October 17, 2014

Summary of October 15, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, October 15, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

People v. Superior Court (Cahuenga’s The Spot), S220677—Review Granted and Transferred—October 15, 2014

This case presents the following two issues: (1) Are civil penalties like damages that must be “proved” by a plaintiff in order to obtain summary adjudication on public nuisance and unfair competition causes of action? (2) Must civil penalties be “proved” in order for summary judgment to be granted to the plaintiff, or may they be determined post-summary judgment at the time the attorneys’ fees and costs are determined?

In an attempt to control the proliferation of medical marijuana shops, the City of Los Angeles filed suit against such establishments and the property owners renting to them. The City alleged causes of action for public nuisance, unfair competition, and violations of the Narcotics Abatement Law, and ultimately moved for summary judgment or in the alternative summary adjudication of the issues. The trial court ruled that the motions were deficient because the City had not presented evidence of the amount of civil penalties for any cause of action and thus had failed to prove every element of its case.

The Court of Appeal, Second District, Division Five, summarily denied the City’s petition for a writ of mandate. The court’s order stated, “Petitioner failed to document the amount of civil penalties owed under any of its causes of action. Further, petitioner has likewise failed to document the amount of civil penalties and its summary adjudication motion did not dispose of an entire cause of action, as required by Code of Civil Procedure, section 437c, subdivision (f)(1). (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422-423.)”

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 the Superior Court to show cause why the relief sought in the petition should not be granted.

Review Denied (with dissenting justices)

Children’s Hospital Central California v. Blue Cross of California, S220019—Review Denied [Chin, J. voting for review]—October 15, 2014

This case presented the following questions: (1) whether California Code of Regulations, title 28, section 1300.71, subdivision (a)(3)(B), provides the exclusive standard for valuing the reasonable value of post-stabilization emergency medical services provided by hospitals to Medi–Cal beneficiaries enrolled in Blue Cross’s Medi–Cal managed care plan; and (2) whether the trial court erred by instructing the jury to determine reasonable value of such services by considering only those factors.

The Court of Appeal, Fifth Appellate District, held in a published opinion, Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, that: (1) in enacting section 1300.71, subdivision (a)(3)(B), the Department of Managed Health Care (DMHC) established the minimum rather than exclusive criteria for reimbursement of a claim, noting that the DMHC intended that reasonable value be based on the concept of quantum meruit and that valuation disputes be resolved by the courts; and (2) the trial court erred in instructing the jury that it was to decide the services’ “reasonable and customary value” based only on the six factors enumerated in section 1300.71, subdivision (a)(3)(B), because evidence of fees the hospital charged and accepted for comparable services was relevant to determining the “reasonable and customary” value of the services.

Sutter Health v. Superior Court (Atkins), S220887—Review Denied [Werdegar, J., voting for review]—October 15, 2014

The petition for review presented the following two issues: (1) Is Civil Code section 56.101 violated when a health care provider negligently loses possession of its patients’ sensitive medical information, by negligently failing to take adequate precautions to prevent their loss or theft? (2) If a violation of Civil Code section 56.101 has occurred, is a patient whose sensitive medical records have been lost or stolen without any remedy under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, § 56 et seq.), unless the patient can allege and prove that an unauthorized party has viewed the medical records?

A thief stole a health care provider’s computer containing medical records of about four million patients. The plaintiffs filed an action under the CMIA, which protects the confidentiality of patients’ medical information and provides for an award of $1,000 in nominal damages to a patient if the health care provider negligently releases medical information or records in violation of the Act. The health care provider demurred to the complaint and moved to strike the class allegations. The trial court overruled the demurrer and denied the motion to strike.

The Court of Appeal, Third District, issued an alternative writ of mandate to review the trial court’s rulings and in a published opinion, Sutter Health v. Superior Court (2014) 227 Cal.App.4th 1546, concluded that the plaintiffs failed to state a cause of action under the CMIA because they did not allege that the stolen medical information was actually viewed by an unauthorized person. The court then granted the health care provider’s petition for a writ of mandate and directed the trial court to sustain the health care provider’s demurrer without leave to amend and dismiss the action.

California High-Speed Rail Authority v. Superior Court (TOS), S220926—Review Denied [Baxter, J., voting for review]—October 15, 2014

This case presented the following issue, among others: Under Proposition 1A—the Safe, Reliable High-Speed Passenger Train Bond Act—may the Legislature appropriate bond proceeds based on a preliminary funding plan submitted by the California High-Speed Rail Authority despite alleged deficiencies in the plan?

In November 2008, the voters of California passed Prop 1A “to initiate the construction of a high-speed train system” in California. It authorizes the issuance and sale of $9.95 billion in general obligation bonds “upon appropriation by the Legislature” to begin construction of the system, and it creates a finance committee to authorize the issuance and sale of the bonds. The California High-Speed Rail Authority is the administrative body primarily responsible for overseeing the planning and construction of the system. The Act requires the Authority to prepare a preliminary funding plan before the Legislature appropriates the funds and a final funding plan before the proceeds of bonds are committed for expenditure.

Plaintiffs filed suit alleging that the Authority’s preliminary funding plan violated the Act. They sought relief in the form of a writ of mandamus/prohibition. The trial court found that the preliminary funding plan was deficient but remained uncertain whether to issue a writ of mandate to compel the Authority to rescind it.

