Wednesday, August 24, 2005
Tuesday, August 23, 2005
Tina Imre Biography
Tina Imre is a partner and head of the Los Angeles Appellate Department of Sedgwick, Detert, Moran & Arnold LLP. An appellate strategist, she specializes in representing corporate defendants in cases presenting institutional issues and punitive damages. But her practice isn't limited to appellate and supreme courts. She frequently consults during trial of complex matters, helping to craft legal arguments, properly posture the case and preserve the record for appeal. A recognized expert on punitive damages and high-exposure appeals, she is regularly interviewed and quoted by the national media.
In the last few years, Ms. Imre has
In the last few years, Ms. Imre has
- eliminated over half a billion dollars in verdicts against her clients
- handled or consulted on cases in California, Alaska, Arizona, Illinois, Kentucky, Nevada, New York, Ohio, Utah, Pennsylvania, New Mexico and Texas
- been involved in 500 appeals and has dozens of published opinions on punitive damages, constitutional issues, insurance , class actions, mass or complex torts.
RECENT REPRESENTATIVE CLIENTS.
Selected as appellate counsel for: Goodrich v. Aetna, appeal from the largest judgment ever entered nationwide against an HMO; for the Catholic Church in coordinated punitive damages cases; appeal from a 200-plaintiff construction defect case
PUBLICATIONS. - 100-page monograph on punitive damages after State Farm v. Campbell, available at wlf.org
- writes a monthly column on the California Supreme Court
- wrote three chapters of a major treatise on appellate practice,
- contributing editor (six chapters) to the leading treatise on California Insurance Law,
- numerous monographs and articles on punitive damages, insurance and appellate advocacy
RECENT LECTURES: Punitive Damages, Insurance, Appellate.
- American Conference Institute (San Francisco and Miami);
- Association of California Insurance Companies (Las Vegas);
- Insurance Brokers & Agents of the West (Hawaii);
- Cal. Continuing Education of the Bar (Los Angeles, Orange County);
- Private insurer organizations (Continental U.S. & Bermuda)
- Rutter Group (San Francisco)
SOME RECENT HONORS/AWARDS.
- Voted by her peers a “Southern California Super Lawyer” for 2004 and 2005 by Los Angeles Magazine & Journal for Law & Politics
- Named one of the “50 Most Powerful Women in Los Angeles Law” by the Los Angeles Business Journal
- Fellow, California Academy of Appellate Lawyers
- CEB Board of Governors and Advisory Committee
EVALUATING YOUR APPEAL
A. What An Appeal Can - And Can't - Do. An appeal is a powerful, often underestimated, line of defense. It's an opportunity to reduce the award, obtain a complete or partial new trial, or perhaps even reverse misfortune, getting judgment awarded in favor of the party who lost at trial.
However, the appeal is not an opportunity to retry the case. Appellate courts don't reweigh evidence, fact findings or witness credibility. They look for prejudicial legal error - error that deprived the losing party of a fair trial. With some exceptions, issues and arguments not raised or waived in the trial court usually will not be available to attack a verdict on appeal.
B. Potential Arguments. The appeal may challenge the judgment in a variety of ways, depending on the case, e.g.:
* attacking the verdict's legal underpinnings – arguing lack of standing, no tort as a matter of law, etc.
* contending there is insufficient evidence to support the legal basis of liability or, e.g., a punitive damage verdict
* challenging the amount of compensatory or or punitive damages as excessive under state or federal law
* contesting how the case was tried, including evidentiary or instructional errors
* other error, such attorney or jury misconduct, juror bias, and the like
C. Possible Outcomes On Appeal. The type of appellate argument raised controls the potential result. For example:
* if appellant proves there is no contract liability in a tortious breach of contract case, the appellate court likely will reverse with directions to enter judgment in defendant's favor
* if the court of appeal finds there is no tort as a matter of law in an insurance bad faith case, it should allow the judgment for contract damages (policy benefits) to stand, but reverse the tort and punitive awards with directions
* if the opinion decides prejudicial errors were committed in the taking of evidence or jury instructions, it may order a complete retrial, or a partial one, depending on the type of error and when during the trial it occurred
* the court may outright reduce or eliminate the damage award on its own, or remand to the trial court for further determinations
D. Strategic Considerations On Appeal.
Obtaining a new trial. Can be a mixed blessing. Certainly things go back to square one, but the defendant again faces the risk of an adverse judgment, perhaps even a larger one.
