February 21, 2011

Summary of February 16, 2011 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, February 16, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request. This week we also note a case where the Court has granted a request by the Ninth Circuit to answer a certified legal question pursuant to California Rules of Court, rule 8.548.

Review Granted


Review Denied (with dissenting justices)

McCaskey v. California State Auto. Assn., S188788—Review Denied [Baxter and Corrigan, JJ., voting for review]—February 16, 2011

This was an action by former employees against their employer, asserting claims for breach of contract and age discrimination in violation of FEHA (disparate treatment, disparate impact, and retaliation). The employees alleged that their employer had wrongfully rescinded its policy of relaxing sales quotas for senior employees and subsequently terminated employees for refusing to agree to the rescission or for failing to comply with its more stringent sales quotas. The question presented was whether, on these facts, the employer was entitled to summary judgment the employees’ causes of action.

The Sixth District Court of Appeal held in a published opinion, McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, that the record regarding the breach of contract claim raised a triable issue of fact concerning whether defendants honored the relaxed sales quota policy for an agreed time or, in the alternative, for a reasonable time. The court also held that the record presented triable issues concerning the genuineness of the defendants’ asserted reasons for eliminating the relaxed sales quota policy. For these reasons, the court reversed the order granting summary judgment as to the breach of contract cause of action, with directions to enter a new order granting summary adjudication only with respect to the employees’ disparate impact and retaliation claims.

Bright v. 99 Cents Only Stores, S189216—Review Denied [Baxter, J., voting for review]—February 16, 2011

This was a putative class action by an employee against an employer under the Private Attorneys General Act of 2004, Labor Code sections 2698 et seq. (PAGA) for violation of an Industrial Welfare Commission (IWC) order requiring employees to be provided with suitable seating. The question presented was whether an employee may state a cause of action for civil penalties under PAGA for violation of such an IWC order.

The Court of Appeal, Second District, Division Five, held in a published opinion, Bright v. 99cents Only Stores (2010) 189 Cal.App.4th 1472, that an employee may state a cause of action under PAGA for violation of a suitable seating order because suitable seating is a condition of labor encompassed by Labor Code section 1198. The court held civil penalties under PAGA (Lab. Code, §2699, subd. (f)) are available for violation of a suitable seating order because no other civil penalty provision applies.



Court of Appeal Publication Request Denied


Action on Ninth Circuit’s Certification of Question of State Law

Perry v. Schwarzenegger (Hollingsworth), S189476 —Review Granted—February 16, 2011

In November 2008, California voters passed a ballot measure, Proposition 8, which amended the state’s constitution to ban gay marriage. Opponents of the measure challenged the proposition in the U.S. District Court for the Northern District of California, asserting that Prop 8 violates the federal constitution. The District Court held that Prop 8 does indeed violate the federal constitution. California’s governor and attorney general refused to appeal that ruling. Prop 8’s non-governmental proponents have appealed to the U.S. Court of Appeals for the Ninth Circuit.

This is a request by the Ninth Circuit, pursuant to California Rules of Court, rule 8.548, for the California Supreme Court to decide whether Prop 8’s proponents have standing under California law to pursue their appeal. As stated by the Ninth Circuit, the question presented is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The California Supreme Court has shortened its normal briefing schedule “to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011.”

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