November 18, 2016

Real estate broker opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Horiike v. Coldwell Banker Residential Brokerage, which was argued on the early-September calendar.  [Disclosure:  Horvitz & Levy is lead appellate counsel for Horiike.]

Horiike will answer this question:  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 opinion can be viewed Monday starting at 10:00 a.m.

November 17, 2016

Temporary stay temporarily denied in Prop. 66 challenge case

In the original proceeding filed to challenge Proposition 66, the Supreme Court this afternoon declined to prevent the Secretary of State from certifying the ballot measure’s election results or to stay enforcement of the likely new law, although the denial of the stay is temporary.  The court said that a stay before election results are certified is “unnecessary” and that the challengers can renew their request for a stay of enforcement once the certification occurs.  Election results should be certified by December 16.

The court’s order suggests that the court believes Proposition 66 will not be effective until the Secretary of State certifies its passage (the Constitution provides, however, “An initiative statute . . . approved by a majority of votes thereon takes effect the day after the election”) and that the court will not even decide whether it will hear the challenge until after the certification.

Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused and did not participate in today’s order.

November 16, 2016

Judicial Council members Cantil-Sakauye and Chin recused from Prop. 66 challenge

In the writ proceeding started the day after the election to challenge Proposition 66, the speed-up-the-death-penalty initiative that appears to have been approved by the voters (as of this evening, it is leading by over 270,000 votes), the Supreme Court today entered an order announcing the recusal of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin.

The new law requires action by the Judicial Council, so the petition in Briggs v. Brown names the Council as one of four respondents.  The Chief Justice and Justice Chin are the Council’s Chair and Vice-Chair, respectively.  Today’s order says that they “are disqualified from participating in the matter under Canon 3E(5)(e)(i) of the California Code of Judicial Ethics.”  That provision states that an appellate justice is disqualified if “[t]he justice . . . is a party or an officer, director, or trustee of a party to the proceeding.”

Supreme Court justices usually do not explain their reasons for recusing or not recusing themselves.  We probably could have figured out the reason in this case, but it’s nice not to have to speculate.

The recusals won’t necessarily require the immediate appointment of any Court of Appeal justices to serve temporarily on the Supreme Court.  At this initial stage, when the court is deciding whether to hear the writ petition on its merits, section IV.J. of the court’s Internal Operating Practices and Procedures provides for pro tem appointments only when “four justices cannot agree on a disposition.”  If the court does take the case, then two Court of Appeal justices will take the Chief’s and Justice Chin’s places.

 

November 14, 2016

HMO’s have tort duties to third parties for emergency care payment

In Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., the Supreme Court today holds that, although health maintenance organizations can delegate their responsibility to pay for their members’ emergency medical treatment, they might still be on the hook financially if the delegation was or is negligently made to an entity that cannot make the payment.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes this is an appropriate case to impose an “exceptional” common law tort duty to third parties.  Among other things, the court states, “Forcing others to provide professional services for the benefit of one’s own customers, without any reasonable prospect of payment, is morally blameworthy.”

The court affirms the Second District, Division Three, Court of Appeal.  It disapproves a 2003 decision by the Fourth District, Division One, and a 2001 opinion by the Fourth District, Division Two.

November 11, 2016

Our new artwork mirrors the Supreme Court’s, recognizes our appellate districts

The top of this blog has long featured part of the mural The Eastern Sierra in Fall, by noted Marin County artist Willard Dixon.  The mural is prominent behind the Supreme Court’s bench in its San Francisco courtroom.

When we recently moved our office to Burbank and built a moot court room, we were looking for horvitz-levy-1appropriate artwork.  Luckily, we were able to purchase from Mr. Dixon the original nearly ten-foot long study that he painted as his model for the Supreme Court mural.  It is now hanging in our moot courtroom, behind the bench for the “justices.”  Above the Law (the other ATL blog) wrote about the painting today.

We have other appellate-related artwork throughout the office as well.  There are paintings and photographs that represent each Court of Appeal location — San Francisco, Los Angeles, Ventura, Sacramento, San Diego, Riverside, Santa Ana, Fresno, and San Jose.

November 10, 2016

Summary of November 9, 2016 conference report for civil cases

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

Review Granted

Hayward v. Superior Court, S237174 — Review Granted — November 9, 2016

The case includes the following issues:  (1) Does a party waive disqualification of a temporary judge when counsel is aware of a potential conflict and proceeds with the temporary judge presiding?  (See People v. Johnson (2015) 60 Cal.4th 966.)  (2) May an appellate court set aside a settlement agreement on the ground that a disqualified judge’s rulings “tainted” the settlement as a matter of law when factual questions exist concerning the extent to which those rulings influenced a party’s decision to settle?

In a long 2-1 published opinion, Hayward v. Superior Court (2016) 2 Cal.App.5th 10, the Court of Appeal, First District, Division Two, held:  (1) the rulings and orders issued by an attorney acting as a temporary judge are all void and must be vacated; (2) a settlement agreement signed by the parties prior to disqualification of the temporary judge was tainted by the disqualifying conduct of the temporary judge and therefore cannot be enforced and; (3) the temporary judge’s verbal disclosure to a party of the disqualifying relationship does not waive the disqualification; waiver had to recite the basis for the disqualification and be signed by the parties and their attorneys; and (4) the conduct of the disqualified temporary judge did not taint the proceedings before the superior court judge who replaced her.

Ace American Ins. Co. v. Fireman’s Fund Ins. Co., S237175 — Review Granted — November 9, 2016

The case presents this issue:  When a primary insurer unreasonably refuses to settle an underlying action against its insured within policy limits and the underlying action later settles for the full amount of the primary policy as well as the full amount of an excess insurer’s policy, can the excess insurer maintain an equitable subrogation action against the primary insurer to recover the amount it expended in settlement?

In a published opinion, Ace American Insurance Company v. Fireman’s Fund Insurance Company (2016) 2 Cal.App.5th 159, the Court of Appeal, Second District, Division Four, held that because the excess insurer alleged it was required to contribute to the settlement of the underlying case due to the primary insurer’s failure to reasonably settle the case within policy limits, the lack of an excess judgment against the insured in the underlying case did not bar an action for equitable subrogation and breach of the duty of good faith and fair dealing.

Review Denied (with dissenting justices)

None.

Depublished

None.

 

November 10, 2016

Prop. 66 challenged in Supreme Court [Updated x2]

Proposition 66, the speed-up-the-death-penalty initiative (see, most recently, here), is currently on track for approval, leading by about 150,000 votes and 1.8 percentage points.  Yesterday, the day after the election, two opponents of the initiative — former California Attorney General John Van de Kamp and former death penalty supporter Ron Briggspetitioned the Supreme Court to invalidate the law.

