findings that supported street gang enhancements.  The court disapproves a line of its previous decisions on experts and hearsay.Galenus

The court’s opinion includes extended general discussions about hearsay and the permissible scope of expert testimony.  Here’s one statement that is likely to be quoted often in future appellate opinions and briefs:  explaining that experts may testify to some second-hand information, the court says, “A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand.”

The court reverses the Fourth District, Division Three, Court of Appeal.  Actually, the Supreme Court doesn’t reverse the Court of Appeal, it reverses the true findings on the street gang enhancements, but the Court of Appeal did affirm the gang enhancements that the Supreme Court reverses.  “[T]he Supreme Court normally will affirm, reverse, or modify the judgment of the Court of Appeal, but may order another disposition.”  (Rule 8.528(a).)  This is one of those other dispositions.

June 30, 2016

Supreme Court limits retroactivity of Three Strikes Reform Act

In People v. Conley, the Supreme Court today holds that defendants sentenced under a superseded Three Strikes law and whose judgments were not final as of the date the 2012, voter-approved Three Strikes Reform Act (Proposition 36) took effect are not entitled to automatic resentencing under the Reform Act’s resentencing provision.  The unanimous opinion by Justice Leondra Kruger also concludes, however, that those defendants may petition for a recall of their sentences.  This means that those defendants’ resentencing depends on a trial court determination whether resentencing would pose an unreasonable risk of danger to public safety.

Justice Kathryn Werdegar signs the court’s opinion, but writes separately to “explain [the] significance” of an earlier retroactivity opinion she authored for the court.  Justices Goodwin Liu and Mariano-Florentino Cuéllar sign Justice Werdegar’s concurring opinion.

The court affirms the Third District Court of Appeal.  The opinion states that the Supreme Court granted review “to resolve a conflict in the Court of Appeal,” but it does not identify any cases it is disapproving.  Not being Proposition 36 experts, we’re not sure why that is, but it could be that the conflict exists in unpublished and/or depublished-by-review opinions.

June 29, 2016

Confrontation clause, Three Strikes opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Sanchez  and People v. Conley, which were both argued on the April calendar.  It’s the last regular filing day before the 90-day deadline for April cases.

In Sanchez, the court will decide whether defendant’s Sixth Amendment right to confrontation was violated by a gang expert’s reliance on testimonial hearsay (Crawford v. Washington (2004) 541 U.S. 36).

Conley raises the issue:  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?

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

June 28, 2016

Historical Society previews its history of the Supreme Court book

The California Supreme Court Historical Society [disclosure:  I serve on the Society’s board] just published its spring/summer newsletter.  This newsletter is devoted entirely to a preview of the Society’s comprehensive history of the court — “Constitutional Governance and Judicial Power” — which is scheduled to be published next month.  The newsletter includes extended excerpts from each of the book’s seven chapters:CSCHS-2016-Newsletter-Spring-Summer_Page_01

Chapter one:
Pioneers on the Bench 1849–1879
Charles J. McClain

Chapter Two:
Creating a Court System 1880–1910
Gordon Morris Bakken

Chapter Three:
The Age of Reform 1910–1940
Lucy E. Salyer

Chapter Four:
The Gibson Era 1940–1964
Charles J. McClain

Chapter Five:
The Liberal Court:  Ascendency and Crisis 1964–1987
Harry N. Scheiber

Chapter Six:
The Lucas Years 1987–1996
Bob Egelko

Chapter Seven:
Defining a Branch, Finding the Center:  The George Court 1996–2010
Molly Selvin

June 27, 2016

Supreme Court affirms one death sentence, reverses another

The Supreme Court today issues opinions in two direct death penalty appeals, reversing in one and affirming the other.  Both decisions are unanimous.

The reversal comes in People v. Becerra.  Possibly setting a brevity record for a death penalty case, the court’s 11-page opinion by Justice Carol Corrigan finds Faretta error, holding the trial court erroneously terminated the defendant’s right to self-representation.

