August 15, 2015

Another petition for review comes up one vote short

The Supreme Court on Wednesday denied review in People v. Piper, a three-strikes resentencing case, but three justices recorded votes to grant.  As has been noted before, three is not enough.  Because of the case’s subject matter, which has been and continues to be the subject of numerous Supreme Court cases, and because the Court of Appeal’s opinion was not published, it’s possible that the votes for review were only to make the case a grant-and-hold, but we’ll never know.

The three votes for review were recorded by the court’s three newest justices — Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger.  For those waiting for those three to vote as a bloc, this is the case.  We believe this is the first time these justices have voted together without any others joining them, including opinions and record votes on petitions for review.

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August 14, 2015

Summary of August 12, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, August 12, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. This week, the Court has granted the Ninth Circuit’s request to answer a certified question of state law.

Review Granted

Gradillas v. Lincoln General Insurance Company, S227632—Request for Certification Granted—August 12, 2015

At the request of the Ninth Circuit, the Supreme Court agreed to decide a question of California law. The Supreme Court rephrased the issue as follows: “For purposes of coverage under an automobile insurance policy, what is the proper test for determining whether an injury arises out of the ‘use’ of a vehicle?”

A passenger who was sexually assaulted by the driver on a party bus obtained a stipulated judgment against the bus owner, who assigned to the passenger his rights against his insurance carrier. The passenger sued the insurer, alleging that the insurer breached its duty to defend and indemnify its insured. In a published decision, Gradillas v. Lincoln Gen. Ins. Co., __ F.3d __, No. 13-15638, 2015 WL 4068840 (9th Cir. July 6, 2015), a Ninth Circuit panel asked the California Supreme Court to answer this question of state law: “When determining whether an injury arises out of the ‘use’ of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company’s duty to defend, is the appropriate test whether the vehicle was a ‘predominating cause/substantial factor’ or whether there was a ‘minimal causal connection’ between the vehicle and the injury?”

Hamilton v. Yates, S226450—Review Granted—August 12, 2015

The Court of Appeal affirmed the dismissal of an action due to the plaintiff/appellant’s failure to appear for trial. This case presents the following issues: (1) Did the trial court err in concluding that there was no means of affording the indigent prisoner plaintiff in this case access to the courts to pursue his civil action? (2) Did the trial court err by dismissing the action for the plaintiff’s failure to appear in such circumstances?

Petitioner, a California inmate serving a life term at San Quentin, filed a civil lawsuit against several defendants alleging excessive force and violation of his rights while incarcerated at Pleasant Valley State Prison. Code of Civil Procedure section 581, subdivision (b)(5), permits a court to dismiss an action when a party fails to appear for trial and the other party requests dismissal. In an unpublished opinion, Hamilton v. Yates, Case No. F069608,the Fifth District Court of Appeal held the trial court did not abuse its discretion in dismissing the appellant’s case, where the appellant failed to personally appear for trial due to his imprisonment and also failed to provide the court with a reasonable option for conducting the jury trial of his action.

City of Petaluma v. Superior Court (Waters), S227539—Review Granted and Transferred—August 12, 2015

In this writ proceeding initiated by a municipality, the Supreme Court granted review and transferred this matter to the Court of Appeal, First District, Division Three, with directions to vacate its order denying mandate and to issue an order directing the trial court to show cause why relief sought should not be granted. The Supreme Court also dissolved its temporary stay of the trial court’s Memorandum of Decision on Plaintiff’s Motion to Compel Further Responses to Discovery without prejudice to the petitioner requesting a stay in the Court of Appeal or the Superior Court.

Review Denied (with dissenting justices)

None.

Depublished

None.

August 14, 2015

Two jury trial waiver opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two criminal cases argued on the late-May calendar that raise similar issues.

In People v. Blackburn, the issue is whether the trial court prejudicially erred by failing to advise defendant of his right to jury trial and obtain a personal waiver of that right.  People v. Tran raises the question, did the trial court prejudicially err by failing to advise defendant of his right to jury trial and obtain a personal waiver of that right, and does the Court of Appeal have authority to declare a rule of procedure for the trial courts?

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

August 13, 2015

Responding to Ninth Circuit requests: the long and the short of it

Yesterday, the Supreme Court agreed to interpret an insurance policy for the Ninth Circuit.  The Supreme Court docketed the federal court’s request for help in Gradillas v. Lincoln General Insurance Company only 36 days ago.  That’s fast.  The Supreme Court hasn’t ruled on a Ninth Circuit request that quickly since January 2013.

