The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on June 21, 2017. 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

Scholes v. Lambirth Trucking, S241825 – Review Granted – June 21, 2017

In this published opinion, Scholes v. Lambirth Trucking (2017) 10 Cal.App.5th 590, a fire from defendant’s storage site damaged plaintiff’s property. Plaintiff alleged negligent trespass, intentional trespass and strict liability. This case presents the following issue: Are the double damages provisions of Civil Code section 3346 applicable to negligently caused fire damage to trees?

Defendant demurred, arguing the plaintiff’s claims were barred by the statute of limitations and that the complaint failed to state a viable cause of action for intentional trespass or strict liability.  The trial court sustained the demurrer without leave to amend on statute of limitations grounds.  The Third District Court of Appeal affirmed, ruling consistent with its holding in Gould v. Madonna (1970) 5 Cal.App.3d 404, that double damages do not apply to fires negligently set.

Melamed v. Cedars-Sinai Medical Center, S241146 – Review Granted and Transferred to Court of Appeal – June 21, 2017

Plaintiff, a physician, operated on a 12-year-old patient, causing complications requiring corrective surgery. Defendant hospital suspended plaintiff who requested a peer review hearing challenging the suspension. Each administrative review upheld the suspension. Plaintiff filed suit against the hospital, its medical staff, and the doctors involved in the suspension decision. Defendants filed an anti-SLAPP motion. The trial court granted the motion and the Court of Appeal, Second District, Division One, affirmed in a published opinion, Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271,

The issues presented for review were: (1) whether the defendant made a prima facie showing that the challenged cause of action arose from a protected activity, here the medical staff’s peer review process, and (2) whether the plaintiff has shown a probability of prevailing on the claim. The Supreme Court granted review and transferred the matter back to the Court of Appeal for reconsideration in light of Park v. Board of Trustees of the California State University (2017) 2 Cal.5th 1057.

Scaccia v. Superior Court, S241695 – Review Granted and Transferred to Court of Appeal – June 21, 2017

Code of Civil Procedure section 639 (section 639) concerns the appointment of referees—including discovery referees—in civil actions.  Section 639, subdivision (d)(6)(B), provides: “In determining whether a party has established an inability to pay the referee’s fees under subparagraph (A), the court shall consider only the ability of the party, not the party’s counsel, to pay these fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider among other things, the estimated cost of the referral and the impact of the proposed fees on the party’s ability to proceed with the litigation.”  Subdivision (d)(3) states: “all appointments of referees pursuant to this section shall be by written order and shall include . . . the subject matter or matters included in the reference.”

In Scaccia v. Superior Court, C084225, the petitioner filed a writ petition to reverse the trial court’s appointment of a discovery referee under section 639 on the grounds that the petitioner is indigent.  The Third District Court of Appeal summarily denied the petition. The Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to vacate the denial of the writ petition, to issue an alternative writ, and “to reconsider the appropriate scope of the reference under Code of Civil Procedure section 639, subdivision (d)(3) and the parties’ ability to pay under Code of Civil Procedure section 639, subdivision (d)(6)(B).”

Review Denied (with dissenting justices)

None.

Depublished

In re Isabella M., S242008 – Review Denied and Depublished – June 21, 2017

In In re Isabella M. (2017) 10 Cal.App 5th 535, the alleged father of Isabella M., a minor, was incarcerated from the time of her birth until she was 20 months old. The juvenile court denied alleged father’s petition to adjust his parental status from alleged to presumed father and thereafter terminated his paternal rights. The Court of Appeal, Second District, Division Seven, affirmed.  The Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.