November 26, 2014

Summary of November 25, 2014, 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 Tuesday, November 25, 2014.  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

McLean v. State of California, S221554—Review Granted—November 25, 2014

This case presents the following issues:  (1) When bringing a putative class action to recover penalties against an “employer” under Labor Code sections 203, may a former state employee sue the “State of California” instead of the specific agency for which the employee previously worked?  (2) Do Labor Code sections 202 and 203, which provide a right of action for an employee who “quits” his or her employment, authorize a suit by an employee who retires?

A retired deputy attorney general filed a class action against defendants the State of California and the California State Controller’s Office, alleging defendants violated prompt payment requirements of Labor Code section 202.  The trial court sustained defendants demurrer, finding that the term “quits” in sections 202 and 203 does not apply to employees who retire.

The Court of Appeal, Third Appellate District, in an published opinion (McLean v. State of California (2014) 228 Cal.App.4th 1500), held that:  (1) an employee who quits to retire may sue under sections 202 and 203, (2) the action was proper against the State of California, and (3) the trial court properly dismissed the Controller’s office because an action against a state agency is, in effect, an action against the state.

Hughes v. Pham, S221650—Review Granted & Held—November 25, 2014

The court ordered briefing deferred pending decision in Rashidi v. Moser, S214430, which was argued in October and which presents the following issue:  If a jury awards the plaintiff in a medical malpractice action non-economic damages against a healthcare provider defendant, does Civil Code section 3333.2 entitle that defendant to a setoff based on the amount of a pretrial settlement entered into by another healthcare provider that is attributable to non-economic losses or does the statutory rule that liability for non-economic damages is several only (not joint and several) bar such a setoff?

After a plaintiffs’ jury verdict in a medical malpractice case, the trial court reduced the noneconomic damages to $250,000 under section 3333.2 (a part of MICRA), and applied an earlier settlement to offset the final judgment.  Plaintiffs argued that section 3333.2 is unconstitutional.  If that statute is valid, plaintiffs conceded that an offset was required under MICRA, but they contended the trial court was required to calculate the ratio of economic to noneconomic damages before it applied the MICRA cap.  Plaintiffs also challenged the application of MICRA’s periodic payments provision.  Defendant challenged the judgment against him on numerous grounds.

The Court of Appeal, Fourth Appellate District, Division Two, held in an unpublished opinion, among other things, that section 3333.2 is constitutional and that the trial court correctly determined the ratio of economic and noneconomic damages before it applied the MICRA cap to plaintiffs’ noneconomic damages.

Review Denied (with dissenting justices)



Cutler v. Franchise Tax Board, S221856—Depublished—November 25, 2014

This case presents the issue whether a plaintiff whose lawsuit results in a published opinion finding that a tax statute discriminated on its face on the basis of an interstate element in violation of the commerce clause, was entitled to attorney fees under Code of Civil Procedure section 1021.5, the private attorney general statute.

The trial court denied the plaintiff’s attorney fee motion, ruling that plaintiff’s lawsuit had not conferred a significant benefit on the public or on a large class of people and that the necessity and financial burden of private enforcement were not such as to make an attorney fee award appropriate.

The Court of Appeal, Second Appellate District, Division Eight, reversed in Cutler v. Franchise Tax Board (2014) 229 Cal.App.4th 419, concluding that both of the trial court’s rulings were erroneous.


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