If the response in Gradillas was unusually fast, the wait in Davis v. Devanlay Retail Group, Inc. has been uncommonly long.  The Davis request went on the Supreme Court’s docket 99 days ago, two months before Gradillas.  That might be an unprecedented amount of time.  Over the last five years, the longest previous wait between docketing a request and the Supreme Court’s decision whether to take the case was 70 days.

By the way, in Gradillas, the Supreme Court rephrased the state law question it will answer this way:  “For purposes of coverage under an automobile insurance policy, what is the proper test for determining whether an injury arises out of the ‘use’ of a vehicle?”

August 13, 2015

Supreme Court affirms death penalty, rejecting “judicial election” argument

Rejecting a challenge to their impartiality based on California’s judicial elections system, the Supreme Court today affirms multiple convictions and the death penalty against an Orange County gang member.  Also, acting on the Attorney General’s concession, the court strikes five gang enhancements that were added to convictions of gang participation.

Justice Goodwin Liu writes the opinion in People v. Nguyen for the entire court except Justice Mariano-Florentino Cuéllar, who writes a concurring and dissenting opinion.  (Justice Cuéllar has written two opinions for the court, but this is his first separate opinion.)  The dissent is a limited one, disagreeing with the court’s affirmance of a conviction for aiding and abetting an attempted murder.

Among many other issues, the court rejects the defendant’s argument that he could not get a fair trial or appellate review because the superior court judge and the Supreme Court justices are all subject to judicial elections.  The opinion summarizes the argument:  “judges who are subject to election cannot be impartial because they might be removed from office if they rule in favor of a capital defendant.”  For a judge, elections might be like a crocodile in his or her bathtub, and the voters’ removal of Supreme Court justices might become more common than a hundred-year flood, but the court finds they do not present the “extreme facts” necessary to cast doubt on judicial impartiality.

August 13, 2015

Justice Kruger’s first opinion lowers plaintiffs’ burden in dangerous property condition cases

Today’s unanimous Supreme Court opinion in Cordova v. City of Los Angeles is the first one authored by Justice Leondra Kruger, who joined the court in January.  The court makes it easier for plaintiffs to sue public entities for dangerous property conditions when injuries are caused in part by a third person’s negligence.

In Cordova, a negligent driver of one car caused another car to crash into a tree on the median of a city street.  The plaintiffs — the parents of three people killed in the car that crashed — sued the city, alleging the tree’s placement was too close to the street, but the superior court granted summary judgment because the placement did not cause the negligent driving of the first car.  The Court of Appeal, Second District, Division One, affirmed, but the Supreme Court reverses.  The court holds that the plaintiffs “must show that a dangerous condition of property — that is, a condition that creates a substantial risk of injury to the public — proximately caused the fatal injuries their decedents suffered,” but they need not prove “that the allegedly dangerous condition also caused the third party conduct that precipitated the accident.”

The court approves of the reasoning of a 2010 Third District Court of Appeal decision and a 2012 Sixth District decision.

August 12, 2015

Dangerous condition, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in two cases argued on the late-May calendar.

Cordova v. City of Los Angeles raises the issue whether a government entity can be held liable if a dangerous condition of public property existed and caused the injuries plaintiffs suffered in an accident, but did not cause the third party conduct that led to the accident?

People v. Nguyen is an automatic appeal from a January 1999 judgment of death.  A few days after argument, the court asked for supplemental briefing with this order:  “In light of the Attorney General’s concession at oral argument, the parties are directed to serve and file supplemental briefs addressing the following question:  May a gang enhancement under section 186.22, subdivision (b)(1), be applied to a conviction for active participation in a street gang under section 186.22, subdivision (a)?  (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1137-1138; People v. Albillar (2010) 51 Cal.4th 47, 60-62; People v. Briceno (2004) 34 Cal.4th 451, 465; Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828-832; People v. Arroyas (2002) 96 Cal.App.4th 1439, 1445-1448.)”  Despite the post-argument briefing, the court did not vacate submission of the case so as to give itself a fresh 90-day period to file the opinion.

