September 27, 2013
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 25, 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, we note the Court has denied review (over the dissent of two justices) but has ordered the Court of Appeal opinion depublished. This is the second time in a little more than two months that the Court has chosen to depublish a Court of Appeal opinion when one or more justices has voted for review (see our Conference Report for July 17 for the last time the Court issued such an order).
Review Denied (with dissenting justices)
Schaefer v. Elder (Castlepoint National Insurance Company), S212053—Review Denied [Kennard and Chin, JJ., voting for review] & Opinion Decertified—September 25, 2013
The plaintiff contracted with the defendant contractor to design and build a residence. He brought suit alleging several causes of action, including breach of contract, negligence, and breach of implied warranty. The defendant’s insurer appointed the law firm of its choice to defend the suit, subject to a reservation of rights. The insurer also filed a separate declaratory relief action against the defendant to determine the extent of coverage under the policy. The defendant then hired independent counsel and moved to disqualify the insurance company’s counsel and to determine the defendant’s right to independent counsel.
The questions presented for review were: (1) whether the insured defendant was entitled to independent counsel; and (2) whether the trial court erred by disqualifying counsel who had represented both the insured and the insurer?
In a published opinion, Schaefer v. Elder (2013) 217 Cal.App.4th 1, the Third District Court of Appeal held: (1) a conflict of interest arose because of an exception to coverage for work performed by independent contractors, and thus appointment of independent counsel was required; and (2) the firm representing the insured was properly disqualified from representing the insurer.
The Supreme Court denied the petition for review and directed the Reporter of Decisions to not publish the opinion in the Official Appellate Reports. Justices Kennard and Chin were of the opinion that review should be granted.
Order of Publication
420 Caregivers v. City of Los Angeles, S204684—Partial Republication Granted—September 25, 2013
The Supreme Court previously granted review of the Court of Appeal’s [Second District, Division Eight] decision in 420 Caregivers v. City of Los Angeles (2012) 207 Cal.App.4th 703 (420 Caregivers), but deferred briefing pending the Supreme Court’s decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729 (City of Riverside). The grant of review automatically depublished the Court of Appeal’s opinion in 420 Caregivers.
Following its May 2013 decision in City of Riverside, the Supreme Court dismissed review in 420 Caregivers. At the request of the Los Angeles City Attorney, the Supreme Court ordered partial republication of the Court of Appeal’s opinion in 420 Caregivers. Specifically, the Supreme Court ordered all portions of the opinion republished with the exception of Part III of the “Discussion” section, entitled “Preemption by State Law.” The Supreme Court’s decision in City of Riverside superseded that portion of the opinion.