March 31, 2017

Summary of March 22 and 29, 2017 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 conferences on March 22 and 29, 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

Chen v. L.A. Truck Centers, LLC, S240245 – Review Granted – March 29, 2017

In a published decision, Chen v. L.A. Truck Centers, LLC (2017) 7 Cal.App.5th 757, the Court of Appeal, Second District, Division Eight, reversed the trial court’s application of Indiana law in a products liability action arising out of a tour bus accident in Arizona that killed or injured 10 Chinese nationals.  The defendant Indiana-based bus manufacturer settled, as did other defendants, leaving a California bus dealer as the lone defendant at trial.  The dealer prevailed at trial under Indiana law, which is more favorable to defendants than California law.

This case presents the following issue: Must a trial court reconsider its ruling on a motion to establish the applicable law governing questions of liability in a tort action when the party whose presence justified that choice of law settles and is dismissed?

County of San Diego v. Commission on State Mandates, S239907 – Review Granted – March 29, 2017

In a published decision, County of San Diego v. Commission on State Mandates (2016) 7 Cal.App.5th 12, the Court of Appeal, Fourth District, Division One, reversed the lower court’s decision affirming the Commission on State Mandates’ holding that local governments and school districts were not eligible for reimbursement.  The Commission previously concluded costs associated with eight activities required of local governments by the  Sexually Violent Predator Act (SVPA, Welf. & Inst. Code, § 6600 et seq.) were eligible for reimbursement because they were state mandated.  The Commission revisited that decision based on the passage of Proposition 83 in 2006 and concluded that six of the duties it deemed state mandated in 1998 were instead mandated by the ballot initiative, thereby removing reimbursement eligibility.

This case presents the following issue: Did The Sexual Predator Punishment and Control Act (the voter initiative otherwise known as “Jessica’s Law” or Proposition 83), which amended and reenacted provisions of the Sexually Violent Predator Act, a statutory scheme that the Commission on State Mandates had found to include reimbursable state mandates, constitute a “change in the law” sufficient to support the Commission’s decision that some of those mandates were no longer reimbursable by the State of California?

FTI v. Superior Court, S239402 – Review Granted and Held – March 29, 2017

The Supreme Court granted review of a summary denial of a petition for writ of mandate by the Court of Appeal, First District, Division Four, in FTI v. Superior Court (Dec. 29, 2016, A149860).  The Court has delayed further action pending the United States Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (2016) 1 Cal.5th 783, certiorari granted January 19, 2017, __ U.S. __ [137 S.Ct. 827].

Moalem v. Gerard, S239434 – Review Granted – March 22, 2017

In an unpublished opinion, Moalem v. Gerard (Dec. 1, 2016, B268963), the Court of Appeal, Second District, Division Two, affirmed a finding of a private nuisance  when the defendant-neighbor’s tree grew at an angle over her adjoining plaintiff-neighbor’s property.  The court held negligence was not required finding for a private nuisance arising from an overgrown tree.

The Supreme Court limited review to the following issues: (1) Is negligent or intentional action a necessary element of a cause of action for abatement of a natural condition-private nuisance based on a failure, or omission to act and, if so, should tree encroachment cases be exempted from this rule? (2) Assuming negligence is required, can negligence be demonstrated under the circumstances of this case? Does it matter that defendant owned both parcels of land when the tree was maturing? (3) Who should bear the expense of tree removal when it is infeasible to remove only the encroaching parts of an otherwise healthy tree that overhangs a neighbor’s premises? Should the tree owner be compensated for the loss of an otherwise healthy tree that is found to create a nuisance? (4) When, if ever, is it proper for a defendant to raise the issue of comparative negligence in private nuisance actions? (See Tint v. Sanborn (1989) 211 Cal.App.3d 1225, and Kafka v. Bozio (1923) 191 Cal. 746, 748.) Is the fact that part of the subject tree was encroaching on the property before plaintiffs purchased it a relevant consideration?

National Shooting Sports Foundation v. State of California, S239397 – Review Granted – March 22, 2017

In a published opinion, National Shooting Sports Foundation, Inc. v. State of California (2016) 6 Cal.App.5th 298, the Fifth District Court of Appeal held that plaintiff’s action to invalidate Penal Code section 31910, subdivision (b)(7)(A), on the ground it is impossible to comply with the statute, survived judgment on the pleadings.  Penal Code section 31910, subdivision (b)(7)(A) designates a handgun as unsafe unless it is  designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired.

This case presents the following issues: (1) Can a statute be challenged on the ground that compliance with it is allegedly impossible? (2) If so, how is the trial court to make that determination?

Newport Harbor Ventures v. Morris Cerullo World Evangelism, S239777  – Review Granted – March 22, 2017

In a published opinion, Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, the Court of Appeal, Fourth District, Division Three, held that the filing of an amended complaint does not automatically reopen the period for bringing an anti-SLAPP motion and therefore, defendant’s anti-SLAPP motion filed within 60 days of the third amended complaint was untimely.

This case presents the following issues: (1) May a motion to strike under the anti-SLAPP statute be brought against any claim in an amended complaint, including claims that were asserted in prior complaints? (2) Can inconsistent claims survive an anti-SLAPP motion if evidence is presented to negate one of the claims?

Stand Up For California! v. State Of California (North Fork Rancheria Of Mono Indians), S239630 – Review Granted and Held – March 22, 2017

In a published decision, Stand Up For California! v. State Of California (North Fork Rancheria Of Mono Indians) (2016) 6 Cal.App.5th 686, a divided panel of the Fifth District Court of Appeal held the Governor did not have authority to negotiate a tribal-state compact authorizing class III gaming when the land taken into trust was not Indian land because a state referendum disapproved of the legislative ratification of a compact between the Governor and the Indian tribe.

The Court deferred briefing pending resolution of United Auburn Indian Community of the Auburn Rancheria v. Brown, S238544, which presents the following issue: May the Governor concur in a decision by the Secretary of the Interior to take off-reservation land in trust for purposes of tribal gaming without legislative authorization or ratification, or does such an action violate the separation of powers provisions of the state Constitution?

Nationwide Biweekly Administration v. Superior Court, S239979 – Review Granted and Transferred – March 22, 2017

In Nationwide Biweekly Administration v. Superior Court (Feb. 1, 2017, A150264), the Court of Appeal, First District, Division One, summarily denied a petition for writ of mandate. The Supreme Court granted review and remanded with directions to the Court of Appeal vacate its order denying the petition and to issue an order to show cause why defendant does not have a right to a jury trial where the government seeks to enforce the civil penalties for unfair competition, for false advertising, or for violations of the Check Sellers, Bill Payers and Proraters Law, authorized under Business and Professions Code sections 17206 and 17536 and Financial Code section 12105, subdivision (d).

Request to Answer Certified Question of State Law Granted

Pitzer College v. Indian Harbor Insurance Company, S239510  – Request to Answer State Law Question Granted – March 22, 2017

The United States Court of Appeals for the Ninth Circuit asked the Supreme Court to decide questions of California law. The federal court ordered briefing deferred pending a determination of  two state law questions on  the notice-prejudice rule with regard to a coverage suit against an insurer.

The issues as restated by the Supreme Court are as follows:  (1) Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis? (2) If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can the notice-prejudice rule apply to the consent provision in this case?

Review Denied (with dissenting justices)

None.

Depublished

None.

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