July 19, 2012

Summary of July 18, 2012 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, July 18, 2012. 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 the Court has also granted a request by the Ninth Circuit to answer a certified legal question pursuant to California Rules of Court, rule 8.548. For a discussion of the certification procedure under Rule 8.548, you should check out this article that Horvitz & Levy partner David M. Axelrad and I prepared, and which was recently published in the Recorder.

Review Granted

Ralph’s Grocery Co. v. Missionary Church of the Disciples of Jesus Christ, S203026—Review Granted—July 18, 2012.

The questions presented are (1) whether members of a church had an unlimited right to use the area in front of a supermarket to solicit donations, irrespective of the store’s established time, place, and manner restrictions for expressive activity on its property; and (2) whether the area in front of the store constituted a public forum under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899.

The Court of Appeal, Second District, Division Four, held in a published decision, Ralph’s Grocery Co. v. Missionary Church of the Disciples of Jesus Christ (2012) 205 Cal.App.4th 490, that: (1) there was no relationship between the church members’ expressive activities and the store’s location that gave the church members any free speech rights to stand at the doors to the store; (2) church members did not have a right to stand at the store doors absent a showing that the store was a public forum; (3) the church members’ exercise of free speech was subject to the store’s reasonable time, place, and manner restrictions; and (4) the store showed the church members’ activities actually interfered with store business.

Review Denied (with dissenting justices)

Sacramento Regional Transit District v. Welch-Brown, S203107—Review Denied [Kennard, J., voting for review]—July 18, 2012.

The question presented was whether an appellant deemed a vexatious litigant by the trial court had satisfied her burden to establish that her claim had merit and was not filed for the purpose of harassment or delay in order to obtain permission to proceed with her appeal. The Court of Appeal, Third District, held the appellant had not satisfied her burden. Appellant then amended and resubmitted her application, which still failed.

Bush v. Horizon West, S203130—Review Denied [Baxter, J., voting for review]—July 18, 2012.

The question presented was whether a daughter bringing suit against a skilled nursing facility for elder abuse, as guardian ad litem for her mother, and for negligent infliction of emotional distress, for herself, is required to arbitrate where the claim for elder abuse would be subject to arbitration and the claim for negligence would not.

The Court of Appeal, Third District, held in a published opinion, Bush v. Horizon West (2012) 205 Cal.App.4th 924, that the daughter was not bound by the arbitration agreement. In the published portion of the decision, the court held that the California Supreme Court’s holding in Ruiz v. Podolsky (2010) 50 Cal.4th 838 was inapplicable since the causes of action did not involve wrongful death or medical malpractice. Additionally, the court held in the unpublished portion of its opinion that the daughter was not subject to the arbitration agreement under the principle of equitable estoppel.



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

Beeman v. Anthem Prescription Management, S203124—Question of State Law Request Granted—July 18, 2012.

Ninth Circuit’s certified question: Does California Civil Code section 2527 compel speech in violation of article I, section 2, of the California Constitution? (Beeman v. Anthem Prescription Management, LLC (9th Cir. 2012) — F.3d —, 2012 WL 2775005.)

Civil Code section 2527 requires drug claims processors to generate studies about pharmacy pricing, summarize the results and disseminate the information to their clients. Three intermediate California appellate courts and two state trial courts have held that the reporting requirement of section 2527 violates article I, section 2, of the California Constitution. The Ninth Circuit panel was of the opinion that the California Supreme Court would conclude that the statute is constitutional under the First Amendment. This could result in “forum shopping” as plaintiffs could sue in federal court to enforce the statute, but would be unable to sue in state court to enforce the same state statute. As we discussed here, the Court granted the Ninth Circuit’s request relatively quickly.

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