Could there be a a published opinion? Defendants contemplating appeal should also consider the possibility of a published appellate court opinion. Could this help, or harm, its position in other cases? Though unpublished decisions have no value as precedent in many jurisdictions, other courts could treat them as having binding collateral estoppel or res judicata effect. An unfavorable published - or even unpublished - opinion may alert other potential plaintiffs and spur them into legal action.
- Preparing the record on appeal. The appellant must pay for preparing the Reporter's Transcript of the trial and the appendix of trial court documents. In lengthy trials, this can be significant. If the appellant wins on appeal, these costs may be recoverable.
- Interest runs on the judgment. In many states interest runs on a money judgment at a fixed rate (e.g., California 10% simple interest.) Interest in federal court is calculated under a complex formula geared to the auction price of Treasury Bills at the time the verdict was rendered. Depending on the court and size of the case, an appeal can take months, or years.
- Costs on appeal. In most courts, the prevailing party on appeal is entitled to appellate costs.
E. Why An Appellate Specialist?
The defense lawyer, who's lived the case, is intimately familiar with every detail. That very strength can be a weakness on appeal. The reviewing court, seeing the case for the first time, lacks this microscopic mastery of the details, and considers only matters in the record and preserved (or not waived) below.
An appellate specialist brings not only expertise in the procedural complexities of post-trial and appellate practice, but objectivity to evaluating whether to appeal, what issues to raise and how to frame them. They speak the court of appeal's language, a language very different from the lower court. One looks for legal error and significant legal issues. The other applies the law to resolve disputed fact questions. A seasoned appellate practitioner knows the difference, the court's history, background and predelictions. They are specially trained in legal analysis. Persuasive, cogent, organized writing is their metier.
“[T]rial attorneys who prosecute their own appeals . . . may have `tunnel vision.’ Having tried the case themselves, they have become convinced of the merits of the claim. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.
Experienced, savvy appellate counsel are valuable not only on appeal, but during, and even before, trial or judgment. Their creative legal thinking may help to identify new issues or new approaches to old ones, draft dispositive motions, review and edit trial briefs, provide creative ideas about new jury instructions, and help preserve the record for appeal.
Why File A Post-Trial Motion?
1. Snatch victory from the jaws of defeat. A new trial motion gives the trial judge a chance to cut the jury's punitive verdict, eliminate it altogether, or grant a new trial. A successful motion for judgment notwithstanding the verdict (JNOV) – known as JMOL in federal court - lets the trial judge declare the party who lost at trial the winner. These motions can be powerful tools for defendants, particularly useful in cases of large punitive awards. The trial judge has considerable power to reduce an excessive verdict or order a new trial.
2. Preserve issues/avoid waiver for appeal. In many states, a defendant who lost at trial must raise certain issues by way of a post-trial motion in order to preserve the right to raise that issue on appeal. That is increasingly true of punitive damage verdicts the defendant believes are excessive under federal constitutional law. A growing number of courts around the country are concluding that an excessiveness challenge may only be raised on appeal if the defendant has first filed a new trial motion on that ground.
3. Create a record for appeal. The cardinal rule of appellate practice is: if it's not in the record, it doesn't count. (See Ch. 2A, Imre & Schiavelli, Preserving the Record for Appeal, California Civil Appellate Prcatice (CEB 2005). Often, filing a post-trial motion is the only way to get a critical fact, issue or error into the record. Otherwise, the appellate court probably won't not consider it, even if it wanted to.
4. Strategic advantages. Defendant’s settlement leverage is usually at its lowest point just after the jury has rendered a large verdict. Many plaintiffs consider a judgment, however exorbitant, to be “money in the bank.” Strong, tightly-constructed post-trial motions can help bring the opponent back down to earth, forcing plaintiffs’ counsel to confront the weaknesses in his or her case. And often, a post-trial motion serves a secondary strategic purpose: to get a preview of plaintiff’s arguments on appeal. This can provide a distinct tactical advantage when it comes to preparing the first appellate brief.
2. Preserve issues/avoid waiver for appeal. In many states, a defendant who lost at trial must raise certain issues by way of a post-trial motion in order to preserve the right to raise that issue on appeal. That is increasingly true of punitive damage verdicts the defendant believes are excessive under federal constitutional law. A growing number of courts around the country are concluding that an excessiveness challenge may only be raised on appeal if the defendant has first filed a new trial motion on that ground.
