At the Supreme Court’s conference yesterday, actions of note included:
- Four-justice concurring statement leaves open future remedies for defendant who made “disastrous decisions” at trial
- Employment timekeeping. The court agreed to hear Camp v. Home Depot U.S.A. The Sixth District Court of Appeal published opinion held an employee might have a claim for unpaid wages where his employer rounded the amount of time he worked for payment purposes even though it recorded his time to the minute. The appellate court said it was following “guidance and direction” by the Supreme Court’s decisions in Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 (see here) and Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58 (see here) and was “reexamin[ing]” the Fourth District, Division One, opinion in See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889. One justice wrote a concurring opinion “to explain why I believe the majority’s decision today is a clear departure from See’s Candy . . . and more fully explain why that departure is appropriate under current California law.” The Supreme Court denied a petition for review and a depublication request in See’s Candy. (Horvitz & Levy filed the answer to the petition in See’s Candy.)
- Economic loss rule. The court granted-and-held Dhital v. Nissan North America, which is now another case waiting for a decision in Rattagan v. Uber Technologies, Inc.. In Rattagan, the court is expected to answer the Ninth Circuit’s question, “Under California law, are claims for fraudulent concealment exempted from the economic loss rule?” The Ninth Circuit described the rule as “a doctrine that prevents a party to a contract from recovering economic damages resulting from breach of contract under tort theories of liability.” The First District, Division Four, published opinion in Dhital held plaintiffs could proceed on their lawsuit concerning an allegedly defective transmission in a used car they had purchased because “the fraudulent inducement exception to the economic loss rule applies.”
- Lemon law. Another grant-and-hold is Figueroa v. FCA US LLC. That case is back-burnered for Niedermeier v. FCA US LLC, which raises the issues (1) Does the statutory restitution remedy under the Song-Beverly Act (Civ. Code, § 1790 et seq.) necessarily include an offset for a trade-in credit? (2) If the amount that a consumer has received in a trade-in transaction must be subtracted from the consumer’s recovery, should that amount be subtracted from the statutory restitution remedy or from the consumer’s total recovery? The Second District, Division Six, published opinion in Figueroa disagreed with the Second District, Division One, published opinion in Niedermeier and held that a truck manufacturer was not entitled to a credit on the judgment against it for the amount of money the plaintiff received when he sold his defective truck that exceeded what he owed on the loan to buy the truck. (Horvitz & Levy filed the petition for review and is appellate counsel for FCA US in Figueroa.) Niedermeier has been fully briefed for more than a year and the court has not yet issued an oral argument letter.
- Covid insurance. The court denied a request to depublish the First District, Division Four, opinion in Amy’s Kitchen, Inc. v. Fireman’s Fund Insurance Co., which said the superior court correctly sustained an insurance carrier’s demurrer, but for the wrong reason, and also held the insured was entitled to amend its complaint to show its claim came within its policy’s “communicable disease event” coverage. The Supreme Court has so far steered clear of Covid insurance cases, but it might take one on soon by agreeing to answer a coverage question posed by the Ninth Circuit in Another Planet Entertainment, LLC v. Vigilant Insurance Company. (See here).
- Criminal case grant-and-holds. There were three criminal case grant-and-holds: one each waiting for decisions in People v. Lynch (see here), People v. Rojas (see here), and Needham v. Superior Court (see here).