April 11, 2013
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, April 10, 2013. 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.
Gregory v. Cott, S209125—Review Granted—April 10, 2013
The question presented is whether the primary assumption of risk doctrine bars the tort claims of an in-home caregiver for negligence, battery, and premises liability against a patient with Alzheimer’s disease and the patient’s husband.
The Court of Appeal, Second District, Division Five, held in a published opinion, Gregory v. Cott (2013) 213 Cal.App.4th 4, that the primary assumption of risk doctrine barred the in-home caregiver’s claims against the patient and her husband. Justice Armstrong dissented, opining that California law does not extend the doctrine to this context, and that he would limit its application to professional caregivers in institutional settings.
UPDATE: Check out this Metropolitan News-Enterprise article regarding the grant of review in Gregory.
Flores v. West Covina Auto Group, S208716—Review Granted & Held—April 10, 2013
The questions presented are: (1) whether the Consumer Legal Remedies Act (CLRA) is preempted by the Federal Arbitration Act (FAA) to the extent that the CLRA prohibits a buyer’s waiver of the right to participate in a class action; (2) whether the dealer waived its right to compel arbitration by its participation in litigation; and (3) whether the arbitration agreement at issue was unconscionable.
The Court of Appeal, Second District, Division Eight, held in a published opinion, Flores v. West Covina Auto Group, (2013) 212 Cal.App.4th 895, that (1) the FAA preempts the CLRA to the extent that the CLRA prohibits a buyer’s class action waiver; (2) the dealer did not waive the right to compel arbitration by participation in litigation; and (3) the arbitration agreement was not unconscionable. The Supreme Court deferred review pending consideration and disposition of a related issue in Iskanian v. CLS Transportation of Los Angeles, S204032.
Smith v. State of California, S208714—Review Granted & Transferred—April 10, 2013
The Court of Appeal, Fifth District, denied the appellant’s motion to recall the remittitur, indicating that dismissal of the appeal was not due to judicial inadvertence or mistake. Rather, appellant failed to cure his default in the superior court within the time allowed and did not move to vacate the Court of Appeal’s dismissal of the appeal until after its jurisdiction expired.
The Supreme Court granted review and the matter was transferred to the Court of Appeal, Fifth District, with directions to vacate its order denying the motion and to reconsider its ruling in light of California Rules of Court, rules 8.25(b)(5) [constructive filing doctrine] and 8.264(a)(1) [appellate court must promptly notify parties of its orders].
Review Denied (with dissenting justices)