October 19, 2012

Summary of October 17, 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, October 17, 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 also granted the Ninth Circuit’s request to answer a certified question of state law.

Review Granted

City of Hayward v. Board of Trustees of the California State University, S203939—Review Granted and Held—October 17, 2012

The question presented is whether an Environmental Impact Report (EIR), prepared pursuant to the California Environmental Quality Act (CEQA), in connection with plans for the expansion of a California State University (CSU) campus, and certified by CSU’s Board of Trustees, adequately analyzed the potential environmental impacts of the expansion. The Court of Appeal, First District, Division Three, held in a published opinion, City of Hayward v. Board of Trustees of California State University (2012) 207 Cal.App.4th 446, that the EIR was adequate in all respects except that the analysis of environmental impacts to parkland was not supported by substantial evidence.

The Supreme Court deferred briefing in this case pending consideration and disposition of a related issue in City of San Diego v. Board of Trustees of the California State University, S199557. The question presented in that case is whether a state agency that may have an obligation under CEQA to make “fair-share” payments for the mitigation of off-site impacts of a proposed project can satisfy its duty to mitigate by seeking funding from the Legislature to pay for the mitigation and, if the funds are not appropriated, whether it may proceed with the project on grounds that the mitigation is infeasible. (Full disclosure: Horvitz & Levy LLP is counsel of record for CSU in the lead case.)

Federated University Police Officers Association v. Superior Court (Los Angeles Times Communications), S205468—Review Granted, Transferred to Court of Appeal with Directions to Issue an Order to Show Cause—October 17, 2012

The question presented is whether the Court of Appeal properly denied a petition for writ of mandate seeking to block disclosure of an unredacted police report, which included the names of officers involved in a pepper spray incident on the University of California, Davis campus.

The Supreme Court granted review and transferred the matter to the Court of Appeal, First Appellate District, Division Four, with directions to (1) vacate its order denying the petition for a writ of mandate and (2) issue an order directing the respondent superior court to show cause why the relief sought in the petition should not be granted.

Review Denied (with dissenting justices)

None.

Depublished

None.

Request to Answer Certified Question of State Law Granted

Peabody v. Time Warner Cable, S204804—Request for Certification Granted—October 17, 2012

This is a class action against a cable television provider for allegedly violating California wage and overtime laws. After removal to federal court, the district court granted the employer’s motion for summary judgment on ground that commissions count towards the pay period in which they are earned, rather than the period in which they are paid.

Pursuant to California Rules of Court, rule 8.548, the U.S. Court of Appeals for the Ninth Circuit certified the following question of state law to the California Supreme Court: “To satisfy the compensation requirements, whether an employer can average an employee’s commission payments over certain pay periods when it is equitable and reasonable for the employer to do so.” The Supreme Court granted the Ninth Circuit’s request and restated the question as follows: “May an employer, consistent with California’s compensation requirements, allocate an employee’s commission payments to the pay periods for which they were earned?”

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