September 15, 2011

Summary of September 14, 2011 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 14, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (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 note that the Court has depublished two Court of Appeal decisions in a single conference, which hasn’t happened for almost a year. We also note that Justice Joyce Kennard has dissented from the denial of review in three cases this week, continuing her record of dissenting from the denial of review with much greater frequency than her colleagues.

Review Granted

Sierra Club v. Superior Court, S194708—Review Granted—September 14, 2011

This is an action by an environmental group asserting a right to access without charge a geographic information system database developed by a county. The question presented is whether the California Public Records Act (Gov.Code, § 6250 et seq.) requires a government agency to disclose such a database to any requesting person who pays the cost of duplication.

The Court of Appeal, Fourth District, Division Three, held in a published decision, Sierra Club v. Superior Court (2011) 195 Cal.App.4th 1537, that Government Code section 6254.9 excludes geographic information system databases from the California Public Records Act’s disclosure requirements. Therefore, the county could properly charge a licensing fee for its database.

Review Denied (with dissenting justices)

Ferguson v. Avelo Mortgage, S194764—Review Denied [Kennard, J., voting for review]—September 14, 2011

After a substitute trustee initiated a nonjudicial foreclosure against a homeowner, and an assignee under a deed of trust purchased the house at a trustee sale, the holders of a post-sale quitclaim deed from the homeowner brought a quiet title action. The question presented was whether a party who brings a quiet title action to set aside a trustee sale must plead tender before challenging the legality of the sale.

The Court of Appeal, Second District, Division Four, held in a published decision, Ferguson v. Avelo Mortgage (2011) 195 Cal.App.4th 1618, that: (1) as a matter of first impression, the beneficiary was authorized to initiate foreclosure proceedings and invoke the tender rule; (2) the substitute trustee’s notice of default, issued before the assignee had authority to execute a substitution of trustee, was defective; (3) the defective notice did render the sale invalid; but (4) the holders of the quitclaim deed failed to establish a reasonable probability that their offer to buy the property from the assignee could constitute a tender.

J.O. v. Superior Court (Department of Health & Human Services), S194892—Review Denied [Kennard, J., voting for review]—September 14, 2011

This was a child dependency proceeding in which the juvenile court denied reunification services and set a selection and implementation hearing. The question presented was whether the bypass provisions of Welfare and Institutions Code section 361.5, subdivision (b)(13), apply where the parents have never been offered family reunification services and neither parent was previously a subject of court-ordered treatment.

The Court of Appeal, Third District, denied the parents petition for writ of mandate, holding in a published decision, J.O. v. Superior Court (2011) 197 Cal.App.4th 188, that the reunification services bypass provisions require resistance to substance abuse treatment, but the juvenile court acted within its broad discretion by declining to order reunification services.

Pacific Gas & Electric v. McColm, S195379—Review Denied [Kennard, J., voting for review]—September 14, 2011

The pro per appellant had been previously adjudged a vexatious litigant. (Code Civ. Proc., § 391, et seq.) Under Code of Civil Procedure section 391.7, the presiding justice of the Court of Appeal denied the appellant permission to proceed with her appeal, deeming her notice of appeal inoperative because she had failed to comply with a pre-filing order.


Ferguson v. Avelo Mortgage, S194764—Depublished Court of Appeal Opinion—September 14, 2011

See above.

J.O. v. Superior Court (Department of Health & Human Services), S194892—Depublished Court of Appeal Opinion—September 14, 2011

See above.

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