September 13, 2012

Summary of September 12, 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, September 12, 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 we also note that the Court has stayed briefing in a case pending a decision by the U.S. Supreme Court in a related matter.

Review Granted


Review Denied (with dissenting justices)

Pierce v. Western Surety Company, S204395—Review Denied [Kennard, J. voting for review]—September 12, 2012

The question presented was whether a claimant may recover attorney fees from a surety under Vehicle Code section 11710. The Court of Appeal, Fifth District, held in a published opinion, Pierce v. Western Surety Company (2012) 207 Cal.App.4th 83, that Vehicle Code section 11720 does not authorize awards of attorney fees, but also does not preclude an award of fees under other consumer protection statutes. The Court of Appeal also held that if the surety’s principal would have been liable for attorney fees based on conduct secured by the bond, then the surety is likewise liable for the attorney fees.


Shifren v. Spiro, S203555—Depublished Court of Appeal Opinion—September 12, 2012

The issue was whether, in an attorney malpractice action, actual injury for the purpose of calculating the statute of limitations occurs when the client is required in an underlying proceeding to litigate the validity of a document prepared by the attorney. The Court of Appeal, Second District, held in Shifren v. Spiro (2012) 206 Cal.App.4th 481, that actual injury does not occur until the documents prepared by the attorney are found in the underlying proceeding to be invalid. Until that point, the attorney’s work may have been vindicated and no malpractice would have occurred.

Briefing Stayed Pending U.S. Supreme Court’s Resolution of Related Case

In re Cipro Cases I & II, S198616—Briefing Stayed—September 12, 2012

The question presented is whether an action under the Cartwright Antitrust Act (Bus. & Prof. Code, §16720 et seq.) may be brought to challenge “reverse exclusionary payments” made by pharmaceutical manufacturers to settle patent litigation with generic drug producers and prolong the life of the patents in question. On its own motion, the Court stayed further briefing in this matter pending action by the United States Supreme Court in Merck & Co. v. Louisiana Wholesale Drug Co., No. 12-245, and Upsher-Smith Laboratories, Inc. v. Louisiana Wholesale Drug Co., No. 12-265. For more information, check out the SCOTUSblog’s discussion of Merck here.

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