September 29, 2011

Summary of September 28, 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 28, 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.

Review Granted

Hughes v. Progressive Direct Insurance, S195069—Review Granted & Held­­­—September 28, 2011

The Court granted review and ordered further action deferred pending consideration and disposition of a related issue in Zhang v. Superior Court, S178542. Zhang presents the following issues: (1) can an insured bring a cause of action against its insurer under the Unfair Competition Law, Business and Professions Code section 17200 (the UCL), based on allegations that the insurer misrepresented and falsely advertised that it will promptly and properly pay covered claims when it has no intention of doing so; and (2) does Moradi-Shalal v. Fireman’s Fund Ins. Co. (1988) 46 Cal.3d 287 bar such an action?

In a published decision, Hughes v. Progressive Direct Ins. Co. (2011) 196 Cal.App.4th 754, the Court of Appeal, Second District, Division Seven, held that a violation of Insurance Code section 758.5, which requires an automobile insurer to give notice of the insured’s right to select a repair dealer, can serve as the predicate statutory violation to support a UCL claim.

Santos v. Vitas Healthcare, S195866—Review Granted & Held­­­—September 28, 2011

This is a class action by employees against a healthcare company for alleged wage and hour violations. The Court granted review and ordered further action deferred pending consideration and disposition of a related issue in Brinker Restaurant v. Superior Court, S166350. That case, which has been pending for a considerable period, presents issues concerning the proper interpretation of statutes and regulations governing an employer’s duty to provide meal and rest breaks to hourly workers. By our count, this is the eighth case granted and held pending the decision in Brinker.

Review Denied (with dissenting justices)

Lopez v. City of Los Angeles, S195080—Review Denied [Kennard and Liu, JJ., voting for review]—September 28, 2011

This was a negligence and wrongful death action against a city by a deceased child’s mother. The child was killed by police SWAT officers when they attempted to rescue her from her father, who held her hostage. The question presented was whether the officers breached their duty not to apply deadly force in a negligent and unreasonable manner.

The Court of Appeal, Second District, Division Eight, held in a published decision, Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, that: (1) the officers had probable cause to believe that the child’s father was a danger to the child and had probable cause to shoot at the father; (2) the officers’ act in shooting at the father did not cause any damages; (3) the officers’ conduct in using deadly force in the final assault was objectively reasonable to protect both the child and themselves; and (4) the manner in which the officers used deadly force in the final assault was objectively reasonable.

In re N.M., S195757—Review Denied [Kennard, J., voting for review]—September 28, 2011

This was a child dependency proceeding initiated by a county Health and Human Services Agency. The question presented was whether there was sufficient evidence: (1) to support jurisdictional and dispositional orders of the juvenile court adjudging a child a dependent child under Welfare and Institutions Code section 300, subdivision (a); and (2) to support an order removing the child from parental custody pursuant to Welfare and Institutions Code section 361, subdivision (c)(1).

The Court of Appeal, Fourth District, Division One, held in a published decision, In re N.M. (2011) 197 Cal.App.4th 159, that: (1) the child’s father’s agreement to a negotiated settlement was an implied waiver of his right to appeal the sufficiency of the evidence to support the jurisdictional finding; (2) the evidence was sufficient to support a finding of a substantial risk that the child would suffer serious physical harm inflicted by her father; (3) the evidence was sufficient to support the decision that removal was necessary to protect the child; and (4) the juvenile court did not abuse its discretion in declaring the child a dependent child rather than ordering the agency to provide family maintenance services.

Depublished

None.

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