People v. Clark is the opposite of Becerra, both in length and result.  The court’s 162-page opinion by Justice Mariano-Florentino Cuéllar affirms the death sentence, although it does reverse two of five special circumstance findings.

June 24, 2016

Temporary archive of May and June oral argument live streams

The Supreme Court today announced a temporary archive of the live-streamed oral arguments from the early-May, late-May, and June calendars.  The court reports over 7,000 live views of those arguments.

According to the announcement, a permanent archive will be established at the time of the court’s next calendar, in September.

June 24, 2016

Two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Becerra and People v. Clark, which were both argued on the April calendar.

Becerra is an automatic appeal from an October 1997 judgment of death.  Prior to oral argument, the court sent a focus letter 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.

Clark is an automatic appeal from a December 1997 judgment of death.

Opinions in the other two undecided April calendar cases — People v. Sanchez (a Sixth Amendment right to confrontation case) and People v. Conley (a Three Strikes Reform Act case) — should be filing on Thursday, because that’s the last regular filing day before the 90-day deadline for decisions in those cases.

The Becerra and Clark opinions can be viewed Monday starting at 10:00 a.m.

June 23, 2016

Supreme Court limits component parts doctrine defense

In Ramos v. Brenntag Specialties, Inc., the Supreme Court today holds a foundry worker can continue with his lawsuit against companies that supplied products for use in the foundry’s manufacturing process, where participating in that process allegedly sickened the worker.  [Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]  The unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that the suppliers could not assert the component parts doctrine as a defense because the doctrine “does not apply when the product supplied has not been incorporated into a different finished or end product but instead, as here, itself allegedly causes injury when used in the manner intended by the product supplier.”

The court stresses, however, that, although the component parts doctrine is inapplicable to the case, the worker still has remaining obstacles to establishing liability.  The opinion expressly does “not address the applicability or scope of other products liability doctrines that may be implicated.”

The court affirms the Second District, Division Four, Court of Appeal, which had reversed an order sustaining the defendants’ demurrer.  It disapproves a 2012 decision by the Second District, Division Three.

June 23, 2016

Supreme Court affirms death sentence, with a concurring opinion about a Batson issue

The Supreme Court today unanimously affirms the death sentence in People v. Sánchez.  The death penalty was imposed for, among other things, the murder of a police officer.  As is typical of decisions in these automatic direct appeals, the court’s opinion — by Justice Ming Chin for himself and five others — rejects a host of arguments, although it does reverse the conviction on one of 26 robbery counts.

Justice Goodwin Liu writes a separate concurring opinion, about two issues he says “are ripe for reconsideration by this court” — the way to evaluate allegations based on Batson that the prosecution racially discriminated in jury selection and instructing the jury about the reliability of eyewitness identification evidence.  Justice Liu has expressed his differences about Batson issues before.

June 22, 2016

Products liability, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Sánchez, which was argued on the April calendar, and in Ramos v. Brenntag Specialties, Inc., which was argued on the early-May calendar.

Ramos will decide whether 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 are barred by the component parts doctrine.
[Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]

Sánchez is an automatic appeal from a March 1995 judgment of death.

Multiple opinion filing days are likely to continue next week.  After Ramos and Sánchez file tomorrow, there will still be four opinion-less cases from the April calendar, and next Monday and Thursday are the last regular filing days before the 90-day deadline for decisions in those cases.

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

June 17, 2016

Summary of June 15, 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, June 15, 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

Rubinstein v Doe 1, S234269—Review Granted—June 15, 2016

This case presents the following questions: (1) Does the delayed discovery rule in Code of Civil Procedure section 340.1 apply to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act must be made? (2) Does Government Code section 905, subdivision (m), apply to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009?

