March 20, 2015

After legislative overruling, Supreme Court to reconsider 2012 denial of habeas relief

In In re Richards (2012) 55 Cal.4th 948, a 4-3 Supreme Court held the defendant was not entitled to habeas corpus relief from a murder conviction that had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  The majority concluded the incriminating expert testimony was not “false evidence” within the meaning of the habeas corpus statute.

Last year, the Legislature passed and the Governor signed a bill to overrule the Richards decision.  In January, the defendant filed another habeas corpus petition, this time directly in the Supreme Court.  Yesterday, the court unanimously issued an order to show cause why relief should not be granted on the ground that the defendant was convicted based on false evidence as (newly) defined in the habeas corpus statute.


March 20, 2015

Bring your computer or tablet into the Supreme Court when arguing

The Supreme Court has announced a new policy that, starting with the court’s April calendar, will allow those arguing cases to bring laptops or tablets into court for the limited purpose of helping with the argument.  It’s a self-styled “restricted public use” policy, however.  No show-and-tell, no recording.  Counsel can use the electronic devices only to look at his or her notes or the briefs or the record or whatever else might inspire eloquence.

Here’s the policy:

Only counsel and self-represented litigants may use laptop computers and electronic tablets in the courtroom.  Such devices may be used only as an aid in presenting oral argument, and may not be used to display demonstrative evidence to the court or for any other purpose.  Devices must be silenced and placed in “airplane mode” at all times.  No cellular telephones or other electronic devices are permitted in the courtroom, except for assisted listening devices.  No audio or video recording or photography is permitted in the courtroom, except in compliance with California Rules of Court, rule 1.150.  Failure to comply with these restrictions may result in the violator being removed from the courtroom.

The First District Court of Appeal has implemented the same policy.

March 16, 2015

Hong Yen Chang gets his law license, 125 years late, after Supreme Court acknowledges a “grievous wrong”

Stating that it was “past time to acknowledge that [his] discriminatory exclusion . . . from the State Bar of California was a grievous wrong,” the Supreme Court this morning granted Hong Yen Chang “posthumous admission as an attorney and counselor at law in all courts of the state of California.”

One hundred and twenty-five years ago, the court denied Chang’s admission application because he was not an American citizen and was prohibited by federal law from becoming a citizen.  Noting that revisiting the denial “requires a candid reckoning with a sordid chapter of our state and national history,” the court recounts in some detail that racist history and concludes that “the legal and policy underpinnings of our 1890 decision have been discredited.”

In a per curiam opinion, the court states that previously denying Chang admission to the bar “denied Chang equal protection of the laws . . . [and] was also a blow to countless others who, like Chang, aspired to become a lawyer only to have their dream deferred on account of their race, alienage, or nationality.  And it was a loss to our communities and to society as a whole, which denied itself the full talents of its people and the important benefits of a diverse legal profession.”

The court’s acknowledgment of past governmental and societal wrongs, and of its part in those wrongs, makes the court a truth and reconciliation commission of sorts.  Assuming that salutary role cannot help but have a positive effect.

The motion for Chang’s posthumous admission — drafted by Munger, Tolles, and Olson — was made by the Asian Pacific American Law Students Association at the University of California, Davis, and supported by the State Senate and by Chang’s descendants.

March 13, 2015

Summary of March 11, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 11, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Ardon v. City of Los Angeles, S223876—Review Granted—March 11, 2015.

This case presents the following questions: (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act (PRA) request waive those privileges and protections? (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?

After obtaining documents from a PRA request, plaintiff’s counsel informed the defendant City that she had obtained a document that appeared to have been prepared in response to two other documents listed in the privilege log and which disclosed the contents of those two other documents. The City responded that the documents had been inadvertently produced. It demanded that plaintiff’s counsel return the documents and agree not to rely on them in any way. Plaintiff’s counsel declined, contending the City had waived any claim of privilege. The City moved to compel the return of the three documents and to disqualify plaintiff’s counsel. The trial court denied the City’s motion, concluding that the production of the documents waived any privilege that previously attached to them, regardless of whether the production was due to mistake, inadvertence or excusable neglect.