The petition argues Proposition 66 improperly interferes with the habeas corpus jurisdiction of California’s courts, it violates the separation of powers doctrine, and it violates the state constitution’s single-subject rule.  The petitioners ask the Supreme Court to stay certification and enforcement of the proposition until there is a determination whether the new law can stand.  Sacramento’s District Attorney calls the petition “frivolous.”

Just a guess, but, because it’s not yet certain that Proposition 66 has passed, and because the Secretary of State has until December 16 to certify the election results, the Supreme Court might stay enforcement of the law and put the case on hold until the final vote is certified next month.  If the proposition does officially pass, look for the court to issue an order to show cause, meaning the court will decide the writ petition on its merits after full briefing and an oral argument.

[November 16 update:  Judicial Council members Cantil-Sakauye and Chin recused from Prop. 66 challenge.]

[November 17 update:  Temporary stay temporarily denied in Prop. 66 challenge case.]

November 10, 2016

Prop. 47 resentencing petition doesn’t change plea bargain

In Harris v. Superior Court, the Supreme Court today holds that a defendant who petitions for resentencing under Proposition 47, after having been sentenced under a plea bargain before the proposition became law, does not risk having the plea bargain undone.  The court’s unanimous opinion, written by Justice Ming Chin, states that “[t]he resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the petitioner.”

The court reverses a 2-1 judgment by the Second District, Division Five, Court of Appeal.

November 10, 2016

HMO payment opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., which was argued on the early-September calendar.

The case raises these issues:  (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?

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

November 9, 2016

Prop. 47 opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Harris v. Superior Court, which was argued on the October calendar.  The case raises these issues:  (1) Are the People entitled to withdraw from a plea agreement for conviction of a lesser offense and to reinstate any dismissed counts if the defendant files a petition for recall of sentence and reduction of the conviction to a misdemeanor under Proposition 47?  (2) If the defendant seeks such relief, are the parties returned to the status quo with no limits on the sentence that can be imposed on the ground that the defendant has repudiated the plea agreement by doing so?

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

November 7, 2016

Supreme Court makes AG involuntary two-time loser as it holds a petitioner can paper a judge soon after filing a habeas corpus petition

In Maas v. Superior Court, the Supreme Court today holds that a habeas corpus petitioner “who requests the name of the judge assigned to examine his or her habeas corpus petition is entitled to notice of that assignment, and also is entitled to peremptorily challenge the assigned judge, so long as all of the procedural requirements of [Code of Civil Procedure] section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in the petitioner’s underlying criminal action.”  The court’s unanimous opinion is written by Chief Justice Tani Cantil-Sakauye.

Because the Supreme Court had taken the unusual step of granting review on its own motion, we were hoping the opinion might disclose what had attracted the court’s attention.  The opinion doesn’t do that, however.  And the mystery behind the own-motion review is compounded by the fact that the court affirms the Court of Appeal (Fourth District, Division One), and it also approves of another Court of Appeal opinion (a 1980 opinion from groundhog-daythe First District, Division Three).  No prior decisions are reversed, disapproved, or overruled.

You’ve got to have a little sympathy for the Attorney General in this case.  She lost in the Court of Appeal in a published opinion and, even though she decided not to challenge the decision in the Supreme Court, the court took the case anyway, dragging the Attorney General in to hand her a loss once again.  Years ago, I lost a case in both the Court of Appeal and the Supreme Court, but at least I asked for it by petitioning for review.  In this case, it would have been appropriate for the court to not file the opinion until February 2.

November 4, 2016

No conference held the week of October 31, 2016

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

November 4, 2016

Habeas corpus judge papering opinion filing Monday; first opinion in seven weeks

Monday morning, the Supreme Court will file its opinion in Maas v. Superior Court, which was argued on the early-September calendar.

Maas raises a procedural issue:  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?  But, the case’s route to the Supreme Court is of procedural interest itself; uncommonly, review was granted on the court’s own motion.

Maas will be the first Supreme Court opinion in seven weeks.  That drought is normal for this time of year.

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

November 1, 2016

Two Chiefs appearing at California Supreme Court Historical Society book event

Chief Justice Tani Cantil-Sakauye and former Chief Justice Ronald George will be participating in a panelCSCHS-2016-Newsletter-Spring-Summer_Page_01 discussion in two weeks at an event to celebrate a new book on the history of the California Supreme Court.  The book was recently published by the California Supreme Court Historical Society [disclosure:  I serve on the Society’s board], which previewed the book in its latest newsletter.

The event will also honor former Chief Justice Malcolm Lucas, who died in September.  The full court will remember Lucas before the start of its December calendar.

You can register for the Society’s November 15 event in San Francisco here.

October 31, 2016

The last death penalty appeal, or just another one before a flood, or business as usual.

Tomorrow morning, the Supreme Court will hear argument in People v. Winbush, an automatic appeal from a July 2003 death penalty judgment.  It could be an historic proceeding; not because of the argument itself, but because of its timing.  Winbush will be the last death penalty argument the court will hear before the election next week at which voters will weigh in on two competing death penalty initiatives, either one of which could have a dramatic effect on the Supreme Court’s docket.

Proposition 62 would end the death penalty in California, convert all existing death sentences to life without parole, and give the Supreme Court the discretion to transfer all pending death penalty appeals and habeas corpus petitions to the Court of Appeal or superior court.  It would open up a lot of space on the high court’s docket, removing a substantial number of cases which the court now must hear (the death penalty appeals) or at least work up (the habeas petitions), cases which almost always take the most court resources to decide.

Proposition 66, on the other hand, would inundate the Supreme Court with death penalty appeals and habeas petitions, likely leaving the court with time for little else.  Among other provisions, the initiative would require that, once the prescribed new system is in place, “the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases” within five years of entry of judgment.

Four years ago, when another death penalty abolition initiative was on the ballot, we identified a different case as the potential last death penalty appeal.  The initiative lost by about four percentage points, however.

The court has scheduled two death penalty appeals for its post-election December calendar.  If Proposition 62 takes effect, the court could transfer those appeals (and Winbush and the undecided automatic appeals from the early-September and the October calendars, for that matter) to the Court of Appeal.  It’s quite possible, however, that, because those cases are mostly worked up already, the court will decide the appeals without reaching any penalty phase issues, issues which would be mooted by the death penalty’s demise.  But if Proposition 66 prevails, and survives constitutional challenge, Winbush and the two December cases would likely be among the last before a flood of death penalty direct appeals and habeas petitions inundates the court.  If neither initiative passes, things will continue as before, just like four years ago.

