Author: David Ettinger

Starting tomorrow, I’ll be away until a few days after Labor Day. Horvitz & Levy partner Curt Cutting, the primary writer for the firm’s “California Punitive Damages” blog, will be filling in.  But blogging might be lighter than usual.

Tomorrow morning, the Supreme Court will file its opinions in Rattagan v. Uber Technologies, Inc. and City of Los Angeles v. PricewaterhouseCoopers. (Briefs here; oral argument videos here and here.)

In Rattagan, the court will respond to the Ninth Circuit’s question, “Under California law, are claims for fraudulent concealment exempted from the economic loss rule?” The court agreed in February 2022 to answer the question. Horvitz & Levy filed an amicus brief on behalf of the Chamber of Commerce of the United States of America, supporting the defendant. More about the case here and here.

The Pricewaterhouse opinion is expected to decide whether a court’s authority to impose monetary sanctions for misuse of the discovery process is limited to circumstances expressly delineated in a method-specific provision of the Civil Discovery Act, or whether courts have independent authority to impose monetary sanctions for such discovery misconduct, including under Code of Civil Procedure sections 2023.010 and 2023.030. The case involves a $2,500,000 sanction. Justice Joshua Groban is recused; Fifth District Justice Mark Snauffer is the pro tem in his place. The court granted review in January 2023. More about the case here.

Both case were argued in June and the opinions will leave two undecided cases of the seven from that calendar. Opinions in those last two should file either Monday or next Thursday. After that, there might not be another opinion until November, which is the norm.

The Rattagan and Pricewaterhouse opinions can be viewed tomorrow starting at 10:00 a.m.

In In re Dezi C. and In re Kenneth D., the Supreme Court today resolves two appellate review issues about the federal Indian Child Welfare Act and complementary California statutes (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.). The issues have divided the Courts of Appeal in dependency cases. The legislation, one of the opinions says, “are unique statutory schemes that are intended to protect Native American heritage, cultural connections between tribes and children of Native American ancestry, the best interests of Indian children, and the stability and security of Indian tribes and families.”

Chief Justice Patricia Guerrero signs a separate opinion in both cases, a dissent in Dezi C. and a concurrence in Kenneth D. At least until today, any expressed difference by her with a court’s majority opinion was very unusual. (See: Chief Justice Guerrero’s dissent is a novelty.)

In In re Dezi C., a 5-2 court adopts a strict standard of appellate review when a dependency court or a child welfare agency fails to conduct a required inquiry whether the subject of a case “is or may be an Indian child.” The majority opinion by Justice Kelli Evans holds “an inadequate CalICWA inquiry requires conditional reversal of the juvenile court’s order terminating parental rights with directions to the agency to conduct an adequate inquiry, supported by record documentation.” The court reasons, “When there is an inadequate inquiry and the record is underdeveloped, it is impossible for reviewing courts to assess prejudice because we simply do not know what additional information will be revealed from an adequate inquiry.” The court says its rule “best supports the interests of tribes, which are independently protected by ICWA.”

In dissent, Justice Joshua Groban, joined by the Chief Justice, writes that “the majority’s rule of automatic conditional reversal where there has been a failure to comply with Cal-ICWA, even if the parents disclaim any tribal membership and even if there is little possibility that the child may be Indian, fails to balance the equally important goal of achieving a prompt and stable placement for children in crisis.” The majority responds that children have an important interest not only in “prompt, permanent placement,” but also “in continued connections to their tribes and preserving their culture.”

Justice Groban also emphasizes that the court’s opinion “does not prevent appellate courts from giving substantial deference to a juvenile court’s finding that the inquiry was, in fact, adequate,” an issue the majority doesn’t decide. (The court’s opinion disclaims a determination of “what constitutes an adequate and proper inquiry.”) Justices Carol Corrigan and Leondra Kruger both sign the court’s opinion, but they issue a separate concurrence, authored by Justice Kruger, to agree with the second part of Justice Groban’s dissent. Justice Kruger writes that “Cal-ICWA does not, as some have assumed, require the juvenile court to leave no stone unturned in an ‘ “open-ended universe of stones,” ’ thereby creating ever-widening circles of mandatory inquiry.”