The Court of Appeal, Second District, Division Six, held in a published decision, Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, that (1) disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect, do not waive any privilege that would otherwise attach to the production. Government Code section 6254.5 unambiguously expresses the Legislature’s intention that everything produced in a response to a PRA request must be accessible to everyone except in the limited circumstances stated in the statute itself. The court also held that such an exception would confer on the public entity the power to make selective disclosures through “low level employees” and thereby extinguish the provision in the PRA intended to make such disclosures available to everyone. (2) Finally, the court held that plaintiff’s counsel’s exercise of her statutory and constitutional rights to petition the government regarding a matter of public importance was entirely within the scope of permitted professional conduct, and there was thus no basis to disqualify her or any member of her law firm under Rule of Professional Conduct 2-100.

Cleveland National Forest Foundation v. San Diego Association of Governments (People), S223603—Review Granted and Issues Limited—March 11, 2015.

The question is whether an environmental impact report (EIR) for a regional transportation plan must include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals set forth in Executive Order No. S-3-05, in order to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

The Court of Appeal, Fourth District, Division One, held in a published decision, Cleveland National Forest Foundation v. San Diego Association of Governments (People) (2014) 231 Cal.App.4th 1056, that CEQA requires a discussion of mitigation alternatives that could both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented. A few examples of goals that would comply with Executive Order No. S-3-05 include: supporting the planning and development of smart growth areas through transportation investments and other funding decisions; offering incentives for transit-oriented developments in smart growth areas; coordinating the funding of low carbon transportation with smart growth development; and encouraging parking management measures that promote walking and transit use in smart growth areas.

Justice Patricia Benke dissented, disagreeing with the majority that CEQA had any impact on the substance of the EIR.

Review Denied (with dissenting justices)




March 13, 2015

Supreme Court to rule Monday on request for posthumous bar admission

On Monday morning, the Supreme Court might overrule its 125-year-old decision in In re Hong Yen Chang (1890) 84 Cal. 163, which denied a motion to admit Hong Yen Chang — a Columbia Law School graduate and a member of the New York State bar — to the California bar.  Back then, the court declared void under federal law a naturalization certificate that had been issued to Chang by a New York court and held that, under California law, Chang could not be admitted to practice because he was “not a citizen of the United States, and [was] not eligible under the law to become such.”  (See the 1882 Chinese Exclusion Act.)

We’ve noted that the Asian Pacific American Law Students Association at the University of California, Davis, has asked the Supreme Court to reconsider its earlier denial and posthumously admit Chang to the bar, and that the request has been supported by the State Senate and by one of Chang’s great nieces.

The opinion in In re Hong Yen Chang on Admission can be viewed Monday starting at 10:00 a.m.

March 13, 2015

Another successful post-calendaring continuance request

The Marriage of Davis argument is being continued from the April calendar to the court’s early May calendar based on a request filed by appellant’s counsel a week after the case was scheduled for argument.  We’re not going to stop advising counsel to tell the court before a case is calendared about their unavailability, but it does seem that the court is becoming more accommodating of those who ignore the advice.

March 11, 2015

Supreme Court grants a rehearing petition [UPDATED]

The Supreme Court today granted a petition for rehearing in the death penalty case of People v. Grimes.  As noted, rehearing in Grimes, although not necessarily expected, is not startling either.  In January, the court divided 4-3 on whether there was prejudicial error at the penalty phase of the trial and one of the justices in the majority — Marvin Baxter — has retired and been replaced.  Also replaced was the pro tem Court of Appeal justice who voted with the dissenters.  The court’s docket does not yet show who voted for rehearing, but we assume it was dissenting Justices Kathryn Werdegar and Goodwin Liu along with new Justices Mariano-Florentino Cuéllar and Leondra Kruger.  Cuéllar and Kruger replaced retired Justice Baxter and the pro tem justice and were thus able to rule on the rehearing petition.