Related post:  California Academy of Appellate Lawyers opposes Prop. 66.

October 28, 2016

Summary of October 26, 2016 conference report for civil cases

In its conference on Wednesday, October 26, 2016, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

October 27, 2016

December calendar will have nine cases, tribute to Chief Justice Lucas

The Supreme Court announced its December calendar today.  There will be nine oral arguments, but first there will be a tribute to former Chief Justice Malcolm Lucas, who died last month.

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

People v. Superior Court (Morales):  Did the superior court have jurisdiction to order various entities to preserve materials that might at a later date be included in a motion for post-conviction discovery under Penal Code section 1054.9?  This is the case in which a Court of Appeal justice suggested at the oral argument that the Supreme Court should “clean[ ] up their own mess” on the issue.

People v. Sivongxxay:  This is an automatic appeal from an April 1999 judgment of death.  The court’s website does not list issues for such appeals.  However, the court early last year asked for supplemental briefing on this question:  If the trial court fails to obtain a capital defendant’s separate waiver of his right to a jury determination of the special circumstance allegation, does that failure compel automatic reversal of the special circumstance finding?  (See Ring v. Arizona (2002) 536 U.S. 584; Neder v. United States (1999) 527 U.S. 1; People v. Sandoval (2007) 41 Cal.4th 825.)  Argument in the case was continued from the November calendar.

People v. Delgado:  This is an automatic appeal from a June 2000 judgment of death.  The court’s website does not list issues for such appeals.

City of San Jose v. Superior Court:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?  Like Sivongxxay, the argument in this case was continued from the November calendar.

Central Coast Forest Association v. California Fish and Game Commission:  The court limited review to this issue — Under the California Endangered Species Act, Fish and Game Code section 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error?  If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration?  This case has been on the court’s docket for quite some time; review was granted in February 2013.

J.M. v. Huntington Beach Union High School District:  Must a claimant under the Government Claims Act file a petition for relief from Government Code section 945.4’s claim requirement, as set forth in Government Code section 946.6, if he has submitted a timely application for leave to present a late claim under Government Code section 911.6, subdivision (b)(2), and was a minor at all relevant times?

McGill v. Citibank, N.A.:  Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration?  Argument in this case was continued from the October calendar.
[Justice Carol Corrigan is recused.  Fourth District, Division One, Court of Appeal Justice Judith Haller will be sitting pro tem.]
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.:  (1) In the context of competitive bidding on a public works contract, may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with California’s prevailing wage law after the contract was awarded?  (2) To state a cause of action for intentional interference with prospective economic advantage, must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendant’s interference, or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder?

People v. Hall:  (1) Are probation conditions prohibiting defendant from:  (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague?  (2) Is an explicit knowledge requirement constitutionally mandated?

October 25, 2016

Summary of October 19, 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, October 19, 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

In Re Ana C., S237208 – Review Granted and Held – October 19, 2016

The Supreme Court ordered briefing deferred in this juvenile wardship proceeding pending decision in People v. Hall, S227193, which presents the following issues: (1) Are probation conditions prohibiting defendant from: (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague? (2) Is an explicit knowledge requirement constitutionally mandated?

In a published decision, In re Ana C. (2012) 204 Cal.App.4th 1317, the Court of Appeal, Second District, Division Eight, held: (1) the defendant’s cohabitant’s daughter was competent to testify about sexual abuse; (2) evidence that the defendant sexually abused the cohabitant’s daughter supported dependency jurisdiction over the children that lived with the defendant; and (3) evidence that defendant sexually abused the cohabitant’s daughter did not support dependency jurisdiction over an adult daughter that did not live with the defendant.

Certified Question of State Law Accepted

Liberty Surplus Insurance v. Ledesma & Meyer Construction, S236765 – Request to Answer a Question of State Law Granted – October 19, 2016

The Supreme Court granted the Ninth Circuit’s request under California Rules of Court, rule 8.548, to answer the following certified question of state law:

“Whether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.”

Review Denied (with dissenting justices)

None.

Depublished

None.

October 19, 2016

Supreme Court agrees to answer Ninth Circuit’s insurance question

The Supreme Court today agreed to answer the Ninth Circuit’s question in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc.

The Ninth Circuit’s question is “[w]hether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.”  The case arises from claims of sexual abuse of a middle school student.

October 14, 2016

Summary of October 12, 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, October 12, 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

Montrose Chemical Corporation of California v. Superior Court (Canadian Universal Insurance Company) – S236148- Review Granted and Transferred- October 12, 2016

This is a writ proceeding about which little information is available online.  It might have arisen from longstanding litigation to determine whether several insurers are obligated to defend and indemnify their insured in three groups of environmental contamination lawsuits involving DDT.  (See Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287; Montrose Chemical Corp. v. Superior Court (1994) 25 Cal.App.4th 902.)  The Court of Appeal, Second District, Division Three, summarily denied petitioner Montrose Chemical Corporation’s petition for writ of mandate.  The Supreme Court granted review and transferred the matter to the Court of Appeal “with directions to vacate its order denying mandate and to issue an order directing respondent Superior Court of Los Angeles County to show cause why the relief sought in the petition should not be granted.”

Certified Questions of State Law – Questions Restated

Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, S236177- Certified Questions of State Law Modified – October 12, 2016

As we noted last month, the United States Court of Appeals for the Second Circuit asked the Supreme Court to decide questions of California law. The court ordered briefing deferred pending a determination whether to restate the questions presented.

In its conference on October 12, the Court ordered the questions presented restated as follows:

(1) When two primary liability insurers agree that their policies cover the same loss, may the primary insurer whose policy contains an “other insurance” clause (stating that its insurance is excess over any “other insurance or . . . self-insurance plan that covers a loss on the same basis”) enforce that clause in an action for equitable contribution brought by the primary insurer who defended and settled the insured’s claim and whose policy does not contain an other-insurance clause?

(2) In the same equitable contribution action described in Issue 1, when the amount paid by the primary insurer that settled the claim exceeds the non-settling primary insurer’s liability policy limits, what is the effect, if any, of the non-settling insurer’s “limits reduction” clause (stating that “[a]ll payments made under any local policy issued to [the insured] by us or any other insurance company will reduce the Limits of Insurance of this policy”)?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 11, 2016

SCOTUS denies cert of Supreme Court’s tax compact decision

At the end of last year, the Supreme Court unanimously held in Gillette Company v. Franchise Tax Board that the California Legislature validly precluded multistate businesses from using an apportionment election option under the Multistate Tax Compact, which California had earlier adopted.  At least one commentator didn’t like the opinion.  Neither did Gillette, which asked the U.S. Supreme Court to hear the case.  Today, the high court denied certiorari.