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

August 11, 2015

Insurer can sue Cumis counsel for excessive fees

Finding that lawyers who charge an insurance company excessive fees for defending an insured of the company “have been unjustly enriched at the insurer’s expense,” the Supreme Court yesterday held that the insurer in the case before it can directly sue the lawyers.  In an opinion written by Justice Mariano-Florentino Cuéllar, the court in J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company reversed the Court of Appeal, First District, Division Three, which had concluded that the right to reimbursement ran only against the insureds.  [Disclosure:  Horvitz & Levy represents the insurer.]

Justice Goodwin Liu wrote a concurring opinion stating that “the trial court on remand should apply a presumption that [the attorney] fees were incurred primarily for the insured’s benefit” and that the insurer “should have to demonstrate that counsel misled the insured in the representation, acted without the insured’s express or implied authorization, contravened the insured’s instructions, or otherwise acted in a manner with little or no benefit to the insured.”

August 7, 2015

Insurance reimbursement opinion filing Monday; lots more coming soon

On Monday morning, the Supreme Court will file its opinion in J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company, which was argued on the late-May calendar.  The case raises this issue:  After an insured has secured a judgment requiring an insurer to provide independent counsel to the insured (see San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162 Cal.App.3d 358), can the insurer seek reimbursement of defense fees and costs it considers unreasonable and unnecessary by pursuing a reimbursement action against independent counsel or can the insurer seek reimbursement only from its insured?

[Disclosure:  Horvitz & Levy represents Hartford.]

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

After the J.R. Marketing opinion, we can expect an increase in the amount of filings for the rest of the month.  To issue opinions on time, which the court always does, the court will file 11 opinions by August 31 and 8 of those by August 24.  This is the annual emptying of the pipeline.

 

 

August 6, 2015

Red lights mean stop for Fourth Amendment purposes, Supreme Court holds

A person sitting in a parked car generally would not feel free to leave when an officer pulls up behind in a patrol car and activates emergency lights.  Thus, for Fourth Amendment purposes, the person is detained at that point.  So holds the Supreme Court today in a unanimous opinion authored by Justice Carol Corrigan in People v. Brown.  The defendant in the case was detained, but his conviction is affirmed because the detention was supported by reasonable suspicion supplied by a 911 call, although the court finds that to be “a close question.”

The Supreme Court affirms the judgment of the the Court of Appeal, Fourth District, Division One.  However, the Court of Appeal’s decision on the main issue does not fare well — that court had concluded there was no detention by “merely activating emergency lights on a police vehicle.”  The Supreme Court approves of a 1985 divided Sixth District Court of Appeal opinion, with which the Court of Appeal in today’s case had disagreed.

August 5, 2015

Fourth Amendment opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Brown, which was argued on the late-May calendar.  The case raises these issues:  (1) Was defendant detained when a deputy sheriff stopped his patrol car immediately behind defendant’s parked vehicle and activated the patrol car’s emergency lights?  (2) In the alternative, did the deputy have reasonable suspicion to detain defendant?

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

 

August 5, 2015

Today is conference-less Wednesday

The Supreme Court holds a conference most Wednesdays.  However, there is at least one week each month when the court doesn’t conference.  Today is that day for August.

August 3, 2015

Supreme Court weighs in on unconscionability defense to arbitration agreements

The Supreme Court today issued its long-awaited opinion in Sanchez v. Valencia Holding Co..  (An earlier post announcing the forthcoming filing used imprecise language suggesting the filing was coming after the 90-day filing period.  In fact, the court filed its opinion on the 90th day after argument.)

The court interprets the US Supreme Court’s interpretation of the Federal Arbitration Act in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, and discusses how that decision affects California’s unconscionability defense to arbitration agreements.  In a 6-1 majority opinion by Justice Goodwin Liu, the court holds that Concepcion requires the enforcement of a contract provision barring class action litigation or arbitration “but does not limit the unconscionability rules applicable to other provisions of the arbitration agreement.”  The court also concludes that the Court of Appeal, Second District, Division One, incorrectly found the arbitration agreement in the case to be unconscionable.  Concerning one aspect of the unconscionability rule, the court approves of a 2003 opinion by the Court of Appeal, First District, Division Five.

Justice Ming Chin writes an extended concurring and dissenting opinion.  He agrees with the majority’s bottom line, but he disagrees with the reasoning, including what he calls the “broad dictum” about Concepcion not limiting California’s unconscionability rules as applied to arbitration agreements.

[Disclosure:  Horvitz & Levy filed an amicus curiae brief supporting the defendant.]