We’ve called the grant of a rehearing petition “one of the rarest of rarities at the Supreme Court.”  And, indeed, we believe that the Supreme Court hasn’t granted rehearing in almost 20 years, when it did so in May 1996 in American Academy of Pediatrics v. Lungren (1996) 51 Cal.Rptr.2d 201.  However, the conditions are right when, as in Grimes and American Academy of Pediatrics, a court in transition issues a divided decision and a justice in the majority is replaced before a rehearing petition is ruled on.  Those conditions still exist in four cases besides Grimes (see here, here, and here):  Johnson v. California Department of Justice, People v. Johnson, People v. Mosley, and Berkeley Hillside Preservation v. City of Berkeley.  It would not be surprising to see another rehearing grant within the next few months.

[8:10 p.m. Update:  We’ve now seen the order granting the rehearing petition and our assumption is correct — the votes for rehearing were by Justices Werdegar, Liu, Cuéllar, and Kruger.]

March 10, 2015

Bait-and-switch petitions for review

If done right, your petition for review will normally have a different focus than your Court of Appeal brief had, or than your Supreme Court brief on the merits will have (if you’re skilled and lucky enough to have one of the very few petitions that are granted).  Generally, the emphasis of the petition for review should be selling the Supreme Court on the importance of the issue(s) instead of trying to convince the court how the issue(s) should be resolved.  You’ve cogently explained that the Court of Appeal decided your appeal incorrectly?  Nice.  However, that alone and $1 will probably get you only a cup of coffee, not review.

Petition for review writers can look to the Ninth Circuit for inspiration.  When the federal Court of Appeals asks the Supreme Court to answer a state law question, it — like a litigant petitioning for review — needs to convince the Supreme Court that the court’s limited time will be well spent answering the question.  We don’t know if the Ninth Circuit’s latest requests will be favorably received, but they did hit the right notes.  Besides playing the comity card, the Court of Appeals’ sales pitch in one was that “no controlling California precedent answers any of the certified questions” and that the questions “are of extreme importance to tens of thousands of employees in California.”  In the other, the Ninth Circuit said decision of the issue “could transform the terrain of California trust law.”

Erin Coe today writes on [subscription] about what makes a good petition for review in “5 Ways To Get Your Calif. Petition For Review Granted.”

Sometimes a successful petition for review will involve a little, shall we say, puffing. Maybe the petition will overstate just a bit the uncertainty in the law and tell the Supreme Court that only its guidance can save the lower courts and the bar from hopeless chaos. Then, once review is granted, the opening brief on the merits will explain to the court that there’s obviously only one way to resolve the issue and that no rational being could possibly believe otherwise.

However, there are other times when the disconnect between the petition for review and the merits briefing is not so much puffing as it is bait-and-switch.  For example, a litigant might get the court’s attention with a review-worthy issue, but then, in its brief on the merits, argue for reversing the Court of Appeal based on a different and much less important ground.  People v. Mosley, decided last week, might fall into that latter category.

The Attorney General’s petition for review in Mosley asked the Supreme Court to decide one issue:  because requiring a defendant to register as a sex offender can include a residency restriction, did the federal constitution mandate that a jury — instead of a judge — find the facts necessary to require registration?  (The Court of Appeal had held that it did and struck the defendant’s sex offender registration requirement.)  After the Supreme Court granted review, however, the Attorney General’s brief on the merits, in addition to advocating for a negative answer to the constitutional question raised in the petition for review, also argued that the court didn’t even need to answer the question — the Attorney General asserted that, as a matter of statute, the defendant in the case was not subject to the residency restriction in the first place.  The statutory argument would moot the constitutional question, because the possibility of a residency restriction was the only reason the defendant could assert a right to a jury trial regarding registration.

The case ended well for the Attorney General.  The Supreme Court decided the constitutional question and did so in the way the Attorney General wanted, and it declined to resolve the “threshold issue of statutory construction” (much to the annoyance of dissenting Justices Goodwin Liu and Kathryn Werdegar, who criticized the majority’s “highly unorthodox” choice to “avoid[ ] an issue of statutory interpretation in order to resolve the case on constitutional grounds”).

