December 2, 2013

Summary of November 26, 2013 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 26, 2013.  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.   The Court depublished two Court of Appeal opinions and granted the Ninth Circuit’s request that it answer a certified question of state law.

Review Granted

Barry v. State Bar of California, S214058—Review Granted—November 26, 2013

The question presented is whether the trial court lacked jurisdiction to award attorney’s fees under the anti-SLAPP fees after dismissing an attorney’s challenge to State Bar discipline.  The Court of Appeal, Second District, Division Two, held in a published opinion,  Barry v. State Bar of California (2013) 218 Cal.App.4th 1435, that the trial court lacked subject matter jurisdiction because the case involved attorney discipline. The trial court therefore lacked jurisdiction to rule on the State Bar’s anti-SLAPP motion and request for attorney’s fees.

Gonzalez v. Metro Nissan of Redlands, S214121—Review Granted & Held—November 26, 2013

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 a consumer contract as procedurally and substantively unconscionable.  The Court of Appeal, Fourth District, Division Two, held in an unpublished opinion that the arbitration clause at issue was enforceable and not unconscionable. It reversed and remanded the matter to the trial court with directions to grant the defendants’ renewed motion to compel arbitration.  The Supreme Court granted review and deferred further action pending its decision of a related issue in Sanchez v. Valencia Holding Co., S199119.

California Building Industry Association v. Bay Area Air Quality Management District, S213478—Review Granted & Issues Limited—November 26, 2013

The question presented has been limited to the following: Under what circumstances, if any, does the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project.

The Court of Appeal, First District, Division Five, held in a published opinion, California Building Industry Association v. Bay Area Air Quality Management District (2013) 218 Cal.App.4th 1171, that to trigger a CEQA review an agency’s action must be a necessary step in a chain of events which would culminate in physical impact on the environment. An Environmental Impact Report may be required solely because the existing environment may adversely affect future occupants of a project.

Grant of Ninth Circuit Request to Answer Legal Question

Beauchamp v. City of Long Beach, S213420—Question of State Law Request Granted—November 26, 2013

The California Supreme Court granted a request from the United States Court of Appeals for the Ninth Circuit to answer the following questions:  (1) “Does the phrase ‘each offense’ [in Civil Code section 54.3, subdivision (a), specifying penalties for violation of the California Disabled Persons Act,] refer to each occasion when a plaintiff encounters a barrier that denies the plaintiff full and equal access to a public facility, or should a trial court construe ‘each offense’ more narrowly, particularly in situations where a plaintiff repeatedly encounters the same barrier?”

(2) “If the phrase ‘each offense’ is not susceptible to a narrower construction, under what circumstances would the penalty scheme in section 54.3 violate the due process clause of the state Constitution?”

Review Denied (with dissenting justices)

Barker v. Garza, S213760—Review Denied [Kennard, J., voting for review]—November 26, 2013

In an action under the Drug Dealer Liability Act based on the death of the plaintiff’s brother due to an overdose of controlled substances, the issues were: Whether the trial court correctly concluded that the limitations period in Health and Safety Code section 11714, subdivision (a), was not tolled until the plaintiff reached the age of majority; and alternatively, whether section 11714 subdivision (b) tolled the plaintiff’s claim until the expiration of the time in which the defendant could have been prosecuted for controlled substance offenses.

In a published opinion, Barker v. Garza (2013) 218 Cal.App.4th 1449, the Court of Appeal, Second District, Division Eight, affirmed the trial court order sustaining the defendant’s demurrer. The Court held the trial court properly refused to apply minority tolling to the plaintiff’s claim and that the plaintiff waived her argument under section 11714, subdivision (b). The Court also held that even if the argument were not waived, section 11714, subdivision (b), does not apply to the plaintiff’s claim because the defendant was not convicted of a criminal offense involving an illegal controlled substance.


MacDonald v. State of California, S213450—Depublished Court of Appeal Opinion—November 26, 2013

The issue in this case was whether an employee must exhaust the administrative remedy prescribed by Labor Code section 98.7 before suing for retaliatory discharge in violation of Labor Code sections 1102.5 and 6310.  In a published opinion, MacDonald v. State of California (2013) 219 Cal.App.4th 67, the Court of Appeal, Third District, held that exhaustion is required under the rule of exhaustion stated in Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292, and reaffirmed in Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.  The Supreme Court ordered the opinion of the Court of Appeal depublished.

Hendleman v. Los Altos Apartments, S213598—Review Denied [Kennard, J., voting for review] & Depublished Court of Appeal Opinion—November 26, 2013

The issue in this case was whether the trial court properly denied a motion for certification of a class of  apartment building tenants against their landlord because the class lacked ascertainability, community of interest, and superiority.  The Court of Appeal affirmed in a previously published opinion, Hendleman v. Los Altos Apartments (2013) 218 Cal.App.4th 1380.  The Supreme Court denied review and depublished the Court of Appeal opinion.

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