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, July 17, 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.

Review Granted

Evan Zohar Construction & Remodeling v. Bellaire Townhouses, S210804—Review Granted—July 17, 2013

The question presented is whether Code of Civil Procedure section 1008, subdivision (b), which governs motions for reconsideration, applies to renewed motions for relief from default judgment under Code of Civil Procedure section 473, subdivision (b).

The Court of Appeal, Second District, Division Four, held in a published opinion, Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2013) 215 Cal.App.4th 277, that the trial court lacked discretion to consider a renewed motion for relief from default after finding that there were no new or different facts. The court held, as a matter of law, that the failure to comply with section 1008 deprived the trial court of jurisdiction to reach the merits of the renewed section 473 motion.

Review Denied (with dissenting justices)

Gonzalez v. Downtown LA Motors, LP, S210681—Review Denied [Baxter, J., voting for review]—July 17, 2013

The questions presented were: (1) Does a non-hourly employer comply with Wage Order No. 4 if the compensation it pays its employees equals or exceeds the employees’ total hours on the clock multiplied by the minimum hourly wage? Or must the employer pay additional wages for time on the clock during which the employee is not performing wage-earning tasks? (2) Does the holding in Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314—that hourly workers must be paid the minimum hourly wage for each hour worked, even if their total wages exceed the minimum hourly wage times the total hours worked—apply to non-hourly employees who are paid on a piece-rate or commission basis?

The Court of Appeal, Second District, Division Two, held in a published opinion, Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, that: (1) failing to pay employees for time spent performing tasks other than tasks paid on a piece-rate basis violated Wage Order No. 4, which provides: “Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise” (Cal. Code Regs., tit. 8, § 11040, subd. (4)(B)); and (2) substantial evidence supported the trial court’s implied finding of willfulness in awarding penalties under Labor Code section 203.

San Diego Unified School District v. Commission on Professional Competence (Jesperson), S210406—Review Denied [Corrigan, J., voting for review]—July 17, 2013

After a school district dismissed a teacher on grounds he inappropriately touched a student, the Commission on Professional Competence determined the district had not proven the teacher’s evident unfitness to teach, immoral conduct, or persistent violation of district regulations. The district filed a petition for a writ of mandate in the Superior Court, which granted the petition and vacated the Commission’s decision. The teacher appealed.

The Court of Appeal, Fourth District, Division One, held in a published decision, San Diego Unified School District v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, that: (1) the Superior Court used an erroneous premise to rebut the presumption of correctness concerning the Commission’s findings; (2) the Superior Court failed to give “great weight” to the Commission’s credibility determinations; and (3) there was no substantial, credible, or reliable evidence to support a finding that the teacher’s touching of students was so offensive, inappropriate, or immoral that it rendered him unfit to teach.

The questions presented for review were: (1) whether the Court of Appeal improperly reviewed the Commission’s decision to determine whether that decision was supported by the weight of the evidence, rather than reviewing the Superior Court’s decision to determine whether it was supported by substantial evidence; and (2) whether the Court of Appeal erred in setting aside the Superior Court’s finding that a 14-year-old girl’s testimony was credible.

Depublished

Kaiser Cement and Gypsum Corp. v. Insurance Co. of State of Pennsylvania (Truck Insurance Exchange), S210870—Review Denied [Kennard, J., voting for review] and Depublished Court of Appeal Opinion—July 17, 2013

The question presented for review was whether a standard “limit of liability” provision in an insurance policy is an “antistacking” provision that allows an insurer issuing multiple insurance policies to limit coverage to just one policy limit, thereby avoiding the “all-sums-with-stacking” rule set forth in State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186.

The Court of Appeal, Second District, Division Four, held in its now-depublished opinion, Kaiser Cement And Gypsum Corporation v. Insurance Company of the State of Pennsylvania (2013) 215 Cal.App.4th 210, that: (1) an excess liability insurer’s indemnity obligation did not attach until all collectible primary policies were exhausted; and (2) a primary liability insurer’s indemnity obligation for continuing injuries was not subject to annual stacking.