3. Create a record for appeal. The cardinal rule of appellate practice is: if it's not in the record, it doesn't count. (See Ch. 2A, Imre & Schiavelli, Preserving the Record for Appeal, California Civil Appellate Prcatice (CEB 2005). Often, filing a post-trial motion is the only way to get a critical fact, issue or error into the record. Otherwise, the appellate court probably won't not consider it, even if it wanted to.
4. Strategic advantages. Defendant’s settlement leverage is usually at its lowest point just after the jury has rendered a large verdict. Many plaintiffs consider a judgment, however exorbitant, to be “money in the bank.” Strong, tightly-constructed post-trial motions can help bring the opponent back down to earth, forcing plaintiffs’ counsel to confront the weaknesses in his or her case. And often, a post-trial motion serves a secondary strategic purpose: to get a preview of plaintiff’s arguments on appeal. This can provide a distinct tactical advantage when it comes to preparing the first appellate brief.
WHAT TO DO WHEN JUDGMENT IS ENTERED AGAINST YOU
STAY ENFORCEMENT OF THE JUDGMENT. After the jury renders its verdict, there are still many lines of defense available, including post-trial motions and appeal. First and foremost, the defendant must protect itself from immediate execution of the judgment, which, in many jurisdictions is enforceable immediately or within a very short time. A stay may be available by stipulation, court order or, as a last resort, filing an appeal bond. Don't delay. Time is short and the clock is ticking.
OBTAIN AN INVESTIGATOR. To help evaluate what issues to raise in a new trial motion, jurors should be interviewed as soon as possible. Defendant typically has a short period of time to identify possible new trial issues -such as juror misconduct - and obtain the supporting juror declarations. Thus, the investigator should be lined up and ready to proceed at the earliest possible time. Trial or appellate counsel should supervise the investigation closely, directing the activities, and personally draft any declarations needed. All declarations must be in proper evidentiary form and follow the state's particular requirements concerning what evidence qualifies to impeach a verdict. (See, e.g., Cal. Evid., Code, §1150; see also Krouse v. Graham (1977) 19 Cal.3d 59.)
DECIDE AND MOVE QUICKLY ON MOTIONS. The deadlines for filing new trial and JNOV motions are short, critical and complicated. That means the decision whether to proceed - and what issues to raise - must be made as soon as possible. Sometimes, to preserve an issue for appeal, a new trial or other motion MUST be made.
FIELDING PRESS CALLS. Anyone involved on behalf of the losing party should be briefed on the proper handling of press inquiries, including the potential legal significance of responses. Ideally, all questions should be referred to defendant’s public relations office or the attorney handling the new trial motion. They should work together and communicate frequently. Exercise caution in answering questions, issuing statements and granting interviews. Remarks should be cleared with counsel first, especially while post-trial motions are pending or contemplated. Keep in mind that the trial judge still has the power to grant significant relief.
OBTAIN AN INVESTIGATOR. To help evaluate what issues to raise in a new trial motion, jurors should be interviewed as soon as possible. Defendant typically has a short period of time to identify possible new trial issues -such as juror misconduct - and obtain the supporting juror declarations. Thus, the investigator should be lined up and ready to proceed at the earliest possible time. Trial or appellate counsel should supervise the investigation closely, directing the activities, and personally draft any declarations needed. All declarations must be in proper evidentiary form and follow the state's particular requirements concerning what evidence qualifies to impeach a verdict. (See, e.g., Cal. Evid., Code, §1150; see also Krouse v. Graham (1977) 19 Cal.3d 59.)
DECIDE AND MOVE QUICKLY ON MOTIONS. The deadlines for filing new trial and JNOV motions are short, critical and complicated. That means the decision whether to proceed - and what issues to raise - must be made as soon as possible. Sometimes, to preserve an issue for appeal, a new trial or other motion MUST be made.
FIELDING PRESS CALLS. Anyone involved on behalf of the losing party should be briefed on the proper handling of press inquiries, including the potential legal significance of responses. Ideally, all questions should be referred to defendant’s public relations office or the attorney handling the new trial motion. They should work together and communicate frequently. Exercise caution in answering questions, issuing statements and granting interviews. Remarks should be cleared with counsel first, especially while post-trial motions are pending or contemplated. Keep in mind that the trial judge still has the power to grant significant relief.
Torts/Products 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.