The court’s In re Kenneth D. opinion by Justice Corrigan holds that, when there’s been an inadequate inquiry, “absent exceptional circumstances, a reviewing court may not generally consider postjudgment evidence to conclude the error was harmless. The sufficiency of an ICWA inquiry must generally be determined by the juvenile court in the first instance.”

All seven justices sign the opinion, but Justice Groban, with Chief Justice Guerrero, also concurs separately, writing “to make clear that [Code of Civil Procedure] section 909 continues to be a vehicle to admit postjudgment evidence in the appropriate case.” (Link added.) Returning to the main theme of his Dezi C. dissent, he says that a reviewing court’s taking of evidence in an appropriate case “will allow appellate courts to avoid a situation whereby a beneficial, permanent placement for a child is delayed so that the dependency court can engage in needless additional inquiry as to the child’s ICWA status.”

Dezi C. reverses the published opinion of the Second District, Division Two. (See here.) It also disapproves 18 different Court of Appeal opinions. There are a bunch of Dezi C. grant-and-hold cases, most of them with unpublished opinions

Kenneth D. reverses the Third District’s published opinion (see here) and it disapproves two Court of Appeal opinions.

The court still has another ICWA-inquiry case pending. In re Ja.O. is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. (See here.) It’s one more issue that has the Courts of Appeal in disagreement, including one intra-division split in particular. (See here.)

Peter Baker and Zolan Kanno-Youngs have this long piece in today’s New York Times: “A Vice Presidential Learning Curve: How Kamala Harris Picked Her Shots.” It’s subheaded, “As President Biden’s understudy, Ms. Harris did not often get to lead on signature issues. But she found roles to play on abortion rights, gun safety and a Supreme Court appointment.”

The article reports that Vice President Harris “rarely took positions at odds with the president’s, at least not in meetings attended by others, but she made her mark quietly at times.” One of those times was when “[s]he pushed [President Biden] to pick Ketanji Brown Jackson for the Supreme Court when he was getting advice to the contrary.”

The piece elaborates:

“[Harris] was . . . deeply involved in Mr. Biden’s only Supreme Court appointment, interviewing all three finalists and studying their legal records. While she considered Leondra R. Kruger, a California Supreme Court justice, a ‘very sharp lawyer,’ she concluded that the justice might be too cautious for the moment, according to a former White House official.

“J. Michelle Childs, then a district judge, had the support of both [Representative James] Clyburn and Senator Joe Manchin III, then a Democrat from West Virginia, making her the choice of least resistance. But Ms. Harris concluded that Ketanji Brown Jackson, a federal appeals judge, would be the boldest option, the former official and [then White House chief of staff Ron] Klain said. ‘Joe, you may only get one chance to do this as president, and you want to be proud of your legacy here,’ she told Mr. Biden, according to Mr. Klain.”

Then-California Attorney General Harris voted to confirm Kruger’s appointment to the California Supreme Court in 2014. Video of Harris’s interactions with Kruger at the Commission on Judicial Appointments hearing is here.

Related:

“In California, praise for Jackson but lamentations for Kruger”

Profile of Justice Kruger discusses her reticence to grant a rehearing

No shortage of Justice Kruger profiles

On Monday morning, the Supreme Court will file its opinions in In re Dezi C. and In re Kenneth D. (Briefs here and here; oral argument videos here and here.)

The issue in Dezi C. is: What constitutes reversible error when a child welfare agency fails to make the inquiry required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.) concerning a child’s potential Indian ancestry? The court granted review in September 2022. More about the case here.

Kenneth D. is expected to decide whether an appellate court may take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act, and if so, what procedures must be followed. The court granted review in November 2022. More about the case here.

Kenneth D. will be the last opinion for the nine cases that were argued on the late-May calendar. Dezi C. was argued in June and the opinion in that case will leave four undecided cases of the seven from the June calendar. Opinions in those four should file by August 29.

The Dezi C. and Kenneth D. opinions can be viewed Monday starting at 10:00 a.m.