October 7, 2016

No conference held the week of October 3, 2016

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

October 6, 2016

November calendar in Sacramento has eight cases [UPDATED]

The Supreme Court today announced its November calendar.  Arguments will be in Sacramento.

On November 1 and 2, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Corpening: Did Penal Code section 654 bar the imposition of sentence for both robbery and carjacking when the two crimes were accomplished by a single act?

People v. Sivongxxay:  This is an automatic appeal from an April 1999 judgment of death.  The court’s website does not list issues for such appeals.  However, the court early last year asked for supplemental briefing on this question:  If the trial court fails to obtain a capital defendant’s separate waiver of his right to a jury determination of the special circumstance allegation, does that failure compel automatic reversal of the special circumstance finding?  (See Ring v. Arizona (2002) 536 U.S. 584; Neder v. United States (1999) 527 U.S. 1; People v. Sandoval (2007) 41 Cal.4th 825.)

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.  Argument in the case was continued from the September calendar.

Association of California Insurance Companies v. Jones:  (1) Does the Unfair Insurance Practices Act (Ins. Code, § 790, et seq.) give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement, and therefore an unfair trade practice, for purposes of the act?  (2) Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions (a)-(e) of section 2695.183 of title 10 of the California Code of Regulations is a “misleading” statement with respect to the business of insurance? (Cal. Code of Regs., tit. 10, § 2695.183, subd. (j).)  Argument in the case was continued from the October calendar, which concluded today.

City of San Jose v. Superior Court:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?

Barry v. State Bar of California:  If the trial court grants a special motion to strike under Code of Civil Procedure section 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by section 425.16, subdivision (c)?  This is a case in which the court granted relief to file a late petition for review.

Kabran v. Sharp Memorial Hospital:  Are the time constraints in California Code of Civil Procedure section 659a jurisdictional such that a court cannot consider late-filed documents?

People v. White:  Was defendant properly convicted of both rape of an intoxicated person and rape of an unconscious person for a single act of sexual intercourse?

[October 27 update:  The November calendar is down to six cases after the court continued to the December calendar arguments in the Sivongxxay and City of San Jose cases.]

October 3, 2016

Major national appellate summit to be held in Philadelphia next month

The Appellate Judges Education Institute (AJEI) is holding its thirteenth annual nationwide appellate Summit at the Loews Philadelphia Hotel in Philadelphia, Pennsylvania, on November 10 through 13, 2016. The summit is co-sponsored by the Appellate Judges Conference of the ABA and its constituent organizations, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys.  This year’s summit has already garnered much advance interest, including from nationally known appellate blogger Howard Bashman.

This year, as in previous years, the four day gathering will offer attendees some of the best appellate practice-oriented CLE available anywhere. The Summit will include a conversation with Supreme Court Justice Elena Kagan, as well as programs on such topics such as appellate writing, judicial decision making, the impact of changing technology on appellate practice, and canons of construction. In addition, attendees can look forward to Dean Erwin Chemerinsky’s engaging review of the U.S. Supreme Court’s recent decisions and programs on a host of other subjects of great interest to appellate lawyers, judges, and staff attorneys. Check out the Summit’s program for a complete overview of the available appellate CLE opportunities and registration information.

In addition to excellent speakers and programs, there will be numerous social events, including an opening night cocktail reception at the National Constitution Center and off-site tours of America’s first capital, as well as breakfasts, lunches, cocktail mixers, a Summit dinner, and dine-arounds. These events will provide plentiful opportunities to meet appellate judges and lawyers from around the country. In past years, approximately 100 appellate judges, 100 appellate attorneys, and 75 appellate staff attorneys have attended the Summit. (Full disclosure: Horvitz & Levy partner Brad Pauley is Immediate Past Chair of the ABA’s Council of Appellate Lawyers.)

October 3, 2016

Governor Brown, SCOTUS blunt the effect of Justice Liu’s juvenile Miranda dissent, for now

When the Supreme Court denied review of a Court of Appeal opinion that held a 10-year-old had knowingly waived his Miranda rights, Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger dissented.  Also, Justice Liu wrote a dissenting statement, which Justice Cuéllar signed.

Justice Liu’s dissent was unusual, and not just because it was the first such separate statement regarding a denial of review in over 50 years.  The statement included an express suggestion that the Legislature take action regarding juvenile Miranda issues, and it seemed written in part as a brief to encourage the U.S. Supreme Court to grant certiorari in the case — In re Joseph H.

The Legislature responded positively to the dissent, passing a bill to require additional protections for juveniles prior to custodial interrogations.  Last week, however, Governor Jerry Brown vetoed the legislation.  But the veto was not a repudiation of Justice Liu’s dissent.  Rather, in his veto message, the governor said that, although he was “not prepared to put into law [the bill’s] categorical requirement that juveniles consult an attorney before waiving their Miranda rights,” the bill “presents profoundly important questions” and he vowed to “work with proponents, law enforcement and other interested parties to fashion reforms that protect public safety and constitutional rights.”

The dissent was not as effective at the U.S. Supreme Court level, at least not in this particular case.  That court today denied certiorari in Joseph H.

September 30, 2016

No conference held the week of September 26, 2016

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

September 30, 2016

Supreme Court seeks amicus comments on State Bar funding request

As noted, after the Legislature adjourned without passing a State Bar dues bill, the Supreme Court directed the Bar to submit a request for an interim Special Regulatory Assessment to fund the Bar’s discipline system.  The request was filed today.  Also today, the court invited amicus curiae letters from “[a]ny person or entity wishing to comment on the State Bar’s Request.”

September 29, 2016

Former Chief Justice Malcolm Lucas dies

The Supreme Court announced that Malcolm Lucas — the 26th Chief Justice of California — died yesterday.  He was 89.lucas

After serving as a superior court and federal district court judge, Lucas was appointed to the Supreme Court in 1984 by Governor George Deukmejian.  Deukmejian elevated Lucas to chief justice in 1987, after the voters removed Chief Justice Rose Bird and two associate justices from the court.  Lucas retired from the court in 1996.

