January 30, 2011

Summary of January 26, 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, January 26, 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 there were no outright grants of review, but two grant-and-holds and several cases in which one justice dissented from the denial of review.

Review Granted

Hernandez v. Chipotle Mexican Grill, Inc., S188755 —Review Granted and Held—January 26, 2011

The issue presented is whether an employer owes a duty not only to provide meal and rest breaks but also to ensure that employees actually take their breaks. The Court of Appeal, Second District, Division Eight, held in an unpublished opinion that an employer must provide employees breaks, but need not ensure that employees take those breaks. The same issue is pending in Brinker Restaurant Corp. v. Superior Court, S166350. We had earlier predicted that the Court would issue a grant-and-hold in this case.

Gonzalez v. Southern California Gas Co., S188956 —Review Granted and Held—January 26, 2011

The issue presented is whether it was reasonably foreseeable that a car would drive off the road and strike a gas meter assembly over 11 feet from the curb, making a gas company liable for the death of a young woman who died in the accident. The Court of Appeal, Fourth District, Division One, held in an unpublished opinion that the harm was not foreseeable and the gas company owed the plaintiffs’ decedent no duty of care. The same issue is pending in Cabral v. Ralphs Grocery Co., S178799. Full disclosure: Horvitz & Levy LLP represents the defendant in Gonzalez.

Review Denied (with dissenting justices)

Stonewall Insurance v. Superior Court, S188836 —Review Denied [Kennard, J., voting for review]—January 26, 2011

This was a declaratory relief action by a building materials company against an excess insurance carrier to establish coverage for numerous asbestos-related personal injury claims. The issue presented was whether the trial court properly determined that the building materials company had exhausted its umbrella insurance policies, which would allow the company to seek coverage from the defendant excess insurer.

In an unpublished decision, the Court of Appeal, Second District, Division Two, upheld that the trial court’s ruling that the building materials company had exhausted its umbrella insurance policies and could seek coverage from the excess insurer. Justice Kathryn Doi Todd dissented, stating she found “absolutely no factual basis in the record or the governing case law to hold that [the excess insurer] is barred from litigating the issue of whether [the company’s] primary umbrella policies have been exhausted.”

Sarale v. Pacific Gas & Electric, S188401—Review Denied [Kennard, J., voting for review]—January 26, 2011

This was an action by landowners against a utility, alleging the utility engaged in excessive trimming of commercially productive walnut trees under the utility’s power lines and exceeded the scope of the company’s easement over plaintiffs’ private property. The issue presented was whether the trial court properly granted the utility’s demurrers and dismissed the action pursuant to Public Utilities Code section 1759, which bars Superior Court actions that will hinder or interfere with the exercise of regulatory authority by the Public Utilities Commission.

The Third District Court of Appeal affirmed the judgment of dismissal in a published decision, Sarale v. Pacific Gas & Elec. Co. (2010) 189 Cal.App.4th 225. The court concluded that “challenges to [the utility’s] tree trimming as unreasonable, unnecessary, or excessive lie within the exclusive jurisdiction of the commission to decide.” Justice Ronald B. Robie dissented, stating his view that “adjudication of these cases by the superior court would [not] interfere with [the commission’s] exercise of its regulatory authority over vegetation management around power lines.”

Lickter v. Lickter, S188746—Review Denied [Moreno, J., voting for review]—January 26, 2011

This was an action by grandchildren, who were their grandmother’s intestate heirs, against their father and others for elder abuse of their deceased grandmother. The issue presented was whether the grandchildren had standing to commence and maintain the action under Welfare and Institutions Code section 15657.3, subdivision (d).

The Third District Court of Appeal held in a published decision, Lickter v. Lickter (2010) 189 Cal.App.4th 712, that the grandchildren, while former beneficiaries of their grandmother’s trust, had no standing to pursue an elder abuse action because they were not “interested persons” within the meaning of the Welfare and Institutions Code. The court explained: “To be an ‘interested person’ for purposes of instituting or participating in a particular proceeding under Probate Code section 48—and, by extension, under subdivision (d) of Welfare and Institutions Code section 15657.3—the person must have an interest that may be impaired, defeated, or benefited by the proceeding. Plaintiffs were former beneficiaries of [their grandmother’s] trust, as they already had been paid the amounts they were owed under the trust. Thus, plaintiffs had no such interest in this elder abuse action.”

City of Merced v. Superior Court, S189022—Review Denied [Kennard, J., voting for review]—January 26, 2011

This was a writ proceeding by a city to prevent enforcement of a trial court order compelling disclosure of the city’s contingency fee agreement with its counsel. The petition arose from the city’s civil action against an oil company arising from alleged contamination of the city’s public water supply. The city claimed the fee agreement was protected by the attorney-client privilege. The oil company argued that the Supreme Court has implied a nonstatutory exception to the privilege in its decisions in People ex rel Clancy v. Superior Court (1985) 39 Cal.3d 740 and County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, based on the public policy of ensuring government attorney neutrality in public nuisance actions. The Fifth District Court of Appeal granted the requested writ of mandate in an unpublished decision, reasoning that if such an exception to the attorney-client privilege exists, the company “would still be required to make a threshold showing of facts supporting the exception’s application” and had failed to do so here.

Depublished

None.

Court of Appeal Publication Request Denied

None.

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