Would the Supreme Court have granted review in the case if the Attorney General had in the petition for review made the statutory argument, which, if correct, would moot the constitutional issue that ended up getting the case through the Supreme Court’s door?  Maybe, but the chances for review would have been lower because the court might have preferred to wait for a case that better presented the constitutional issue.

March 9, 2015

Ninth Circuit asks Supreme Court to answer spendthrift trust question [UPDATED]

Saying that resolution of the appeal before it “could transform the terrain of California trust law” and that the appeal “hinges on the interpretation of opaque sections of the Probate Code,” the Ninth Circuit today asked the Supreme Court to answer this question:  “Does section 15306.5 of the California Probate Code impose an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or may the bankruptcy estate reach more than 25 percent under other sections of the Probate Code?”  The case is Frealy v. Reynolds.

It’s been less than three weeks since the Ninth Circuit asked for the Supreme Court’s help on a question of California law.  Before that, it had been over a year.  We should know by the beginning of May — give or take — whether the Supreme Court will agree to decide the question.  The odds are that it will.

[March 11 update:  The Supreme Court has now docketed the Ninth Circuit’s request.]

March 6, 2015

No conference held the week of March 2, 2015

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

March 5, 2015

Supreme Court’s April calendar is two-thirds criminal

The Supreme Court has announced its April calendar.  Over two days, the court will hear arguments in six cases, four of them criminal.

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

People v. Le:  Does Penal Code section 1170.1, subdivision (f), as interpreted by People v. Rodriguez (2009) 47 Cal.4th 501, preclude a trial court from imposing both a firearm use enhancement under Penal Code section 12022.5, subdivision (a), and a gang enhancement under Penal Code section 186.22, subdivision (b)(1)(B), when the offense is a serious felony as a matter of law?
Last August, the court asked the parties to also brief whether the People adequately met their pleading burden by generically pleading the Penal Code section 186.22 enhancement under subdivision (b)(1) without greater specificity as to whether the People sought enhancement under subdivision (b)(1)(A), (b)(1)(B), or (b)(1)(C) of that section, and whether, in light of such generic pleading, the People should be estopped from relying or permitted to rely at sentencing on subdivision (b)(1)(B) of section 186.22.  (Pen. Code, § 1170.1, subd. (e); People v. Mancebo (2002) 27 Cal.4th 735.)
Note:  Now-retired Justice Joyce Kennard and Justice Goodwin Liu did not vote to grant the People’s petition for review.

People v. Ford:  Did the trial court have jurisdiction to award restitution to the victim although defendant’s probationary term had expired nine days earlier?

People v. Leon:  [This is an automatic appeal from an October 1996 judgment of death.  The court’s website does not list issues for such appeals.]

California Building Industry Association v. City of San Jose:  What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that require set asides or in-lieu fees as a condition of approving a development permit?  (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 670.)

Marriage of Davis:  For the purpose of establishing the date of separation under Family Code section 771, may a couple be “living separate and apart” when they reside in the same residence?

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

March 5, 2015

Homeowner’s attorney fee award reinstated; compassionate release denial is appealable

The Supreme Court filed two unanimous opinions this morning.

An opinion written by Chief Justice Tani Cantil-Sakauye in Tract 19051 Homeowners Association v. Kemp approves a superior court’s attorney fee award to a homeowner who was sued by his homeowners association under the Davis-Stirling Common Interest Development Act.  The Court of Appeal (Second District, Division Four) agreed with the superior court that the Act didn’t apply to the action, but, unlike the superior court, it concluded that the Act’s inapplicability precluded an attorney fee award under the Act.  The Supreme Court reverses the Court of Appeal, holding, among other things, that denying fees to the defendant homeowner “would unquestionably violate the reciprocal nature of the [Act’s attorney fee] statute and thus defeat the evident legislative intent underlying the statute.”

