April 4, 2014

Pro Tem parade begins on May calendar for Kennard-less court [UPDATED]

The Supreme Court this afternoon announced its calendar for early May, the only month in which the court has two oral argument sessions.  The early-May calendar will be the first in 25 years without Justice Kennard on the court.  Because Governor Brown has yet to name Justice Kennard’s replacement, Court of Appeal justices will help decide the cases as pro tem Supreme Court justices.  Not all have been named yet, but there should be a dozen different pro tems, one for each of the 12 cases the court will hear in a little over four weeks.

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

Verdugo v. Target Corporation:  At the Ninth Circuit’s request, the court will answer this state law question — “In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator (‘AED’) for cases of sudden
cardiac arrest?”  (Third District Court of Appeal Justice George Nicholson is the pro tem.)

City of Los Angeles v. County of Kern:  Does 28 U.S.C. section 1367(d) require a party to refile its state law claims within 30 days of their dismissal from a federal action in which they had been presented, or does it instead suspend the running of the limitations period during the pendency of the claims in federal court and for 30 days after their dismissal?  (Third District Court of Appeal Justice Vance Raye is the pro tem.)

Paratransit Inc. v. Unemployment Insurance Appeals Board:  Did the trial court properly find that employee misconduct within the meaning of Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671 disqualified a discharged employee from receiving unemployment insurance benefits?  (Sixth District Court of Appeal Justice Eugene Premo is the pro tem.)

People v. Avila:  [This is an automatic appeal from a July 2005 judgment of death.  The court's website does not list issues for such appeals.]  (With a pro tem to be named later.)

People v. Boyce:   [This is an automatic appeal from a September 2000 judgment of death.  The court's website does not list issues for such appeals.]  (Second District, Division 6, Justice Steven Perren is the pro tem.)

People v. Hensley:   [This is an automatic appeal from an October 1995 judgment of death.  The court's website does not list issues for such appeals.]  (First District, Division Three, Justice Stuart Pollak is the pro tem.)

Gregory v. Cott:  Did the doctrine of primary assumption of the risk bar the complaint for damages brought by an in-home caregiver against an Alzheimer’s patient and her husband for injuries the caregiver received when the patient lunged at her?  (With a pro tem to be named later.)

Beacon Residential Community Association v. Skidmore Owings and Merrill LLP:  May an architect who provides services to a residential developer be liable to the eventual purchasers of the residences for negligence in the rendition of those services?  (With a pro tem to be named later.)  [Disclosure:  Horvitz & Levy represents the defendant in this case.]

People v. Whitmer:  Was defendant properly sentenced on multiple counts of grand theft or did his multiple takings constitute a single offense under People v. Bailey (1961) 55 Cal.2d 514?  (With a pro tem to be named later.)

Conservatorship of McQueen:  Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to the Enforcement of Judgments Statutes (Code Civ. Proc., § 685.040 et seq.) if the statutory authority underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.)?  (Fifth District Court of Appeal Justice Charles Poochigian is the pro tem.)  [Disclosure:  The California Academy of Appellate Lawyers submitted an amicus curiae brief in this case.  A number of Horvitz & Levy attorneys are Academy members.]

People v. Vargas:  Did the trial court abuse its discretion under People v. Superior Court (Romero) (1996) 13 Cal.45th 497, by failing to dismiss one of defendant’s two strikes, given that they arose from the same act?  (Fourth District, Division One, Justice Terry O’Rourke is the pro tem.)

People v. Capistrano:   [This is an automatic appeal from a January 1998 judgment of death.  The court's website does not list issues for such appeals.]  (Fifth District Court of Appeal Justice Rosendo Pena, Jr., is the pro tem.)

[April 9 Update:  the pro tems to be named later have now been named:

People v. Avila -- First District, Division Four, Justice Timothy Reardon.

Gregory v. Cott -- Second District, Division Eight, Justice Laurence Rubin.

Beacon Residential Community Association v. Skidmore Owings and Merrill LLP -- First District, Division Two, Justice James Richman.

People v. Whitmer -- Sixth District Presiding Justice Conrad Rushing.]

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