In Stone v. Alameda Health System, the Supreme Court today holds that government employers are exempt from statutes governing meal and rest breaks and the full and timely payment of wages, and they’re not subject to lawsuits under the Labor Code Private Attorneys General Act for civil penalties.

The court’s unanimous opinion by Justice Carol Corrigan finds covered by the exemption “a hospital authority created by a county Board of Supervisors and authorized by the Legislature to manage the county’s public health facilities.” The court rejects the argument that the exemption applies only to public entities “with sovereign governmental powers that would be infringed by application of [the Labor Code provisions].”

Justice Kelli Evans was recused.

The court reverses the First District, Division Five, Court of Appeal published opinion. Also, it disapproves the First District, Division One, opinion in Sargent v. Board of Trustees of California State University (2021) 61 Cal.App.5th 658 and questions some of the reasoning in the Third District’s decision in Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th 499. There was no petition for review in Sargent or Gateway.

In People v. Walker, the Supreme Court today interprets Penal Code section 1385(c), which provides that any of nine “mitigating circumstances . . . weighs greatly in favor of dismissing [an earlier imposed sentence] enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” The proper application of the statutory language had divided the Courts of Appeal.

The court’s opinion by Justice Joshua Groban holds that a superior court is not required to dismiss an enhancement if there is both a mitigating circumstance and no threat to public safety. The court nonetheless states, “the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ”

Justice Carol Corrigan files a concurring opinion. She writes that some of the majority’s phrasing “could be misunderstood to create confusion on the very point we granted review to clarify: whether the statutory language creates a rebuttable presumption in favor of dismissing an enhancement.” Justice Corrigan prefers the majority’s formulation of the rule as, “ ‘[U]ltimately, the court must determine whether dismissal is in furtherance of justice,’ ” and, she adds, “That determination remains in the discretion of the trial court after giving great weight to the presence of mitigating factors.”

The court affirms the Second District, Division Two, Court of Appeal’s partially published opinion, but only as to the bottom line. The court disagrees with the Division Two conclusion that section 1385 “obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement—with the resultingly shorter sentence—would endanger public safety.” But it doesn’t reverse because the superior court had found a danger to public safety and the appellate court ruled the finding was not an abuse of discretion.

The Supreme Court agrees with the Sixth District’s decision in People v. Ortiz (2023) 87 Cal.App.5th 1087, which is a grant-and-hold for today’s opinion.

The Supreme Court today announced that, when it returns to the courtroom next month after its traditional summer oral argument hiatus, it will hear only three cases. Two of them are on our list of old cases.

On Wednesday, September 4, in San Francisco, the court will hear the following cases (with the issue or issues presented as summarized by court staff or limited by the court itself):

California Capital Insurance Company v. Hoehn: (1) Is there a time limitation for filing a motion under Code of Civil Procedure section 473, subdivision (d) to vacate a judgment that is allegedly void based on extrinsic evidence? (2) In the alternative, does an equitable motion to vacate an allegedly void judgment for lack of service require proving intentional bad conduct in order to show extrinsic fraud? The court granted review in January 2023. More about the case here.

Rodriguez v. FCA US, LLC: Is a used vehicle that is still covered by the manufacturer’s express warranty a “new motor vehicle” within the meaning of Civil Code section 1793.22, subdivision (e)(2), which defines “new motor vehicle” as including a “motor vehicle sold with manufacturer’s new car warranty”? The court granted review in July 2022. [Update: Horvitz & Levy is appellate counsel for the defendant.] More about the case here.

North American Title Co. v. Superior Court: (1) Is the requirement that a party seeking to disqualify a trial judge for alleged lack of impartiality file a verified statement of disqualification “at the earliest practicable opportunity” subject to waiver or forfeiture? (2) Did the Court of Appeal err in concluding that the trial judge’s challenged statements did not qualify as expressions of the court’s views on issues pending before it in the proceeding? The court granted review in August 2023. More about the case here.

Briefs for the cases will soon be posted here. The arguments will be live streamed. Opinions in the cases should file by December 2.