It has nothing to do with the issue decided by the Supreme Court, but the underlying dispute between the homeowners association and the homeowner was whether the homeowner could demolish a one-story house and build a much larger 7,000 square-foot two-story residence.  On Monday, in Berkeley Hillside Preservation v. City of Berkeley, the Supreme Court ruled mostly in favor of property owners who want to build a 6,478-square-foot house with an attached 3,394-square-foot 10-car garage.  It’s been a good week for big houses.

In the other opinion filed today — People v. Loper — the Supreme Court reverses the Fourth District, Division One, on an issue of criminal appellate procedure.  The court, in an opinion authored by Justice Kathryn Werdegar, holds that a prisoner can appeal a superior court order denying a Department of Corrections and Rehabilitation recommendation that the prisoner’s sentence be recalled and that he be granted compassionate release based on his medical condition.  The court states that “a defendant may appeal an adverse decision on a postjudgment motion or petition if it affects his substantial rights, even if someone else brought the original motion.”  It also disapproves a 1978 case from the Fourth District, Division Two, and a 1982 case from the Second District, Division Two.

March 4, 2015

Homeowners-association-attorney-fee, appealability-of-compassionate-release-denial opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two opinions.

In Tract 19051 Homeowners Association v. Kemp, the court will decide whether a prevailing homeowner is entitled to attorney fees under Civil Code section 1354 in an action by a homeowners association to enforce its governing documents as those of a common interest development when the homeowner prevailed because it was later determined that the subdivision was not such a development and its governing documents had not been properly reenacted.

The court directed the parties to address these issues in People v. Loper:  (1) Is a trial court’s order denying the recall of a sentence under section 1170, subdivision (e), appealable?  (2) Assuming such an order is appealable, what is the proper standard of review on appeal?  (3) Was the trial court’s order denying the recall of defendant’s sentence correct in this case?
Two weeks before the oral argument, the court limited the argument to whether the trial court’s denial of compassionate release under Penal Code section 1170, subdivision (e), is an appealable order.

Loper was argued on the court’s January calendar.  Argument in Tract 19051 was only four weeks ago.

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


March 2, 2015

Summary of February 25, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 25, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Laffitte v. Robert Half International (Brennan), S222996—Review Granted—February 25, 2015.

The question presented is whether Serrano v. Priest (1977) 20 Cal.3d 25, permits a trial court to anchor its calculation of a reasonable attorneys’ fees award in a class action on a percentage of the common fund recovered?

In a class action, a member of the plaintiff class objected to the settlement, appealing both the order approving the settlement and the final judgment. The defendant challenged both the settlement notice regarding the award of attorneys’ fees and the amount of attorneys’ fees awarded.

The Court of Appeal, Second District, Division Seven, held in a published opinion, Laffitte v. Robert Half International (2014) 231 Cal.App.4th 860, that, as a general rule, while the lodestar method is the primary method for calculating attorneys’ fees, the percentage approach may be proper where, as here, there is a common fund. The percentage of fund method survives in California class action cases, and the trial court did not abuse its discretion in using it, in part, to approve the fee request in this case. Contrary to plaintiff’s assertion, the trial court’s use of 33 1/3 percent of the common fund as a benchmark is consistent with, and in the range of, awards in other class actions. The Court of Appeal held it therefore is appropriate for the trial court to cross-check an award of attorneys’ fees calculated by one method against an award calculated by the other method to confirm whether the award is reasonable.

First California Bank v. McDonald, S222858—Review Granted & Held—February 25, 2015.

The court ordered briefing deferred pending decision in Coker v. JP Morgan Chase Bank, N.A., S213137, which presents the following questions: (1) Do the anti-deficiency protections in Code of Civil Procedure section 580(b) apply to a borrower who engages in a “short sale” of real property when the lender approved the sale and re-conveyed its deed of trust to facilitate the sale on the condition that the borrower remain liable for any outstanding balance on the loan following the sale? (2) Does a borrower’s request that the creditor release its security interest in real property to facilitate a short sale result in a waiver of the protection of the “security first” rule set forth in Code of Civil Procedure section 726?

