Procedure Issues Pending In California Supreme Court

USE NOTE: The information in this bulletin, including the framing of the issue presented, is taken from the California Supreme Court’s official website. Citations to the court of appeal's opinion are for informational purposes only. The grant of review automatically vacates the opinion, which cannot be cited as precedent.

Arbitration. May the parties to a commercial arbitration agreement contractually expand the jurisidiction of the trial court to permit review of an arbitration award for legal error? Cable Connection, Inc. v. DIRECTTV, Inc., formerly at 143 Cal.App.4th 207, S147767, rev. granted 12/16/06.

Creditor disclosures. Are the provisions of the Rees-Levering Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) that require a creditor to include certain disclosures in a notice of intent to dispose of a vehicle after it has been repossessed and that condition the creditor’s right to seek a deficiency judgment on compliance with these requirements (Civ. Code, § 2983.2), preempted by the federal Home Owners’ Loan Act (12 U.S.C. § 1461 et seq.) when the creditor is a federally chartered savings institution? WFS Financial, Inc. v. Superior Court, 140 Cal.App.4th 37, S145304, review granted 9/20/06.

Internal affairs doctrine, derivative actions. Does standing to bring a shareholder's derivative action involve the corporation's internal affairs, and is therefore governed by the company's state of incorporation? If not, did plaintiff retain standing under California law even though he lost his shares while the action was pending. I.e., does California, like Delaware, require standing throughout the litigation? Grosset v. Wenaas, S1139285, formerly at 133 Cal.App.4th 710, review granted 1/4/06.

Personal jurisdiction. In an action to recover a painting allegedly stolen by Nazis during World War II, does California have personal jurisdiction over an Illinois resident, who is the current owner of the painting, when the painting was in a Los Angeles art gallery for eight months before being abruptly shipped back to Chicago immediately after the action was filed? Bennigson v. Alsdorf, S124828, unpublished opinion, review granted 7/28/04.

Litigation privilege. (a) Are actions taken to collect a judgment, such as obtaining a writ of execution and levying on property, protected by the litigation privilege as communications in the course of a judicial proceeding? (b) Is an abuse of process claim based on the filing of an allegedly false declaration of service barred by the litigation privilege because the claim is necessarily founded on a communicative act? Rusheen v. Cohen, S123203, unpublished opinion, review granted 5/12/04. Held: protected; the gravamen was defendant's submission of allegedly false declarations to obtain the writ of execution, an essentially communicative act.

Vexatious litigant. In assessing whether a vexatious litigant has failed to demonstrate a reasonable probability of success on the claim and should furnish security before proceeding (see CCP § 391.3), may the trial court weigh plaintiff’s evidence, or instead assume all facts alleged in the complaint are true and determine only if plaintiff’s claim is foreclosed as a matter of law? Moran v. Murtaugh, Miller, Meyer & Nelson, S132191, formerly at 126 Cal.App.4th 323, mod. 126 Cal.App.4th 1364e, review granted 5/18/05.

Expert opinion. Does Cal. Evidence Code § 801(b) permit a trial court to review the evidence an expert relied upon in reaching his or her conclusions to determine if that evidence provides a reasonable basis for the expert’s opinion? Lockheed Litigation Cases, S132167. formerly at 126 Cal.App.4th 271, review granted 4/13/05.

Section 998 expert fees. May an award of expert witness fees under CCP § 998(c)(1), include fees incurred before the offer to compromise was made, or is it limited to fees incurred after the offer date? Regency Outdoor Advertising, Inc. v. City of Los Angeles, S132619, formerly at 126 Cal.App.4th 1281, review granted 5/11/05.

Qui tam. Is a public entity a “person” within the meaning of the False Claims Act, and thus entitled to bring a qui tam cause of action on behalf of the state or another public entity, against a defendant for allegedly obtaining payments to which the defendant was not entitled? State of California ex rel. Harris v. PricewaterhouseCoopers LLP, S131807, formerly at 125 Cal.App.4th 1219, review granted 5/11/05.

Special child abuse statute of limitations, government tort claims. Cal. CCP § 340.1 provides that the time to file a damages action for childhood sexual abuse is: within three years of the date plaintiff discovers, or reasonably should have discovered, that psychological injury occurring after majority was caused by the abuse. Does this section extend the time limit for presenting a damages claim against a public entity under the Government Tort Claims Act? Shirk v. Vista Unified School Dist., S133687, formerly at 128 Cal.App.4th 156; review granted 6/22/05.

New trial motion. If the trial court fails to specify its reasons for granting a new trial (see Cal. CCP § 657), is the trial court’s order granting a new trial reviewed on appeal under the abuse of discretion standard or is it subject to independent review? Oakland Raiders v. National Football League, S132814, formerly at 126 Cal.App.4th 1497, review granted 6/8/05.

In October, 2006, the court ordered supplemental briefing in the Oakland Raiders case: 1) Should the court reconsider Mercer v. Perez (1968) 68 Cal.2d 104, to the extent Mercer bars an appellate court from remanding a case to a trial court to allow the trial court to file a statement of reasons in support of its order granting a new trial? (2) Should the court reconsider Treber v. Superior Court (1968) 68 Cal.2d 128, to the extent it bars an appellate court from issuing a writ to compel a trial court to file a statement of reasons in support of its order granting a new trial?