 

 

August 3, 2015

Supreme Court rules on off-site environmental mitigation

In a unanimous opinion written by Justice Kathryn Werdegar, the Supreme Court in City of San Diego v. Board of Trustees of the California State University today holds that Cal. State University could not avoid paying to mitigate off-campus effects of a San Diego State University expansion plan solely based on the Legislature’s express failure to make a specific appropriation for the mitigation.  [Disclosure:  Horvitz & Levy represents Cal. State.]  The Supreme Court affirms the Court of Appeal, Fourth District, Division One.

August 2, 2015

Summary of July 29, 2015 conference report for civil cases

The following is a summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, July 29, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

American Civil Liberties Union Foundation of Southern California v. Superior Court, S227106—Review Granted—July 29, 2015

Petition for review after the Court of Appeal denied a petition for writ of mandate.  This case presents the following issue:  Does information collected by police using “automated license plate readers” — high-speed cameras that automatically scan and record the license plate numbers and time, date and location of every passing vehicle without suspicion of criminal activity — constitute law enforcement “records of . . . investigations” that are permanently exempt from disclosure under the Public Records Act in accordance with Government Code section 6254, subdivision (f)?

The Court of Appeal, Second District, Division Three, held in a published decision, American Civil Liberties Union Foundation of Southern California v. Superior Court (2015) 236 Cal.App.4th 673, that the Los Angeles Sheriff’s and Police Departments had the right to refuse a request under the Public Records Act for disclosure of a single week’s worth of data produced by Automatic License Plate Reader (ALPR) technology because the data is considered “records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation [of law] and its agency.” (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1071.)

DisputeSuite.com v. Scoreinc.com, S226652—Review Granted—July 29, 2015

Petition for review after the Court of Appeal affirmed an order denying an award of attorney fees in a civil action.  This case presents the following issue:  Were defendants entitled to an award of attorney fees under Civil Code section 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause?

The Court of Appeal, Second District, Division Two, held in a published opinion, DisputeSuite.com, LLC v. Scoreinc.com (2015) 235 Cal.App.4th 1261, that, where a defendant obtains an interim procedural victory that results only in a relocation of an active contract dispute from one forum to another, there has been no final resolution of the contract claims and therefore it would be premature to make a prevailing party determination.  Accordingly, the trial court did not err in denying defendants their attorney fees for obtaining a dismissal of the case in California based on a Florida forum-selection clause.

Kabran v. Sharp Memorial Hospital, S227393—Review Granted—July 29, 2015

Petition for review after the Court of Appeal affirmed an order granting the plaintiff a new trial in a medical malpractice.  This case presents the following issue:  Are the time constraints in California Code of Civil Procedure section 659a jurisdictional such that a court cannot consider late-filed documents?

Disagreeing with an earlier Court of Appeal opinion, the Court of Appeal, Fourth District, Division One, held in a published decision, Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, that, as long as a notice of intention to move for a new trial is timely, the late filing of supporting papers does not deprive the trial court of jurisdiction to grant a new trial.

Review Denied (with dissenting justices)
None.

Depublished
None.

 

July 31, 2015

Long-awaited arbitration opinion, CEQA opinion filing Monday

Almost three and a half years after granting review (and also calendar preference) and after the maximum 90 days following oral argument on the early-May calendar, the Supreme Court on Monday will file its opinion in Sanchez v. Valencia Holding Co.  The court will also file its opinion in a CEQA case.

Sanchez, which has attracted a dozen amicus curiae briefs [disclosure:  including one by Horvitz & Levy], raises the issue whether the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempts state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable.  Additionally, the court 17 months ago invited supplemental briefing on nomenclature:  “In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including ‘unreasonably favorable’ to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); ‘so one-sided as to shock the conscience’ (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); ‘unfairly one-sided’ (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; ‘overly harsh’ (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and ‘unduly oppressive’ (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925).  Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one?  Are there any terms the court should not use?  Is there a formulation not included among those above that the court should use?  What differences, if any, exist among these formulations either facially or as applied?”

The CEQA case is City of San Diego v. Board of Trustees of the California State University.  Argued on the court’s late-May calendar, the case raises the issue whether a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfies its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible.
Two weeks before oral argument, the court limited the issues on review and to be argued to the first of the two issues stated in the petition for review.  That issue is:  “Does a state university satisfy its California Environmental Quality Act (CEQA) obligation to mitigate a project’s off-site environmental impacts when feasible by requesting mitigation funds from the Legislature?  Or, must the university also address in its Environmental Impact Report (EIR) the availability of potential sources of funding other than appropriations from the Legislature and provide compelling reasons why those sources cannot be used to pay for mitigation in the event the Legislature denies the requested appropriation?”
[Disclosure:  Horvitz & Levy represents the defendant.]