Prop. 64 & class actions. (1) To bring a class action under Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), as amended by Proposition 64, must every member of the proposed class have suffered “injury in fact,” or is it sufficient that the class representative comply with that requirement? (2) In a class action based on a manufacturer’s misrepresentation of a product, must every member of the class have actually relied on the manufacturer’s representations? In re Tobacco II Cases, formerly at 142 Cal.App.4th 891, No. S147345, rev. granted 11/1/06. Also: court granted review on a hold for same issue: Pfizer, Inc. v. Superior Court, formerly at 141 Cal.App.4th 290, No. S145775.
Primary assumption of risk. Does the doctrine of primary assumption of the risk apply when defendant hits a golf ball from the tee without ascertaining the location of another golfer in his party and the ball struck and injured the other golfer? Shin v. Ahn, 141 Cal.App.4th 726, No. S146114, rev. granted 10/25/06.
Cell Providers versus Local Regulation. (1) Do the statutes that give “telephone corporations” the right to erect lines and other necessary fixtures in the public right-of-way (Pub. Util. Code §§ 7901, 7901.1) apply to wireless telecommunications providers? (2) Does section 7901.1 (a) - which gives local governments the right to control the “time, place and manner in which roads . . . are accessed” - permit a county ordinance to regulate the aesthetics of cellular towers erected in the public right-of-way? Sprint Telephony PCS, L.P. v. County of San Diego, S145541, 140 Cal.App.4th 748, review granted 9/13/06.
Is Rees-Levering Preempted? The Rees-Levering Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) requires a creditor to include certain disclosures in a notice of intent to dispose of a vehicle after it has been repossessed; the creditor’s right to seek a deficiency judgment is conditioned on compliance with these requirements. Are the Rees-Levering provisions 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, S145304, formerly at 140 Cal.App.4th 637, review granted 9/20/06. Dismissed.
Public entity/dangerous condition liability. (1) Is a public entity liable under the Tort Claims Act for an injury caused by a dangerous condition on the public entity’s property only if it acted negligently or wrongfully, or is it sufficient that the public entity created the dangerous condition? (2) Who bears the burden of proof? Is the reasonableness of the public entity’s conduct in creating the condition an element of the plaintiff’s claim, such that plaintiff bears the burden of proof, or is it an affirmative defense on which the public entity bears the burden of proof? Metcalf v. County of San Joaquin, S144831, formerly at 139 Cal.App.4th 969, review granted 9/20/06.
Repair and abate. (1) Does appointment of a receiver for a substandard building under Health & Safety Code § 17980.7(c) require service of an “order or notice to repair or abate” on the property owner? (2) Is substantial compliance with the requirement of first serving a § 17980.6 order or notice to repair or abate sufficient to permit appointment of a receiver? (3) Did the trial court abuse its discretion in approving the receiver’s recommendation to demolish the residence where the owner objected and there was ample equity in the property to pay an independent contractor to correct all code violations? City of Santa Monica v. Gonzalez, S145571, 140 Cal.App.4th 1134, review granted 9/13/06.
Public entity liability for § 1983 Violations. Can a municipality be held liable for damages under the federal Civil Rights Act (42 U.S.C. § 1983) for obtaining a preliminary injunction to enforce an ordinance that is later found invalid as an unconstitutional impingement on First Amendment free speech rights? Manta Management Corp. v. City of San Bernardino, S144492, formerly at 139 Cal.App.4th 447, mod. 139 Cal.App.4th 1209b, review granted 8/30/06.
Prop. 64 & class actions. (1) To bring a class action under Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.), as amended by Proposition 64, must every member of the proposed class have suffered “injury in fact,” or is it sufficient that the class representative comply with that requirement? (2) In a class action based on a manufacturer’s misrepresentation of a product, must every member of the class have actually relied on the manufacturer’s representations? In re Tobacco II Cases, formerly at 142 Cal.App.4th 891, No. S147345, rev. granted 11/1/06. Also: court granted review on a hold for same issue: Pfizer, Inc. v. Superior Court, formerly at 141 Cal.App.4th 290, No. S145775.
Primary assumption of risk. Does the doctrine of primary assumption of the risk apply when defendant hits a golf ball from the tee without ascertaining the location of another golfer in his party and the ball struck and injured the other golfer? Shin v. Ahn, 141 Cal.App.4th 726, No. S146114, rev. granted 10/25/06.