Lucas was praised by both his successors.  Chief Justice Tani Cantil-Sakauye called him “a man of great dignity and grace” who “came to the court during a time of upheaval in the judicial branch and he brought stability, peace, and leadership to the court.”  Former Chief Justice Ronald George said that Lucas “brought a steady hand to the stewardship of the California Supreme Court and our state’s vast judicial system” and that Lucas’s “wise counsel and collegial approach to the resolution of legal and administrative issues set an excellent example for me and for other judges, and helped pave the way for many of the ensuing reforms in California’s judiciary.”

Lucas had a dry sense of humor, which he occasionally displayed on the bench.  During argument in a case concerning the validity of a city ordinance prohibiting fortune telling, he told the attorney challenging the ordinance that the attorney’s client must already know how the case was going to come out and asked that the information be shared with the court.  At the outset of an argument in another case, a dispute between psychiatrists and psychologists over the scope of their respective authorities in the hospital setting, Lucas wished everyone “good morning,” and then said, “I’m sure there are many in the audience who are wondering, ‘what did he mean by that?'”

September 28, 2016

September oral argument videos available

The Supreme Court has added to its temporary archive videos of the oral arguments on the September calendar.

The court holds a special end-of-September calendar in San Diego tomorrow.

September 26, 2016

Summary of September 21, 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, September 21, 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

Hassell v. Bird, S235968 – Review Granted- September 21, 2016

This case presents the following issues: (1) Does an on-line publisher (Yelp) have a right to notice and an opportunity to be heard before a trial court orders removal of on-line content? (2) Does the statutory immunity provided by 47 U.S.C. section 230(c)(1) and (e)(3) bar a trial court from enjoining a website publisher’s actions and potentially enforcing the court’s order by way of contempt or other sanctions?

In a published decision, Hassell v. Bird (2016) 247 Cal.App.4th 1336, the Court of Appeal, First District, Division Four, held: (1) the on-line publisher was ‘aggrieved’ by the removal order and therefore had standing to challenge the validity of the removal order, having brought a nonstatutory motion to vacate that order; (2) the online publisher’s due process rights were not violated because of its lack of prior notice and a hearing on the removal order request; (3) the removal order did not violate the publisher’s First Amendment rights to the extent that it requires removal of the defendant’s defamatory reviews; (4) to the extent the removal order purports to apply statements other than the defendant’s defamatory reviews, it is an overbroad unconstitutional prior restraint on speech; and (5) the online publisher’s immunity from suit under the Communications Decency Act of 1996 (the CDA), 47 United States Code section 230, does not extend to the removal order.

Rand Resources v. City of Carson, S235735 – Review Granted- September 21, 2016

This case presents the following issues:  (1) Did plaintiffs’ causes of action alleging the breach of, and interference with, an exclusive agency agreement to negotiate the designation and development of a National Football League (NFL) stadium and related claims arise out of a public issue or an issue of public interest within the meaning of Code of Civil Procedure section 425.16? (2) Did plaintiffs’ causes of action arise out of communications made in connection with an issue under consideration by a legislative body?

The Court of Appeal, Second District, Division One, held in a published decision, Rand Resources v. City of Carson (2016) 247 Cal.App.4th 1080, that “(1) city’s alleged deception about its dealings with competitor was not protected speech or petitioning activity; (2) mayor’s allegedly false denial that he knew the competitor was not protected free speech or petitioning activity; and (3) developer’s alleged attempt to usurp developer’s rights under agency agreement did not arise from protected activity under anti-SLAPP statute.”

Vasilenko v. Grace Family Church, S235412 – Review Granted- September 21, 2016

This case presents the following issue: Does one who owns, possesses, or controls premises abutting a public street have a duty to an invitee to provide safe passage across that public street if that entity directs its invitees to park in its overflow parking lot across the street?

The Court of Appeal, Third District, held in a published decision, Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146, that the church owed a duty of care to the church visitor.  It held summary judgment was improper because there were genuine issues of material fact as to: (1) whether the church’s act in directing visitors to park in the overflow lot across street was a legal cause of visitor’s injuries; and (2) whether the church failed to reasonably train and educate a parking lot attendant.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 19, 2016

Summary of September 14, 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, September 14, 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

United Educators of San Francisco AFT/CFT v. California Unemployment Insurance Appeals Board, S235903 – Review Granted – September 14, 2016

This case presents questions concerning the entitlement of substitute teachers and other on-call paraprofessional employees to unemployment insurance benefits when they are not called to work during a summer school term or session.

The Court of Appeal, First District, Division One, held in a published decision, United Educators of San Francisco AFT/CFT v. California Unemployment Insurance Appeals Board (2016) 247 Cal.App.4th 1235, that public school employees with reasonable assurance of reemployment for the following fall term are not eligible to receive unemployment insurance during the intervening summer term.

Certified Question of State Law Accepted

Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, S236177- Request to Answer State Law Question Granted – September 14, 2016

The United States Court of Appeals for the Second Circuit asked the Supreme Court to decide questions of California law. The court ordered briefing deferred pending a determination whether to restate the questions presented.

The issues as stated by the Second Circuit are: “1. 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 [footnote omitted], 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 covers a loss on the same basis,’ [footnote omitted] is company A entitled under California law to equitable contribution from company B? [Footnotes omitted.] [¶] 2. 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?”

Review Denied (with dissenting justices)

None.

Depublished

None.

September 19, 2016

Supreme Court decision could lead to less environmental impact reports

In Friends of the College of San Mateo Gardens v. San Mateo County Community College District, the Supreme Court today gives more latitude to public agencies in determining whether project changes require a new environmental impact report (EIR) (after an EIR was prepared for the original project) or a first EIR (when no previous EIR was prepared because a negative declaration was adopted for the original project).  The Court of Appeal had concluded that changes to a project were a new project and an EIR was thus necessary.  In a unanimous opinion by Justice Leondra Kruger, the Supreme Court holds that the need for an EIR is not based “on any abstract characterization of the project as ‘new’ or ‘old,'” but, rather, on a determination of “whether the previous environmental document retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts.”

The court reverses the First District, Division One, Court of Appeal.  It also disapproves (although not expressly) of a 2006 decision by the Third District Court of Appeal, and agrees with a 2007 decision by the Second District, Division Two.

September 16, 2016

Environmental impact report opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, which was argued on the early-May calendar.  If the case was argued over four months ago and there’s a 90-day limit for issuing opinions, why hasn’t there been a decision yet?  It’s because, a week after argument, the court vacated submission and asked for supplemental briefing.  A new 90-day period started when the supplemental briefing was completed at the end of June.