The plaintiff bank filed a judicial foreclosure action to collect a loan secured by two parcels of real estate. After the loan went into default, both parties agreed to a private sale of one of the parcels that was the borrower’s separate property. Plaintiff then filed this action to foreclose on the remaining parcel and obtain a deficiency judgment.

The Court of Appeal, Fifth District, held in a published opinion, First California Bank v. McDonald (2014) 231 Cal.App.4th 550, that to obtain a deficiency judgment, all real property collateral must be exhausted in one single action for judicial foreclosure. If any of the real property collateral is exhausted through any other means, such as a private sale without the consent of the debtors, a deficiency judgment is barred. Because plaintiff failed to follow the requirements of section 726 by disposing of the property outside of judicial foreclosure and without the defendants’ consent or waiver, plaintiff waived any right to a deficiency against defendants.

Review Denied (with dissenting justices)




March 2, 2015

Three opinions, two rehearing possibilities

The Supreme Court issued three new opinions this morning, and two of them are candidates for rehearing.  It is noteworthy that these opinions are the last that recently retired Justice Marvin Baxter will sign (he authored two of them).  Moreover, Justice Baxter’s retirement is a reason why the chances for rehearing are better than normal in two of the cases.  In those two,  Justice Baxter and a pro tem Court of Appeal justice are in the majority of 5-2 decisions, and new Justices Mariano-Florentino Cuéllar and Leondra Kruger, rather than Justice Baxter and a pro tem, will vote on any rehearing petition.  An important caveat:  saying that the chances for rehearing are better than normal is not going too far out on a limb when you remember that “normal” rehearing chances are considerably less than one percent.

In People v. Mosley, a 5-2 court holds that, under Apprendi v. New Jersey (2000) 530 U.S. 466, a judge without a jury can make the required “findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender” even if that order “includes registered sex offender residency restrictions imposed by Proposition 83, the Sexual Predator Punishment and Control Act: Jessica’s Law.”  The majority opinion, authored by Justice Baxter, reverses the Fourth District, Division Three, on that issue.  Justice Goodwin Liu, joined by Justice Kathryn Werdegar, issues a concurring and dissenting opinion asserting that the imposition of the residency restriction “required a determination of facts that historically lay within the jury’s domain” and that the restriction “is a penalty that exceeds what the jury’s verdict in this case permits.”  Justice Liu also criticizes what he calls the majority’s “highly unorthodox” approach of deciding the Apprendi issue even though the Attorney General argued that the residency restriction did not apply to the defendant in this case.  Instead of the more traditional rule of avoiding constitutional issues when it’s possible to do so, the majority, according to Justice Liu, “invents a doctrine of statutory avoidance:  It avoids an issue of statutory interpretation in order to resolve the case on constitutional grounds.”

The other 5-2 decision is in Berkeley Hillside Preservation v. City of Berkeley.  In an opinion by Justice Ming Chin, the court holds that the First District, Division Four, erred in concluding that a project was not exempt from environmental review.  The City of Berkeley had relied on two categorical exemptions established by the Secretary of the Natural Resources Agency, but the Court of Appeal found applicable an exception to those exemptions.  As in Mosley, Justice Liu, joined by Justice Werdegar, writes separately.  His is a concurring opinion — he agrees with the majority that the matter should be remanded, but he disagrees with the court’s interpretation of the exception to the categorical exemptions.  Plaintiffs’ attorney Susan Brandt-Hawley tells us that plaintiffs have already decided to petition for rehearing.

The third opinion is unanimous and, like Mosley, it concerns the Jessica’s Law residency restriction for registered sex offenders.  Justice Baxter’s opinion for the court in In re Taylor affirms the Fourth District, Division One, in holding that the residency restriction is unconstitutional as applied to the petitioners in the case and to those “similarly situated registered sex offenders on parole in San Diego County.”  The court concludes that the restriction fails the deferential “rational relationship” test:  “Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety.”

