March 9, 2011

Still-shorthanded Supreme Court’s April calendar

The Supreme Court today posted its oral argument calendar for April. Like the March calendar for yesterday and today, each case will be heard by a different temporary justice — assigned, as the calendar notes, under “the court’s established alphabetical rotation procedure.”

It’s now been over two months since Justice Moreno announced his retirement. Although there has been short-list speculation about a replacement, Governor Brown has yet to make an appointment.

After April’s arguments, there will be 13 Supreme Court cases with a temporary justice sitting because of the vacancy. If any of those are decided by 4-3 votes with the temporary justice in the majority, people will naturally wonder whether the outcome would have been different had there been a full complement of permanent justices instead of a court that included a justice assigned because of the spelling of his or her last name.

The April cases (and the issues presented, as stated on the court’s website) are:

Franchise Tax Board v. Superior Court: Does article I, section 16, of the California Constitution accord a taxpayer a constitutional right to a jury trial in an action for a refund of taxes under Revenue and Taxation Code section 19382?

People v. Tran: Did the trial court abuse its discretion in allowing the prosecution to introduce evidence of defendant’s own uncharged criminal acts in order to prove a pattern of criminal activity for purposes of Penal Code section 186.22, subdivisions (a) and (e)?

People v. Castaneda: [This is an automatic appeal from a death sentence. The court’s website does not list issues for such appeals.]

Oasis West Realty, LLC v. Goldman: Does an attorney breach the duty of loyalty owed a former client when he or she actively takes a position against the former client on the same issue for which the lawyer previously had been retained, even though the lawyer is acting on his or her own behalf and there is no subsequent representation or employment?

Diaz v. Carcamo: When a plaintiff alleges negligent driving against an employee and negligent hiring against the employer, does the employer’s admission of vicarious liability for the employee’s negligence eliminate the negligent hiring cause of action and preclude evidence of the employee’s poor driving record? [Disclosure: Horvitz & Levy filed an amicus curiae brief in this case.]

Sullivan v. Oracle Corporation: Answering these questions asked by the Ninth Circuit — (1) Does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week? (2) Does Business and Professions Code section 17200 et seq. apply to the overtime work described in question one? (3) Does section 17200 et seq. apply to overtime work performed outside of California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the federal Fair Labor Standards Act (29 U.S.C. § 207 et seq.)?

Other than the automatic appeal from a January 2000 judgment of death, Sullivan is the oldest case on the April calendar. In Sullivan, it’s been almost two full years since the Supreme Court agreed to answer the Ninth Circuit’s California-law questions.

Leave a Reply