January 18, 2013

Summary of January 16, 2013 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, January 16, 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. This week we note the Court has granted review in an especially large number of civil cases and, as we discussed here, also has granted the Ninth Circuit’s request to answer a certified legal question.

The court has also ordered a Court of Appeal opinion depublished, strongly suggesting that the practice of depublication is enjoying a return to favor under Chief Justice Cantil-Sakauye. The opinion is from the Second District, Division Eight, and is one of three post-Brinker wage-and-hour decisions from that division that have been depublished recently. Read here for the UCL Practitioner’s take on the depublication order and what it means for the development of the law post-Brinker.

Review Granted

Riverside County Sheriff’s Department v. Stiglitz (Riverside Sheriff’s Association), S206350—Review Granted; Issues Limited—January 16, 2013

The question presented for review is limited to whether the hearing officer in an administrative appeal of the dismissal of a correctional officer, who was an employee of the Riverside County Sheriff’s Department, has the authority to grant a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531.

The Court of Appeal, Fourth District, Division Two, held in a published opinion, Riverside County Sheriff’s Dept. v. Stiglitz (2012) 209 Cal.App.4th 883, that: (1) the hearing officer’s authority to order disclosure of peace officer personnel records was reviewable by administrative mandamus; (2) the hearing officer had authority to order disclosure of peace officer personnel records pursuant to the memorandum of understanding (MOU); (3) due process requires motions for disclosure of peace officer personnel records to be allowed in Section 3304(b) disciplinary hearings, if relevant; and (4) due process required a motion for disclosure of peace officer personnel records to be allowed under the MOU.

Kandy Kiss of California v. Tex-Ellent, S206354—Review Granted—January 16, 2013

The question presented is whether a party, who obtains the dismissal of a breach of contract action on procedural grounds, is entitled to an award of attorney fees under Civil Code Section 1717 as the prevailing party in an action on a contract. The Court of Appeal, Second District, Division Eight, held in a published opinion, Kandy Kiss of California, Inc. v. Tex-Ellent, Inc. (2012) 209 Cal.App.4th 604, that (1) the defendant was able to obtain a complete and final dismissal, based entirely on procedural grounds, of the contract claims against it and was therefore the party prevailing on the contract, even though the matter could be pursued in federal court, and (2) Civil Code Section 1717 allows the court to award the prevailing party reasonable attorney’s fees.

Henderson v. Farmers Group, S207068—Review Granted & Held—January 16, 2013

Review is held pending the Supreme Court’s decision in Zhang v. Superior Court, S178542, which presents the following issues: (1) Can an insured bring a cause of action against its insurer under the Unfair Competition Law (UCL), Business and Professions Code Section 17200, based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action?

The Court of Appeal, Second District, Division Four, held in a published opinion, Henderson v. Farmers Group, Inc. (2012) 210 Cal.App.4th 459, that Moradi-Shalal does not bar a UCL cause of action based on an insurer’s bad faith, even though the conduct may also be a violation of the Unfair Insurance Practices Act (UIPA).

The Gillette Co. v. Franchise Tax Bd., S206587—Review Granted—January 16, 2013

The question presented is whether multistate taxpayers are required to apportion business income according to the formula set forth in Revenue and Taxation Code section 25128 as amended in 1993, or if they can elect to apportion income according to the formula set forth in former Revenue and Taxation Code section 38006 pursuant to the adoption of the Multistate Tax Compact of 1974?

The Court of Appeal, First District, Division Four, held in a published opinion, The Gillette Co. v. Franchise Tax Bd. (2012) 209 Cal.App.4th 938, that: (1) the Multistate Tax Compact is a valid and enforceable interstate compact; (2) the Multistate Tax Compact superseded Section 25128; (3) during the tax years at issue, Section 25128 was an unconstitutional violation of the prohibition against impairing contracts; and (4) the purported change to the apportionment formula under the 1993 amendment to Section 25128 would violate the reenactment rule of the state constitution.

Review Denied (with dissenting justices)

Avalonbay Communities v. S.C. (Murillo), S206773—Review Denied [Kennard and Corrigan, JJ., voting for review]—January 16, 2013

Review was sought after the summary denial of a writ petition. There is accordingly no Court of Appeal opinion and the writ petition is unavailable.

Depublished

Tien v. Tenet Healthcare Corporation, S206597—Depublished Court of Appeal Opinion—January 16, 2013

The questions presented were: (1) in a wage-and-hour class action, whether substantial evidence supported the trial court’s denial of class certification; (2) whether the trial court’s failure to invite supplemental briefing on Brinkley v. Public Storage Inc. (2008) 167 Cal.App.4th 1278 was a harmless error; and (3) whether it was error for the trial court to consider the merits of the claim in ruling on class certification.

The Court of Appeal, Second District, Division Eight, held in Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, that: (1) substantial evidence supported finding individual questions predominated as to whether employers provided adequate meal periods; (2) substantial evidence supported finding individual questions predominated as to whether employers provided adequate rest breaks; (3) substantial evidence supported finding individual questions predominated as to employees’ pay stub claims; (4) any error in the court’s failure to invite supplemental briefing was harmless; and (5) the trial court did not exceed its authority by considering the underlying merits in ruling on class certification.

Grant of 9th Circuit Request to Answer Certified Legal Question

Verdugo v. Target Corporation, S207313—Question of State Law Request Granted—January 16, 2013

The Ninth Circuit certified the following question of California law to the Supreme Court: 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?

Mary Ann Verdugo, age 49, was shopping at a Target store in Pico Rivera, California when she suffered sudden cardiac arrest. Target did not have an AED in its store. Verdugo could not be resuscitated by the time paramedics arrived. The District Court granted Target’s motion to dismiss, holding Target had no duty to acquire and install an AED. A 2-1 panel of the Ninth Circuit asked the California Supreme Court to decide the state law issue.

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