September 13, 2013

Summary of September 11, 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 Wednesday, September 11, 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.

This week, the Court has granted review of a decision of the Sixth District Court of Appeal authored by Justice Franklin D. Elia (and has granted and held in another Sixth District case).  This prompts us to recommend Emily Green’s article in the September 12 issue of the Daily Journal [subscription required], in which she notes that, in the last twelve months, the Supreme Court has reversed six of the seven Sixth District decisions it has reviewed.  According to Green, all six of the opinions reversed were issued by the panel on which Justice Elia typically sits with Presiding Justice Conrad L. Rushing and Justice Eugene M. Premo.

Review Granted

California Building Industry Association v. City of San Jose, S212072—Review Granted—September 11, 2013

This case presents the following issue: What standard of judicial review applies to a facial constitutional challenge to “inclusionary” housing ordinances that require set asides or in-lieu fees as a condition of approving a development permit?

The California Building Industry Association (CBIA) filed a facial challenge to a City of San Jose ordinance that requires developers of residential housing projects to either include “inclusionary” units for low-income individuals or pursue one of four enumerated alternatives, such as dedicating land for the units or paying an in-lieu fee. Applying San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 670, the trial court declared the ordinance invalid because the city had not shown that the ordinance was reasonably related to any “impacts caused by new residential development,” and it granted CBIA’s request for injunctive relief. In a published opinion, California Building Industry Association v. City of San Jose (2013) 216 Cal.App.4th 1373, the Sixth District Court of Appeal reversed and remanded, finding San Remo Hotel inapplicable to the ordinance, which needed only to be rationally related to the City’s police power.

Brown v. Superior Court, S211962—Review Granted & Held—September 11, 2013

Employees brought a putative class action against their employer for violations of California’s wage and hour laws, seeking restitution, damages, and civil penalties on behalf of themselves and all other aggrieved employees, as allowed by the Private Attorneys General Act (PAGA).  The trial court granted the employer’s petition to compel arbitration. In a published opinion, Brown v. Superior Court (2013) 216 Cal.App.4th 1302, the Court of Appeal, Sixth District, directed the trial court to vacate its order and to enter a new order (1) granting the employer’s petition to compel arbitration with respect to all of plaintiffs’ claims except the claim for civil penalties under PAGA, and (2) staying the action as to all of plaintiffs’ claims, including the claim under PAGA, pending resolution of the arbitration.

The Supreme Court granted review, but ordered briefing deferred pending its decision in Iskanian v. CLS Transportation Los Angeles, LLC, S204032, which includes the following issue: Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights?

Leos v. Darden Restaurants, S212511—Review Granted & Held—September 11, 2013

Former employees brought this action against their employer for sexual harassment, retaliation, failure to prevent harassment, and failure to investigate harassment under the Fair Employment and Housing Act (FEHA). The trial court denied the employer’s motion to compel arbitration. In a published opinion, Leos v. Darden Restaurants, Inc. (2013) 217 Cal.App.4th 473, the Court of Appeal, Second District, Division One, reversed and held, among other things, that while the arbitration agreement in the employment contract was procedurally unconscionable, it was not substantively unconscionable in excluding temporary or preliminary injunctive remedies.

The Supreme Court granted review and ordered briefing deferred pending its decision in Baltazar v. Forever 21, Inc., S208345, which presents the following issue: Is an employment arbitration agreement unconscionable for lack of mutuality if it contains a clause providing that either party may seek provisional injunctive relief in the courts and the employer is more likely to seek such relief?

Review Denied (with dissenting justices)

City of Dana Point v. California Coastal Commission, S212432—Review Denied [Baxter, J., voting for review]—September 11, 2013

The City of Dana Point decided to develop a large parcel of coastal land between a public park at the top of a hill and a public beach at the bottom. Public trails ran through the residential portion of the project, linking the park to the beach. Before completing the project, the city adopted an ordinance mandating limited hours of operation for the trails and the installation of pedestrian gates on the trails. Several individuals and an entity filed administrative appeals of the ordinance with the California Coastal Commission, which concluded that the limited hours and gates required a coastal development permit under the California Coastal Act of 1976.

The City filed suit, arguing the Commission lacked jurisdiction over the ordinance because, under the Act, the City’s nuisance abatement powers permitted it to impose limited hours and install gates without a permit. The trial court held (1) that the Commission did not have administrative appellate jurisdiction under section 30625 to consider the three administrative appeals of the Nuisance Abatement Ordinance, and (2) that the Commission did not have jurisdiction under section 30005, subdivision (b), to find that the installation of gates and the limited hours mandated by the ordinance required a coastal development permit.

In a published opinion, City of Dana Point v. California Coastal Commission (2013) 217 Cal.App.4th 170, the Court of Appeal, Fourth District, Division One, also concluded that the commission did not have administrative appellate jurisdiction under section 30625.  It found, however, that the trial court erred in determining that section 30005, subdivision (b), precluded the commission from finding that the development required a permit.  It remanded, directing the trial court to decide whether the City acted within the scope of section 30005, subdivision (b), by determining whether the ordinance was a pretext for avoiding the requirements of the local coastal program.

Cann v. Stefanec, S212520—Review Denied [Kennard, J., voting for review]—September 11, 2013

Plaintiff and appellant Scarlet Cann was injured by a weight dropped by defendant and respondent Annie Stefanec, her teammate on the UCLA swim team, during a mandatory team workout session intended to strengthen the swimmers.  Cann filed an action alleging negligence against Stefanec.  Stefanec successfully moved for summary judgment based on the doctrine of primary assumption of the risk.  In a published opinion, Cann v. Stefanec (2013) 217 Cal.App.4th 462, the Court of Appeal, Second District, Division Five, affirmed, holding the doctrine of primary assumption of the risk barred the negligence claim.  [Full disclosure:  Horvitz & Levy LLP represented defendant Stefanec in this matter.]



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