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

July 31, 2015

Five cases on Supreme Court’s September calendar

Back from summer break — a break, that is, just from oral arguments — the Supreme Court will hear five cases on its September calendar.

On September 2, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Center for Biological Diversity et al. v. Department of Fish and Wildlife:  (1) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of “fully protected” species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?  (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report?  (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business as usual” baseline?
There are already a dozen amicus curiae briefs on file in this case, but, just three weeks ago, the court invited the Attorney General, “or an appropriate state agency to be identified by the Attorney General,” to file an amicus curiae brief “expressing the State of California’s views, to the extent those views are not already articulated in the briefs of the Department of Fish and Wildlife, on the following question:  May a comparative analysis modeled on the methodology employed by the California Air Resources Board in its Climate Change Scoping Plan, which compared statewide emissions goals to a statewide ‘business as usual’ scenario, properly be used under CEQA to evaluate the significance of an individual proposed project’s greenhouse gas emissions?”
The court set a tight schedule for the Attorney General’s amicus brief and any responses.  The amicus brief is due August 7, the parties’ answer briefs are due 20 days later, and the court said it will grant no extensions.

B.H. v. County of San Bernardino:  (1) Does Penal Code section 11166, subdivision (k), create a mandatory duty requiring a law enforcement agency to cross-report to the relevant social services agency whenever it receives a report of known or suspected child abuse?  (2) If so, when is that duty triggered?  (3) Does Penal Code section 11166, subdivision (a), apply to law enforcement agencies that receive initial reports of child abuse?  (4) If so, what standard should be applied to determine whether a follow-up report is required?
As in the Center for Biological Diversity case, the court recently asked for additional briefing — this time just from the parties — and set a no-extensions briefing schedule.  Just yesterday, the court directed the parties to answer these questions:  (1) Do the reporting requirements of Penal Code section 11166, subdivision (a), apply to law enforcement officers who are investigating allegations of child abuse made by third parties and received by a law enforcement agency?  (2) If not, should Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180 be disapproved?

Larkin v. Workers’ Compensation Appeals Board:  Do the benefits provided under Labor Code section 4458.2 extend both to volunteer peace officers and to regularly sworn, salaried officers?

People v. Goolsby:  Did the Court of Appeal err in holding that Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 prohibited retrying defendant on a lesser related offense, when the prosecution had not formally charged him with the lesser offense but the jury was instructed on it without objection?
Shortly after granting review, the court asked the parties to also brief these questions:  (1) Do the jury verdict and Court of Appeal opinion establish that defendant is guilty of violating Penal Code section 451, subdivision (b), which governs arson of “an inhabited structure or inhabited property?”  (2) If so, should defendant’s conviction for violating Penal Code section 451, subdivision (b), be affirmed?

People v. Cordova:  This is an automatic appeal from a May 2007 judgment of death.  The court’s website does not list issues for such appeals.
We haven’t checked, but arguing the case only eight years after the judgment might be setting a speed record for death penalty appeals.

July 29, 2015

Proposal would leave review-granted Court of Appeal opinions on the books

Rule 8.1105(e)(1) provides that a published Court of Appeal opinion becomes depublished — and thus no longer citeable as precedent — when the Supreme Court grants review in the case.  After granting review, the Supreme Court can order the opinion published again, a power it only occasionally uses.   At least that’s how things work now.

Under a proposal that the Supreme Court released today, the default rule would be the opposite, that is, unless the Supreme Court orders otherwise, a published Court of Appeal opinion would stay published after review is granted, albeit “accompanied by a prominent notation” warning that review has been granted.  According to the proposal, this would put California in line with other American jurisdictions.  The proposal also recounts the 35+-year history of attempts to change the current rule.

In addition to changing the automatic depublication rule, the proposal includes two alternatives concerning the precedential effect of a published Court of Appeal opinion pending Supreme Court review.

Under one alternative, absent a conflict in the case law, a Court of Appeal opinion would remain binding precedent on all California superior courts while the case is pending review in the Supreme Court, which can be a period as long as three years.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Decisions of every division of the District Courts of Appeal are binding . . . upon all the superior courts of this state”].)  If the Supreme Court ended up reversing the Court of Appeal, superior court decisions made in the interim based on the still-published Court of Appeal opinion would be vulnerable to reversal on appeal.