In a published opinion, California High-Speed Rail Authority v. Superior Court (2014) 228 Cal.App.4th 676, the Court of Appeal, Third District, concluded that, contrary to the trial court’s determination, the finance committee properly found that issuance of the bonds was necessary or desirable. It also concluded that—because the Legislature appropriated bond proceeds after receiving the preliminary funding plan—the plan, despite any deficiencies, served its stated purpose of guiding the Legislature on the Authority’s appropriation request. The court therefore refused to issue a writ of mandamus to rescind and redo the preliminary funding plan.



This post was updated on October 24, 2014.


October 17, 2014

“Courting Corruption: The Auctioning of the Judicial System”

Norm Ornstein writes in The Atlantic about the post-Citizens United world of judicial elections.  Judicial elections, he says, “are no way to select impartial and high-quality jurists.  But judicial elections in the age of Citizens United make it so much worse.  This will ultimately undermine the whole idea of an independent judiciary, which is the single most significant bedrock of a functioning democratic political system.”  There will be no “100-year flood” in California this year, but it might not be long until our luck runs out again.

October 17, 2014

Single act/multiple convictions opinion filing Monday; first opinion since August

On Monday morning, the Supreme Court will file its opinion in People v. Gonzalez, which raises the issue whether the defendant was properly convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person.  (See People v. Craig (1941) 17 Cal.2d 453.)  Gonzalez was argued in September.

If it feels like you haven’t seen a Supreme Court opinion in a while, you’re not imagining things.  Because the lack of oral arguments in July and August causes empty-pipeline syndrome, Gonzalez will be the first opinion filed in over seven weeks.

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


October 13, 2014

How to — and how not to — dump a case after the Supreme Court has agreed to answer a Ninth Circuit question [UPDATED]

A high-percentage way to get a case into the California Supreme Court is to have the Ninth Circuit make the ask for you. More often than not the Supreme Court will agree to help out the federal appeals court when the latter tribunal needs an answer to a state law question.  But what happens when the case settles after the Supreme Court has agreed to answer, but before it has answered, the question?  Again, you need the Ninth Circuit to do the asking.

In Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., the Supreme Court agreed to answer the Ninth Circuit’s question about the applicability of California’s Disabled Persons Act to websites.  The case settled (after the opening brief on the merits was filed) and one or both of the parties filed in the Supreme Court a motion to dismiss the appeal.  Wrong court.  The Supreme Court denied the motion, stating that “[t]he appeal is pending not in this court, but in the United States Court of Appeals for the Ninth Circuit” and noting that “the Ninth Circuit has not vacated its order . . . certifying a question to this court . . . or otherwise requested that this court not proceed in this matter.”

So, the appellant then moved in the Ninth Circuit to dismiss the appeal.  Last week, the Ninth Circuit granted that motion and withdrew its “request for certification.”  That should do it . . . even though the Ninth Circuit used the outdated “certification” nomenclature.  Under rule 8.548, the Ninth Circuit now “request[s]” the Supreme Court to “decide a question of California law.”

Expect the Supreme Court to soon get this case off its docket, maybe even at this Wednesday’s conference.  Not that it matters a lot, but it will be interesting to see how the court phrases its order.  Rule 8.548 doesn’t provide for a situation like this and I don’t remember this happening before.  When the court dumps a state court case after granting review, it can “dismiss review.”  But “dismissing” the grant of a request to decide a question of California law sounds awkward.  I vote for “vacating” the order that granted the request to decide a question of California law.

[October 24 Update:  The Supreme Court on October 22 vacated its order granting the Ninth Circuit's request to decide a question of California law.  "Vacated" instead of "dismissed" -- good call!]

October 13, 2014

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

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

October 8, 2014

Sacramento Bee endorses Supreme Court candidates

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

October 7, 2014

No conference held the week of October 6, 2014

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

October 6, 2014

Six cases on the November calendar in Sacramento [UPDATED]

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

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

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

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

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

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

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

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

[October 10 update:

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

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

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

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

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

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

October 1, 2014

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

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

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

September 26, 2014

Governor signs bill overturning Supreme Court decision

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


September 26, 2014

Summary of September 24, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, September 24, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

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

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

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

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

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

Review Denied (with dissenting justices)




September 21, 2014

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

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

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

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

September 19, 2014

Justice Chin to speak in Newport Beach on Monday

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

September 19, 2014

Summary of September 17, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, September 17, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

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

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

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

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

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

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

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

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

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

Review Denied (with dissenting justices)




September 18, 2014

California Lawyer article assesses the Court’s recent performance

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

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

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

September 16, 2014

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

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

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

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

September 15, 2014

Major national appellate summit to be held in Dallas this November

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

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

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

September 15, 2014

Summary of September 10, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, September 10, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

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

This case presents the following issue: Must a plaintiff have paid or be liable to pay a property tax to a government entity in order to bring a taxpayer waste action against that entity under Code of Civil Procedure section 526a (section 526a), or can the payment of other taxes confer standing?

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

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

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

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

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

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

Review Denied (with dissenting justices)

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

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

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

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

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

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

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

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



September 9, 2014

October’s calendar is five sixths criminal

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

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

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

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

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

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

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

People v. Smith:  Was defendant properly convicted of murder under the natural and probable consequences theory of aiding and abetting?  Four months ago, the court asked for supplemental briefing with this order:  The trial court’s instructions to the jury included the following sentence:  “If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.”  (RT 8283; see CALCRIM No. 402.)  The parties are requested to brief the following questions:  (1) Does this sentence correctly state the law?  (2) If so, is there evidence in the record to support a jury finding that the murders in this case were not committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery?  (Sixth District Court of Appeal Justice Patricia Bamattre-Manoukian is the pro tem.)

September 8, 2014

“Petitioning to Right a Historic Wrong”

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

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