February 27, 2015

CEQA; sex offender registration, residency-restriction opinions filing Monday

As expected, the Supreme Court will file opinions on Monday in the last three undecided cases from the December calendar.  These will be the last opinions signed by now-retired Justice Marvin Baxter.

In Berkeley Hillside Preservation v. City of Berkeley, the court will decide whether the City of Berkeley properly concluded that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions.

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

In re Taylor asks whether the residency restriction of Penal Code section 3003.5, subdivision (b), when enforced as a mandatory parole condition against registered sex offenders paroled to San Diego County, constitutes an unreasonable statutory parole condition that infringes on their constitutional rights.  (See In re E.J. (2010) 47 Cal.4th 1258, 1282, fn. 10.)

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

February 26, 2015

Supreme Court affirms death judgment, leaves open possible vicarious liability against CHP

The Supreme Court filed two opinions this morning, one a review of a Court of Appeal writ decision and one a decision of an automatic direct appeal of a judgment of death.

In State of California v. Superior Court, the court held that the statutes establishing the Freeway Service Patrol, under which motorists receive free emergency roadside assistance and which is partly administered by the California Highway Patrol, “are incompatible with a special employment relationship between CHP and tow truck drivers.”  The plaintiffs in the case relied on the statutes in an attempt to hold CHP vicariously liable for an FSP tow truck driver’s negligence in an accident.  In rejecting the plaintiffs’ reliance on the statutes, the court agreed with the Court of Appeal, Fourth District, Division Three, but it nonetheless reversed the Court of Appeal’s decision that had directed entry of summary judgment.  The court’s opinion, authored by Justice Carol Corrigan, concluded that, although the FSP statutes do not per se establish vicarious liability against the CHP, there remains “the possibility that CHP might act as a special employer if it takes on responsibilities beyond those outlined in the FSP statutes” when the CHP “make[s] its own agreements with tow service providers.”  Justice Kathryn Werdegar concurred, but disagrees with the majority’s conclusions about “whether the Legislature had in mind potential exposure to vicarious liability under common law employment principles when it established the freeway service patrol program.”

The court affirmed the death judgment in People v. Johnson, but it does so in a 5-2 decision.  The point of disagreement is about the conviction for, and special circumstances finding of, carjacking when the victim was killed during a home invasion robbery.  The majority, in an opinion authored by Justice Ming Chin, affirms, but Justice Werdegar’s dissent — signed by Justice Goodwin Liu — disagrees, concluding that the carjacking statute’s “language and history” don’t support the conviction or finding.  The dissenters state, “The proposition that a person baking in her kitchen can be carjacked should prompt quizzical looks.”  The majority dismisses the objections, holding that, although it “might not be a classic carjacking,” the defendant’s conduct satisfied “all of the statutory elements of carjacking.”  It also found unconvincing the dissenters’ legislative history argument:  “Committee reports, often drafted by unelected staffers, cannot alter a statute’s plain language.”

The Johnson majority included now-retired Justice Marvin Baxter and a pro tem Court of Appeal justice.  New Justices Mariano-Florentino Cuéllar and Leondra Kruger could cause a rehearing if they vote with Justices Werdegar and Liu, but we’re hesitant to issue another rehearing alert on this case.  It is unclear from the opinion whether a reversal of the carjacking conviction and special circumstances finding would necessarily require a reversal of the death judgment.  There are other special circumstances findings that no justice voted to reverse and the majority did not address the defendant’s arguments “concerning the consequences of any insufficiency in the evidence” of carjacking.


February 25, 2015

Vicarious liability, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two opinions.  In State of California v. Superior Court, the court will address whether the California Highway Patrol can be considered the special employer of a tow truck driver participating in the Freeway Service Program.  In People v. Johnson, the court will decide an automatic appeal from a November 2000 judgment of death.

Both cases were argued on the court’s December calendar.  After tomorrow, there will still be three cases left from that calendar without opinions, and only one regular filing day within the 90-day period.  Look for opinions in those three matters — Berkeley Hillside Preservation v. City of Berkeley, People v. Mosley, and In re Taylor — to file this coming Monday morning.