The Friends case isn’t even the last early-May case to be decided.  That honor goes to People v. Macabeo, in which the court is dealing with the aftermath of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision about warrantless cell phone searches.  The court asked for post-argument supplemental briefing in Macabeo, too, but, unlike in Friends, the court waited until almost the 90th day after argument to order more briefing.  Supplemental briefing was completed — and the 90-day clock restarted — just last week, so a decision is not due until early December.

This is the time of year when there’s usually a drought in Supreme Court opinions, because no cases are argued in July or August.  That drought is occasionally broken by a trickle of opinions in cases, like Friends and Macabeo, when submission is vacated for supplemental briefing.

The Friends case raises this question:  When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Not only did the court direct the parties to file supplemental briefs, it also requested a supplemental brief from the California Natural Resources Agency, with the Governor’s Office of Planning and Research.  The additional briefs were to address:  (1) Under California Environmental Quality Act (CEQA) Guidelines section 15162, what standard of judicial review applies to an agency’s determination that no environmental impact report (EIR) is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration?  (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1482.)  (2) Does CEQA Guidelines section 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute?  (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-1074 with Benton at pp. 1479-1480.)

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

September 14, 2016

Supreme Court will answer Second Circuit insurance questions . . . in some form

The Supreme Court today agreed to answer questions of California insurance law posed by the Second Circuit Court of Appeals.  However, it’s not clear yet what exactly those questions will be.  In Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, the Supreme Court granted the federal appellate court’s request, but deferred briefing “pending the court’s determination whether to restate the question of California law to be decided.”

When the court last took a similar action, it was more than six months before the court restated the question.

 

 

 

September 14, 2016

Assistant Clerk Jorge Navarrete will become new Supreme Court Clerk

Chief Justice Tani Cantil-Sakauye today announced the appointment of Jorge Navarrete as the new (and 27th) Supreme Court Clerk/Administrator.  jorge_e_navarrete_dd610f2c-3141-40de-a4c7-154f873340c9-prvNavarrete is currently the court’s Assistant Clerk/Administrator and has served the court for 20 years.  The announcement notes that Navarrete — a native of Guadalajara, Mexico — is the first Latino to hold the Clerk/Administrator position.

Navarrete will replace Frank McGuire, who is retiring at the end of this month.  McGuire said he is “thrilled that the court has selected Jorge.”  Similarly, McGuire’s predecessor, Frederick “Fritz” K. Ohlrich, praised Navarrete as “smart, energetic, [and] dependable,” and said he is “confident [Navarrete] will serve the Supreme Court, the appellate courts and practitioners, and the public very well.”

September 9, 2016

Chief Justice directs State Bar to submit funding request

One of the Supreme Court’s many non-case-related jobs is to regulate the legal profession.  The Legislature recently adjourned without authorizing the State Bar to collect dues for 2017.  Chief Justice Tani Cantil-Sakauye was involved in the legislative negotiations, as she has been in the past.  Because the Legislature did not pass a dues bill, the Chief Justice yesterday sent a letter — on behalf of the Supreme Court — to the State Bar directing the Bar “to submit a request to the court for an interim Special Regulatory Assessment to fund the Bar’s discipline system until such time as legislation is enacted that provides for its funding.”  The letter states that, “in the absence of annual dues legislation, the Supreme Court has the inherent power as well as the responsibility to impose an interim regulatory fee upon attorneys for the purpose of supporting an adequate, functioning attorney discipline system that protects clients and the public.”

Cheryl Miller reports in The Recorder [subscription] that the letter “preempts a state bar meeting Monday where trustees were scheduled to discuss a dues-order petition to the high court.”

The Chief Justice’s letter also voices the court’s support for “certain public protection and governance reforms” that were included in the bills the Legislature did not pass and that “required no enabling legislation.”  It additionally states that the court “strongly encourages Bar leadership to adopt other good government and public protection reforms.”

September 9, 2016

October calendar will have eight arguments [Updated]

The Supreme Court has announced its October calendar, arguments we at first thought wouldn’t take place.

On October 5 and 6, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Association of California Insurance Companies v. Jones:  (1) Does the Unfair Insurance Practices Act (Ins. Code, § 790, et seq.) give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement, and therefore an unfair trade practice, for purposes of the act?  (2) Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions (a)-(e) of section 2695.183 of title 10 of the California Code of Regulations is a “misleading” statement with respect to the business of insurance? (Cal. Code of Regs., tit. 10, § 2695.183, subd. (j).)

People v. Financial Casualty & Surety, Inc.:  (1) Should the good cause standard under Penal Code section 1305.4 for extension of the period to exonerate bail require a demonstration of a reasonable likelihood of success of returning a fugitive?  (2) When a court finds there has been a diligent investigation to locate a fugitive, does the burden shift under Penal Code section 1305.4 to the People to prove that there is not a reasonable likelihood of success of returning the fugitive?  (3) Does an extension of the period to exonerate bail under Penal Code section 1305.4 commence on the date on which the initial 180-day period expires or on the date on which the trial court grants the extension?

Raceway Ford Cases:  (1) Does the inclusion of inapplicable smog check and smog certification fees in an automobile purchase contract violate the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.)?  (2) Does backdating a second or subsequent finance agreement to the date of the first finance agreement for purchase of a vehicle violate the Act?

Harris v. Superior Court:  (1) Are the People entitled to withdraw from a plea agreement for conviction of a lesser offense and to reinstate any dismissed counts if the defendant files a petition for recall of sentence and reduction of the conviction to a misdemeanor under Proposition 47?  (2) If the defendant seeks such relief, are the parties returned to the status quo with no limits on the sentence that can be imposed on the ground that the defendant has repudiated the plea agreement by doing so?

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

People v. Landry:  This is an automatic appeal from a September 2001 (9/11, to be exact) judgment of death.  The court’s website does not list issues for such appeals.

County of Los Angeles Board of Supervisors v. Superior Court:  Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted?
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

McGill v. Citibank, N.A.:  Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration?
[Justice Carol Corrigan is recused.  Fourth District, Division One, Court of Appeal Justice Judith Haller will be sitting pro tem.]
[Disclosure:  Horvitz & Levy filed an amicus brief in this case, too, on behalf of the Association of Southern California Defense Counsel.]

[September 16 update:  There have been a few changes in the calendar.  Two cases have been continued, Association of California Insurance Companies to November and McGill to December.  One case has been added.  On October 5, the court will hear argument in People v. Mickel, an automatic appeal from an April 2005 judgment of death.]

