May 11, 2012

Summary of May 9, 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, May 9, 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 ordered a Court of Appeal opinion in a civil case depublished for the sixth time so far this year. Especially when viewed in light of the number of criminal opinions depublished (two just this week), this might suggest that the Court is becoming more willing to exercise its depublication powers than it has been in recent years.

Review Granted

Martinez v. Brownco Construction, S200944—Review Granted—May 9, 2012.

An injured worker and his wife brought this action against a demolition contractor for negligence and loss of consortium. Following offers to compromise and a later jury trial, the trial court entered judgment on the jury’s verdict, awarding damages to the worker and his wife and also awarding costs. Both sides appealed the award of costs. The question presented is whether the last offer in a series of offers to compromise under Code of Civil Procedure section 998 is operative for purposes of the cost-shifting provisions of section 998, subdivision (c).

The Court of Appeal, Second District, Division One, held in a published opinion, Martinez v. Brownco Const. Co., Inc. (2012) 203 Cal.App.4th 507, that where a plaintiff serves a series of offers to compromise under section 998, each new offer does not extinguish the preceding offer and, therefore, the last offer is not necessarily the operative one for purposes of applying section 998’s cost-shifting provision.

Buzenes v. Nuvell Financial Services, S200376—Review Granted and Held—May 9, 2012.

The plaintiff sued the defendant finance companies after the car she purchased was repossessed. The Court of Appeal, Second District, Division Five, affirmed the trial court’s order denying the defendants’ petition to compel arbitration on the ground that the arbitration provision at issue is unconscionable and unenforceable. The question presented is whether the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __, 131 S.Ct. 1740, preempts state law rules invalidating mandatory arbitration provisions in consumer contracts on the ground that they are procedurally and substantively unconscionable. The Supreme Court granted and held pending its decision in Sanchez v. Valencia Holding Company, S199119, which presents the same issue.

Review Denied (with dissenting justices)

Shoyoye v. County of Los Angeles, S201348—Review Denied [Kennard and Werdegar, JJ., voting for review]—May 9, 2012.

This was an action in which an arrestee sued a county for false imprisonment and violation of the Tom Bane Civil Rights Act, Civil Code section 52.1, alleging he was unlawfully detained in jail. The trial court entered judgment on a jury verdict for the arrestee and awarded damages. The county appealed.

In a published decision, Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, the Second Appellate District, Division Four, affirmed in part and reversed in part. It held a wrongful detention is not remediable under the Tom Bane Civil Rights Act where the only “threat, intimidation, or coercion,” as required for liability under the statute, is inherent in the constitutional violation—here, the wrongful detention—rather than as an independent act.


Marriage of Wahl & Perkins, S200790—Depublished—May 9, 2012.

A former husband filed a motion for sanctions based on his former wife’s conduct with respect to two post-dissolution orders. The trial court ordered $552,153.28 as a sanction. The former wife appealed.

The Court of Appeal, Sixth District, held in a published opinion, In re Marriage of Wahl and Perkins (2012) 203 Cal.App.4th 108, that (1) the court was not required to issue a contempt order or judicial declaration before awarding sanctions; (2) the court could award the former husband attorney’s fees incurred in litigation in another state; (3) the award of $552,153.28 in sanctions was not unreasonable; and (4) the former wife’s appeal was frivolous and warranted appellate sanctions.

The Supreme Court denied review and, on its own motion, ordered the Court of Appeal decision depublished.

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