The State of California and Johnson opinions can be viewed tomorrow starting at 10:00 a.m.

February 23, 2015

Requesting the Ninth Circuit to request, not certify

Last week, the Ninth Circuit requested the California Supreme Court’s help on some state law issues.  Actually, the Court of Appeals didn’t request help, but rather certified questions to the Supreme Court.  That’s the problem.  “Certification” is so 12 years ago, as we’ve mentioned before.

California added a rule in 1998 authorizing the Supreme Court to answer questions of California law at the request of the United States Supreme Court, a United States Court of Appeals, or a state, territory, or commonwealth court of last resort.  The rule called for the requesting court to “certify” questions.  The terminology changed in 2003.  Certification was abandoned in favor of simply having a court “request” the Supreme Court to “decide a question of California law.”  That’s still the way the rule reads today.

The Judicial Council’s Appellate Advisory Committee noted the reason for the change.  In its comment to the rule revision, the committee called certification “an unnecessary formalism” and it explained, “The ‘certification’ requirement apparently served the purpose of guaranteeing that the request was authentic.  But the same purpose is served equally well by the more fundamental requirement — imposed by both the former and revised rules — that the request must be presented to the Supreme Court by a formal order of the requesting court. . . .  Such an order is manifestly a sufficient guarantee of authenticity.”

The Ninth Circuit doesn’t always grasp the nuances of the Supreme Court rules.  Will the Ninth Circuit stop certifying questions and just request answers instead?  It’s not too much to ask.

February 21, 2015

Summary of February 18, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 18, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted


Review Denied (with dissenting justices)



In re Walgreens Overtime Cases, S223001—Depublished Court of Appeal Opinion—February 18, 2015

Plaintiff brought a class action against Walgreens alleging that the drugstore chain failed to “ensure” that its employees took their meal breaks. The trial court denied plaintiff’s motion for class certification.  In so ruling, the trial court correctly predicted the Supreme Court’s later holding in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1017, 1034-1041 (Brinker), and held it is sufficient for an employer to make such breaks available to employees.

The trial court denied the motion for class certification for several reasons.  First, plaintiff’s expert’s opinions were based on a legal standard rejected in Brinker. Second, Walgreens’s corporate e-mails contradicted plaintiffs’ assertion that Walgreens employees were forced to miss meal breaks on a class-wide basis.  Third, the court denied the motion because the 44 form declarations of Walgreens employees, which plaintiff’s counsel submitted in support of their class certification motion, were unreliable.  Most of the declarants recanted their declarations in whole or in part during their depositions.  The trial court found the declarations “ ‘appall[ing]’ ” and was “‘especially troubled’” that so many witnesses had recanted.

In a published opinion, In re Walgreens Overtime Cases (2014) 231 Cal.App.4th 237, the Court of Appeal, Second District, Division One, affirmed.  It  held Walgreens’s meal break policy complied with the “make available” standard enunciated in Brinker.  The Court of Appeal also agreed with the trial court’s rejection of plaintiff’s reliance on the expert witness declaration and on Walgreens’s corporate e-mails.

The Court of Appeal upheld the trial court’s rejection of the many form declarations offered by plaintiff’s counsel, noting “[t]he prevalence of falsity in the declarations raised questions about how [plaintiff’s] lawyers had created these declarations in the first place.”  The court described in some detail how plaintiff’s counsel had disregarded Walgreens employees’ answers to their questions, instead sending them declarations that served plaintiff’s counsel’s purposes, and how those employees then signed the declarations without reading them, only to recant when confronted with the declarations in deposition.  The Court of Appeal then observed:

Form declarations present a problem.  When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are.  [¶]  There is nothing attractive about submitting form declarations contrary to the witnesses’ actual testimony.  This practice corrupts the pursuit of truth.  [¶]  It was not error for the trial court to give these unreliable declarations no weight.

(Emphasis added.)

The Supreme Court ordered the opinion depublished.

(Full disclosure:  Last fall, Horvitz & Levy LLP successfully requested publication of the Court of Appeal’s opinion.)