September 8, 2016

Unanimous Supreme Court reverses another death penalty

The Supreme Court today affirms the conviction and the special circumstance findings, but reverses the death sentence, in People v. Covarrubias.  In an opinion by Chief Justice Tani Cantil-Sakauye, the court concludes that a prospective juror — a correctional officer — was improperly excused based solely on his responses to a questionnaire asking about his personal views on capital punishment, which he said should be abolished.  According to the court, the prospective juror’s questionnaire answers “were ambiguous, failed to provide an adequate basis to support his excusal for cause, and called for the trial court to conduct oral voir dire.”  The court says that, under U.S. Supreme Court precedent, the error required automatic reversal of the death penalty.

Concerning a trial court’s obligation to sua sponte instruct on a claim-of-right defense, the court disapproves a 2006 decision by the Sixth District Court of Appeal and agrees with a 2014 Third District opinion.

In the most recent 10 death penalty appeals, all decided in the last 10 weeks, and including today’s opinion, the court has reversed 6 death sentences.  (Besides today’s case, see here, here, here, here, and here.)  Except for the 4-3 decision in People v. Grimes, all 10 decisions have been unanimous regarding the death penalty.

[This post has been updated.]

September 6, 2016

“Thirty Years After a Hundred Year Flood: Judicial Elections and the Administration of Justice”

A late-September calendar will not be the only thing Supreme Court related at the State Bar’s annual meeting in San Diego.  On Sunday, October 2, the California Supreme Court Historical Society and the Witkin Legal Institute will present a program about judicial elections, near the 30th anniversary of one of the most significant events in the court’s history:  the election at which three justices lost their seats.  It was an election that the then-new Chief Justice compared to a 100-year flood, hence the program title.

The program panel will include two of the justices who lost in 1986 — Joseph Grodin and Cruz Reynoso.  Joining them will be Dean Erwin Chemerinsky of the UC Irvine School of Law.

The State Bar summarizes the event:

This program covers the California Constitution’s system for electing justices and judges, and how the elections can influence the administration of justice.  Topics include an examination of the 1986 election at which three California Supreme Court justices were removed from the bench.  The program will also involve discussion of campaign and campaign finance limitations on judicial candidates.

Disclosure:  I’m on the Historical Society’s board and am organizing the program.  But I can still say that it should be an enlightening and important program.

September 2, 2016

Summary of August 24 and 31, 2016 conference reports 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 conferences on August 24 and 31, 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

Lopez v. Sony Electronics, S235357 – Review Granted- August 24, 2016

This case presents the following issue: Does the six-year limitations period in Code of Civil Procedure section 340.4, which governs actions based on birth and pre-birth injuries and is not subject to tolling for minority, or the two-year limitations period in Code of Civil Procedure section 340.8, which applies to actions for injury based upon exposure to a toxic substance and is subject to tolling for minority, govern an action alleging pre-birth injuries due to exposure to a toxic substance?

The Court of Appeal, Second District, Division Eight, held in a published decision, Lopez v. Sony Electronics (2016) 247 Cal.App.4th 444, that a personal injury action based on prenatal exposure to toxic substances is governed by the statute providing that there is no tolling of the limitations period for birth and pre-birth injuries during the plaintiff’s minority.

Certified Question of State Law Accepted

Heller Ehrman LLP v. Davis Wright Tremaine LLP, S236208 – Request to Answer State Law Question Granted– August 31, 2016

The Supreme Court agreed to the Ninth Circuit’s request to answer this certified question: Under California law, what interest, if any, does a dissolved law firm have 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 federal district court’s opinion provides helpful background.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 2, 2016

“California Supreme Court’s term: Following the lead”

Professor Clark Kelso reports in the new California Bar Journal:  “Some of the most interesting decisions during the California Supreme Court’s 2015-16 term were ones where the court essentially followed the lead set by other lawmaking entities, even when that lead may have taken the court in a direction that it otherwise would not have gone by itself.”

August 31, 2016

Supreme Court agrees to answer Ninth Circuit’s law firm finance question

The Supreme Court today granted the Ninth Circuit’s request to answer a question of state law relevant to federal proceedings concerning the dissolution of the Heller Ehrman law firm.  The court grants Ninth Circuit requests more often than not.

In the case — titled, Heller Ehrman LLP v. Davis Wright Tremaine LLP in the Supreme Court — the court has restated the question this way:  “Under California law, what interest, if any, does a dissolved law firm have 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 court acted quickly on this request, issuing today’s order just 34 days after docketing the Ninth Circuit’s request.  Sometimes, it takes considerably longer.

August 31, 2016

Justice Liu dissenting statement an influence on juvenile Miranda legislation

The Legislature yesterday passed a bill to revise the procedure for custodial interrogations of minors.  SB 1052, if signed by the governor, would require a non-waivable consultation by a minor with legal counsel before a custodial interrogation and before the waiver of any Miranda rights.  There is an exception for obtaining information an officer believes is “necessary to protect life or property from a substantial threat.”

The legislation was inspired, at least in part, by Justice Goodwin Liu’s dissenting statement (concurred in by Justice Mariano-Florentino Cuéllar) from the denial of review last year in In re Joseph H., the high-profile case of a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights.  In an analysis of the proposed legislation (see Senate Public Safety Committee report here), the bill’s author — Senator Ricardo Lara — quoted from Justice Liu’s statement.

In his statement, Justice Liu said the Joseph H. case raised “an important legal issue” and suggested that the “Legislature may wish to take up this issue in light of this court’s decision not to do so here.”  The Legislature has now done so.

The Joseph H. separate statement was the first from the denial of review in over 50 years.  It has happened in three more cases since then, including two last week.

Justice Liu’s separate statement influenced the Legislature.  It might also influence the U.S. Supreme Court; a certiorari petition in Joseph H. is pending there, with a ruling possible in less than a month.

August 29, 2016

Chief Justice is the swing vote in two 4-3 decisions today

Just a month ago, when the Supreme Court issued a 4-3 decision in an arbitration case, we noted how unusual such a split vote was.  In the last week, however, there have been three more 4-3 decisions, including two today.

Chief Justice Tani Cantil-Sakauye is the only member of the court in the majority on both of today’s cases, writing the court’s opinion in Bristol-Myers Squibb Company v. Superior Court and concurring in Department of Finance v. Commission on State Mandates.  For today at least, she is the California Supreme Court equivalent of fellow Sacramentan Justice Anthony Kennedy.

But last week, the Chief Justice dissented when a 4-3 court overturned the death penalty in People v. Grimes.

