March 16, 2012

Summary of March 14, 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, March 14, 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.

Review Granted

Rose v. Bank of America, S199074—Review Granted – March 14, 2012

Account holders brought class action against a bank under California’s Unfair Competition Law, Business & Professions Code section 17200 (UCL), alleging the bank violated the federal Truth in Savings Act (TISA) by failing to properly disclose fee increases on personal bank accounts. The Court of Appeal, Second District, Division Two, affirmed the trial court’s ruling sustaining the bank’s demurrer to the class action complaint.

The Supreme Court granted review. The question presented is whether the plaintiffs have an indirect private right of action under the UCL to enforce violations of TISA where Congress has expressly barred such a private right of action.

Aleman v. Airtouch Cellular, S199642—Review Granted and Held –March 14, 2012

This is a putative action by seventeen employees against their former employer for alleged wage and hour violations. The trial court granted summary judgment for employer against two employees and denied class certification without prejudice. The Court of Appeal, Second District, Division Two, affirmed in part, reversed in part, and dismissed in part the employees’ class action.

The Supreme Court granted and held, ordering briefing deferred pending its decision in Kirby v. Immoos Fire Protection, Inc., S185827, which presents the following issues for review: (1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations or may attorney’s fees be awarded under Labor Code section 218.5; and (2) is the analysis affected by whether the claims for meal and rest periods are brought alone or in connection with claims for minimum wages and overtime?

City of West Covina v. Hassen Imports Partnership, S199066—Review Granted and Transferred [Werdegar and Corrigan, JJ., voted to retain the matter for decision] – March 14, 2012

The Court of Appeal, Second District, Division Four, dismissed an appeal as untimely. The question presented is whether U.S. Bankruptcy Code section 108(c)(2) extends the time to file a notice of appeal until 30 days after the automatic stay is lifted when that date comes after the 60-day deadline provided by the California Rules of Court.

The Supreme Court granted review and transferred to the Court of Appeal, Second District, with directions to vacate its order dismissing the appeal and to reconsider its ruling in light of ECC Construction, Inc. v. Oak Park Calabasas Homeowners Association (2004) 118 Cal.App.4th 1031 and Parker v. Bain (9th Cir. 1995) 68 F.3d 1131.

Apple v. Superior Court (Krescent), S199384—Review Granted – March 14, 2012

Eharmony v. Superior Court (Luko), S199406—Review Granted – March 14, 2012

Ticketmaster v. Superior Court (Luko), S199412—Review Granted – March 14, 2012

The Court of Appeal, Second District, Division Eight, summarily denied a petition for writ of mandate in each of the above cases. The question presented in each case is whether the Song-Beverly Credit Card Act of 1971 (Civ. Code 1747, et seq.), which prohibits retailers from recording a customer’s personal identification information when the customer uses a credit card in a transaction, precludes on-line retailers from obtaining and recording a purchaser’s address and telephone number as a prerequisite to accepting a credit card payment for a purchase of an item that does not need to be shipped to the purchaser.

Review Denied (with dissenting justices)



Bardasian v. Superior Court (Santa Clara Partner’s Mortgage), S199613—Depublished

Borrowers under a deed of trust sought a preliminary injunction to enjoin the trustee’s sale of their house. The trial court enjoined the foreclosure sale but ordered a $20,000 preliminary injunction bond and $500 monthly payments to creditors. The trial court then dissolved the injunction after the borrowers failed to make the payments. The borrowers filed a petition for writ of mandate.

The Court of Appeal, Third District, granted the petition. It held in a published opinion, Bardasian v. Superior Court (2011) 201 Cal.App.4th 1371, that the trial court could not order an injunction bond when it ruled the defendant lender had failed to comply with Civil Code section 2923.5, which requires a lender to contact a borrower to assess the borrower’s financial situation and explore options to prevent foreclosure before issuing a notice of default. The Supreme Court denied review but, on the Court’s own motion, it ordered the Court of Appeal’s opinion depublished.

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