Under the second alternative, a published Court of Appeal opinion that the Supreme Court is reviewing would have “no binding or precedential effect” and could “be cited for persuasive value only.”

Finally, the proposal would add a provision stating the effect of the published Court of Appeal opinion after the Supreme Court’s decision in the case.  The Court of Appeal opinion would have precedential effect to the extent it was not inconsistent with the Supreme Court’s opinion, including the discussion of any issue that the Supreme Court did not reach.

The rule proposal comes directly from the Supreme Court, not, as with most rule changes, from the Judicial Council.  This is because the state constitution gives to the Supreme Court the exclusive authority to decide which of its opinions and those of the Court of Appeal are to be published.  While the proposal comes with the caveat that it has not been approved by the Supreme Court and is not intended to represent the court’s views, the court probably wouldn’t circulate it for public comment without at least tentatively being willing to adopt it.  If you want to try to talk the court out of (or into) making the proposed change, or want to weigh in on which precedential-effect alternative is best, you have until September 25 to submit a comment.

July 28, 2015

The inquisitive Ninth Circuit asks for Supreme Court help again, this time regarding habeas procedure [UPDATED]

For the second time this month and the fifth time since February, the Ninth Circuit is today asking the California Supreme Court to answer a question of state law.  We’ve speculated that the federal appeals court might be getting too inquisitive for the Supreme Court, but this latest request is particularly insistent, especially because the Supreme Court turned down a similar request less than seven years ago.

Stating that the issue is “of exceptional importance to both federal and California courts,” the Ninth Circuit in Robinson v. Lewis asks the Supreme Court to decide:  “When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner’s petition, filed in a California court of review to challenge a lower state court’s disposition of the prisoner’s claims, untimely under California law; specifically, is a habeas petition untimely filed after an unexplained 66-day delay between the time a California trial court denies the petition and the time the petition is filed in the California Court of Appeal?”  The Ninth Circuit claims the question is significant for determining whether and how long the one-year limitations period for seeking federal habeas review has been tolled during state proceedings.

The Ninth Circuit says it asked the same question in Chaffer v. Prosper (9th Cir. 2008) 542 F.3d 662, at the suggestion of the United States Supreme Court no less (Evans v. Chavis (2006) 546 U.S. 189, 199).  Yet, the state Supreme Court declined to answer in Chaffer, stating, “a decision by this court is unlikely to be determinative in the federal proceedings and there is controlling precedent on the question of timeliness.”

Today, the Ninth Circuit persists.  It “recognize[s] that our certification request adds to the substantial caseload of the Court,” but, it says, “[w]e have now had seven more years’ experience applying California’s ‘reasonable time’ standard and we remain uncertain about the scope of California’s rule.”  The Ninth Circuit also claims that “[t]he question of what constitutes filing within a reasonable time under California law has arisen in over 500 district court cases in this circuit since Chavis was decided, and in over 250 since the California Supreme Court last denied our request for certification of this question in Chaffer.”

The Ninth Circuit should know by the end of September, give or take, whether the second time asking is the charm.

[July 30 Update:  The Supreme Court docketed the case yesterday.]

July 27, 2015

Where there’s a will . . . there might be a need for extrinsic evidence, Supreme Court says

A unanimous Supreme Court today overturns longstanding precedent that had precluded the admissibility of extrinsic evidence to reform an unambiguous will.  In an opinion written by Chief Justice Tani Cantil-Sakauye, the court holds that “the categorical bar on reformation of wills is not justified, and . . . that an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.”  The court thus remands the case — Estate of Duke — to the probate court to make the clear and convincing evidence determination.

Of interest generally and beyond the probate field, the court’s opinion discusses the circumstances where the Legislature, despite having enacted related statutes, has left room for the courts to change the common law.  The court says that the history of legislation concerning the admissibility of evidence of a testator’s intent does not “suggest[ ] that the Legislature intended to foreclose further judicial developments of the law concerning the admissibility of evidence to discern the testator’s intent, and ‘we see no reason to interpret the legislation as establishing a bar to judicial innovation.’ ”

The Supreme Court reverses the Second District, Division Four, Court of Appeal, but you can’t hold this one against the lower court — it was following the Supreme Court precedent that today’s opinion overrules.