Interestingly, in the four 4-3 decisions over the last month, no two majorities have had the same four justices.  In the arbitration case — Sandquist v. Lebo Automotive, Inc. — the majority consisted of the Chief Justice and Justices Werdegar, Liu, and Cuéllar.  In Grimes, it was Justices Werdegar, Liu, Cuéllar, and Kruger.  In Bristol-Myers, it was the Chief Justice and Justices Liu, Cuéllar, and Kruger.  And in Department of Finance, the majority was the Chief Justice and Justices Werdegar, Chin, and Corrigan.

 

August 29, 2016

Divided court finds jurisdiction over out-of-state pharmaceutical manufacturer

In Bristol-Myers Squibb Company v. Superior Court, the Supreme Court today holds that hundreds of non-California plaintiffs can sue a pharmaceutical manufacturer in a California court for injuries allegedly caused by one of the defendant company’s drugs, even though the company is neither incorporated nor headquartered in the state.  [Disclosure:  Horvitz & Levy is co-counsel for defendant Bristol-Myers.]  The majority opinion by Chief Justice Tani Cantil-Sakauye (joined by Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger) concludes that, “[a]lthough [the defendant’s] business contacts in California are insufficient to invoke general jurisdiction, which permits the exercise of jurisdiction over a defendant regardless of the subject of the litigation, . . . the company’s California activities are sufficiently related to the nonresident plaintiffs’ suits to support the invocation of specific jurisdiction, under which personal jurisdiction is limited to specific litigation related to the defendant’s state contacts.”  The court relies on the defendant company’s “extensive contacts with California, encompassing extensive marketing and distribution of Plavix [the alleged injury-causing drug], hundreds of millions of dollars of revenue from Plavix sales, a relationship with a California distributor, substantial research and development facilities, and hundreds of California employees.”

Justice Kathryn Werdegar dissents, for herself and Justices Ming Chin and Carol Corrigan.  She finds “no evidence of contacts with California that bear a substantial connection to the claims of the[ ] nonresident[ ]” plaintiffs.  The dissent claims that “the majority’s decision threatens to subject companies to the jurisdiction of California courts to an extent unpredictable from their business activities in California, extending jurisdiction over claims of liability well beyond our state’s legitimate regulatory interest.”

The court affirms the First District, Division Two, Court of Appeal.

August 29, 2016

Divided court finds water quality mandates are reimbursable

In Department of Finance v. Commission on State Mandates, the Supreme Court today holds conditions imposed by the state on local agencies that operate storm drain systems are state mandates for which — under the California Constitution — the state must reimburse the agencies, even though the conditions were imposed to comply with the federal Clean Water Act.  The majority opinion by Justice Carol Corrigan (joined by Chief Justice Tani Cantil-Sakauye and Justices Kathryn Werdegar and Ming Chin) concludes the conditions resulted from state discretionary action because “no federal law or regulation imposed the conditions nor did the federal regulatory system require the state to impose them.”

Justice Mariano-Florentino Cuéllar (with Justices Goodwin Liu and Leondra Kruger) writes a concurring and dissenting opinion.  The separate opinion faults the majority for upholding the decision of the Commission on State Mandates, which, the dissenters say, “is flawed in its approach and far too parsimonious in its analysis.”

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

August 27, 2016

There will be an October calendar after all

When the Supreme Court announced a rare second September calendar — a special session in San Diego coinciding with the first day of the State Bar’s annual meeting — it looked like that oral argument session would take the place of the usual October calendar.  But now we’ve learned from the court that there will be arguments on October 5 in San Francisco.  The court has also revised its online 2016 calendar to show that there will be oral arguments during the first week of October.

August 26, 2016

Supreme Court Clerk Frank McGuire is retiring

Chief Justice Tani G. Cantil-Sakauye announced today that Frank McGuire is retiring as Court Administrator and Clerk of the Supreme Court of California, effective at the end of next month.  McGuire has been in that position for over four years, and has served in the California court system for 25 years.  (See also here.)

The court’s news release reports that “[t]he court is currently considering its succession plans for the position of Court Administrator and Clerk of the Supreme Court and anticipates announcing those plans in mid-September.”

August 26, 2016

Jurisdiction, reimbursable mandate opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in Bristol-Myers Squibb Company v. Superior Court and Department of Finance v. Commission on State Mandates, which were both argued on the June calendar.

Bristol-Myers is expected to address these questions:  (1) Did the plaintiffs in this action who are not residents of California establish specific jurisdiction over their claims against the nonresident pharmaceutical drug manufacturer?  (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 571 U.S. __ [134 S.Ct. 746, 187 L.Ed.2d 624]?  [Disclosure:  Horvitz & Levy is co-counsel for Bristol-Myers.]

The Department of Finance case raises the issue whether the requirements in the National Pollutant Discharge Elimination System (NPDES) permits issued to real parties in interest by the regional water quality control board state are mandates subject to reimbursement under article XIII B, section 6, subdivision (b), of the state Constitution.

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

August 25, 2016

Supreme Court announces second September calendar — in San Diego.

May is usually the only month during which the Supreme Court has two separate oral argument sessions.  This year, however, the court will be hearing arguments at the beginning and, it announced today, also at the end of next month.  But, this isn’t like May, where the second calendar is an extra one for the court.  The late September calendar is replacing the normal October calendar; atypically, there will be no arguments in October.  Also atypically, all the cases to be argued are civil matters.

The unusual timing of this calendar is likely because the court is taking its show on the road — away from san_diegoits San Francisco, Los Angeles, and Sacramento courtrooms — which it does occasionally.  (See, e.g., here, here, and here.)  This time, the justices will be sitting at the Fourth District, Division One, Court of Appeal in San Diego.  The timing of what the court is calling a “historic special session” coincides with the beginning of the State Bar’s annual meeting in the same city.

On September 29, the court will hear the following cases (with the issue presented as stated on the court’s website):

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 brief in the case.]

Orange Citizens for Parks and Recreation v. Superior Court:  Is the proposed development project of low density housing at issue in this case consistent with the city’s general plan?

In re Transient Occupancy Tax Cases:  When a customer books a hotel room through an online travel company, should the occupancy tax levied on the rent charged by the hotel be calculated based on the retail rate paid by the customer to obtain the right to use the room or on the wholesale amount that the hotel receives from the online travel company after that company has deducted its markup and fees?

People v. Miami Nation Enterprises:  Is a payday loan company owned by a federally recognized Indian tribe entitled to tribal sovereign immunity, and thus exempt from state regulation, if the day-to-day management of the business is handled by a third party management company that is not affiliated with the tribe and pays the tribe a small percentage of the gross revenues?