The Court of Appeal, Fourth District, Division One, held in a published decision, Rubinstein v. Doe 1 (2016) 245 Cal.App.4th 1037, that: (1) a delayed discovery rule applies to determine accrual of a cause of action against a public entity, (2) former student was not required to refile certificates of merit after the trial court granted her petition for relief from claims presentation requirements; (3) certificates were not required to be filed under penalty of perjury; (4) former student should have been granted leave to amend to include supporting facts in the certificates of merit; (5) former student should have been granted leave to amend to clarify allegations against fictitiously named individual defendants; and (6) erroneous service of complaint on public entity before obtaining in camera review of certificates of merit was not a proper ground for dismissal.

Dismissal in case presenting certified question of state law

Gradillas v. Lincoln General Insurance Company, S227632—Matter Dismissed—June 15, 2016

Pursuant to California Rules of Court, rule 8.548, the Supreme Court previously agreed to decide a question of California law certified by the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court had phrased the question presented as follows: “For purposes of coverage under an automobile insurance policy, what is the proper test for determining whether an injury arises out of the ‘use’ of a vehicle?”  This week, the Supreme Court dismissed the matter after the Ninth Circuit case was dismissed following a settlement.

A passenger who was sexually assaulted on an insured party bus brought action against the insurer of the party bus company, alleging the insurer breached its duty to defend and indemnify its insured.  In a published decision, Gradillas v. Lincoln Gen. Ins. Co. (9th Cir. 2015) 792 F.3d 1050, a three-judge panel of the Ninth Circuit issued an order certifying the following question of California law to the Supreme Court: “When determining whether an injury arises out of the ‘use’ of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company’s duty to defend, is the appropriate test whether the vehicle was a ‘predominating cause/substantial factor’ or whether there was a ‘minimal causal connection’ between the vehicle and the injury?”

Review Denied (with dissenting justices)

None.

Depublished

None.

June 16, 2016

No reduction of parole time for person resentenced under Prop. 47

In its first interpretation of an initiative enacted two years ago that converts certain felony offenses to misdemeanors, the Supreme Court today holds that a person resentenced under the new law cannot use credit for time served on a felony conviction to reduce a one-year parole required by the ballot measure.  The court’s unanimous opinion in People v. Morales, authored by Justice Ming Chin, concludes that the electorate who approved Prop. 47 “was informed, and it intended, that a person who benefitted from the new legislation by receiving a reduced sentence would be placed on parole for one year after completion of the reduced sentence, subject to the court’s discretion to release the person from that parole.”

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

June 16, 2016

Supreme Court reinstates conviction of former school official

In People v. Hubbard, the Supreme Court today reinstates the conviction — for misappropriation of public funds — of a former superintendent of the Beverly Hills Unified School District.  The Court of Appeal had reversed the conviction (in an unpublished opinion) because it concluded the defendant did not come within the statutory definition of those who can be liable for misappropriation — “Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys.”

The Supreme Court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes the statute doesn’t apply to all public officers, but only to those “charged with the receipt, safekeeping, transfer, or disbursement of public moneys.”  (There’s an extended discussion on this point, with lots of useful statutory construction tidbits.)  Unlike the Court of Appeal, however, the Supreme Court holds that the defendant was one of those “public officers imbued with such responsibility over public moneys.”  This was so because of the defendant’s “explicit contractual responsibilities to oversee the ‘budget and business affairs’ of the District, testimony that superintendents like [the defendant] owe a duty to safeguard school district funds, and [the defendant’s] responsibility to ensure such public funds were spent in accordance with the law.”

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

June 15, 2016

Re-sentencing, misappropriation of public funds opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Hubbard, which was argued on the April calendar, and in People v. Morales, which was argued on the early-May calendar.

Hubbard involves the conviction — for misappropriation of public funds — of a former superintendent of the Beverly Hills Unified School District.  The case includes the issue:  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?

Morales, one of many cases on the Supreme Court’s docket raising Proposition 47 issues, will decide whether excess custody credits can be used to reduce or eliminate the one-year parole period required by Penal Code section 1170.18, subdivision (d), upon resentencing under Proposition 47.

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