November 12, 2010

Summary of November 10, 2010 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, November 10, 2010. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request. Note that the Court has depublished a Court of Appeal decision over a dissenting vote by Justice Kennard to grant review.

Review Granted

Pinnacle Museum Tower Association v. Pinnacle Market Development, S186149—Review Granted—November 10, 2010

This is a construction defect action brought by a homeowners association on its own behalf, and as a representative of its members, against a condominium project developer for damages to property owned by the association and property owned by association members. The issue presented is whether the homeowners association is bound by an arbitration provision in the common interest development’s covenants, conditions and restrictions, which were executed and recorded before the association came into existence.

The Court of Appeal, Fourth District, Division One, held in a published opinion, Pinnacle Museum Tower Ass’n v. Pinnacle Market Development (US), LLC (2010) 187 Cal.App.4th 24, that: (1) the homeowners association was not bound by a binding arbitration clause in the covenants, conditions and restrictions, or by members’ purchase and sale agreements, and (2) assuming that the homeowners association was bound by a jury waiver provision in the purchase and sale agreements, the provision was not enforceable because it was unconscionable. In so ruling, the majority relied on the reasoning of Treo @ Kettner Homeowners Ass’n v. Superior Court (2008) 166 Cal.App.4th 1055, 1067, which declined to treat a judicial reference provision in CC&R’s as a valid agreement by a homeowners association to waive a jury trial.

Justice Terry O’Rourke dissented, finding better reasoned the rule laid out in Villa Milano Homeowners Assn. v. Il Davorge (2000) 84 Cal.App.4th 819, 824-825, which held that “[i]ndividual condominium unit owners ‘are deemed to intend and agree to be bound by’ the written and recorded CC & R’s,” and the homeowners association is likewise bound because it represents the homeowners’ collective interests.

California Teachers Association v. Governing Board, S185651—Review Granted & Held—November 10, 2010

The issue presented is whether a school district may be required under the terms of a collective bargaining agreement to arbitrate disputes over the granting of a charter school petition, or whether Education Code section 47611.5, subdivision (e), precludes referring such a dispute to arbitration. The same issue is currently before the court in United Teachers Los Angeles v. Los Angeles Unified School Dist., S177403.

Clarendon America Ins. Co. v. Starnet Ins. Co., S186079—Review Granted & Held—November 10, 2010

The issue presented is whether the “Calderon process” (the system of dispute resolution procedures that a common interest development must exhaust pursuant to the Calderon Act, Civil Code section 1375 et seq., before filing suit against a builder, developer, or general contractor for construction or design defects) constitutes a “suit” so as to trigger coverage under a commercial general liability insurance policy. The same issue is presently before the court in Ameron International Corp. v. Insurance Co. of the State of Pennsylvania, S153852.

Review Denied (with dissenting justice)

In re Skyler H., S186170—Review Denied [Kennard, J. voting for review]—November 10, 2010

A county health and human services agency filed a petition to terminate a mother and father’s parental rights over a child. The issues presented were: (1) whether the child’s specific but attenuated Indian heritage invoked federal Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) notice requirements, pursuant to Welfare and Institutions Code section 224.3, subdivision (b); and (2) whether evidence of changed circumstances and the best interests of the child was sufficient to meet the statute’s beneficial parent-child relationship exception.

The Court of Appeal, Fourth District, Division One, held in In re Skyler H. (2010) 112 Cal.Rptr.3d 892, that: (1) information that the child’s great-great-great-grandfather was “full-blooded Cherokee” and her maternal grandmother participated in an annual Indian pow-wow was insufficient to provide the trial court with “reason to know the child is an Indian child” for purposes ICWA notice requirements; (2) the mother’s due process right to be heard was not violated when the trial court considered county health and human services agency reports when ruling on the mother’s petition alleging a change in circumstances; and (3) the evidence was insufficient to establish the exception to termination of parental rights based on the mother maintaining regular visitation and contact with child and the child benefiting from the relationship.

Depublished

In re Skyler H., S186170—Depublication Request Granted—November 10, 2010

See discussion above.

Court of Appeal Publication Request Denied

None.

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