Cell Providers versus Local Regulation. (1) Do the statutes that give “telephone corporations” the right to erect lines and other necessary fixtures in the public right-of-way (Pub. Util. Code §§ 7901, 7901.1) apply to wireless telecommunications providers? (2) Does section 7901.1 (a) - which gives local governments the right to control the “time, place and manner in which roads . . . are accessed” - permit a county ordinance to regulate the aesthetics of cellular towers erected in the public right-of-way? Sprint Telephony PCS, L.P. v. County of San Diego, S145541, 140 Cal.App.4th 748, review granted 9/13/06.
Is Rees-Levering Preempted? The Rees-Levering Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) requires a creditor to include certain disclosures in a notice of intent to dispose of a vehicle after it has been repossessed; the creditor’s right to seek a deficiency judgment is conditioned on compliance with these requirements. Are the Rees-Levering provisions 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, S145304, formerly at 140 Cal.App.4th 637, review granted 9/20/06. Dismissed.
Public entity/dangerous condition liability. (1) Is a public entity liable under the Tort Claims Act for an injury caused by a dangerous condition on the public entity’s property only if it acted negligently or wrongfully, or is it sufficient that the public entity created the dangerous condition? (2) Who bears the burden of proof? Is the reasonableness of the public entity’s conduct in creating the condition an element of the plaintiff’s claim, such that plaintiff bears the burden of proof, or is it an affirmative defense on which the public entity bears the burden of proof? Metcalf v. County of San Joaquin, S144831, formerly at 139 Cal.App.4th 969, review granted 9/20/06.
Repair and abate. (1) Does appointment of a receiver for a substandard building under Health & Safety Code § 17980.7(c) require service of an “order or notice to repair or abate” on the property owner? (2) Is substantial compliance with the requirement of first serving a § 17980.6 order or notice to repair or abate sufficient to permit appointment of a receiver? (3) Did the trial court abuse its discretion in approving the receiver’s recommendation to demolish the residence where the owner objected and there was ample equity in the property to pay an independent contractor to correct all code violations? City of Santa Monica v. Gonzalez, S145571, 140 Cal.App.4th 1134, review granted 9/13/06.
Public entity liability for § 1983 Violations. Can a municipality be held liable for damages under the federal Civil Rights Act (42 U.S.C. § 1983) for obtaining a preliminary injunction to enforce an ordinance that is later found invalid as an unconstitutional impingement on First Amendment free speech rights? Manta Management Corp. v. City of San Bernardino, S144492, formerly at 139 Cal.App.4th 447, mod. 139 Cal.App.4th 1209b, review granted 8/30/06.
Fraudulent wire transfers/banking. (1) Under the UCC (Cal. U. Comm. Code, § 11101 et seq.), does an accountholder’s notification to a bank that wire transfers were “unauthorized” satisfy the statutory requirement that an accountholder “object to the payment” for purposes of allocating loss between the accountholder and the bank when a fraudulent wire transfer is made? (2) Are an accountholder’s common law tort and contract claims against a bank arising out of fraudulent payment orders for wire transfers preempted by the provisions of Division 11? Zengen, Inc. v. Comerica Bank, S142947, formerly at 137 Cal.App.4th 861, review granted 7/12/06.
Pleading requirements, child abuse revival statute. Plaintiffs filed suit against the City of Los Angeles and Boy Scouts of America for sexual abuse by a city police officer while they participated in police department Explorer program in the 1970’s. Issue: are their claims barred by the statute of limitations, or did they sufficiently invoke CCP 340.1 (b)(2), which permits the revival of certain claims of sexual abuse that would otherwise be barred where the defendant “knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person”? Doe v. City of Los Angeles, S142546, formerly at 137 Cal.App.4th 438, review granted 6/21/06.
Physician/patient rights. Whether a doctor has a constitutional right, to refuse on religious grounds, to perform a medical procedure because of the patient's sexual orientation, or does the Unruh Act (Civil Code section 51) preclude such discrimination in the provision of medical services despite the doctor's religious beliefs? North Coast Women's Care Med. Group, Inc. v. Superior Court S142892, formerly at 137 Cal.App.4th 781, review granted 6/14/06.
Litigation privilege. Does California's litigation privilege, Civil Code section 47(b), bar a cause of action under the state constitution for invasion of privacy? Jacob B. v. County of Shasta, S142496, formerly at 137 Cal.App.4th 225, review granted 6/14/06.
Public agency release. Can a public agency's release of liability for recreational activities be effective as to ordinary negligence under Civil Code section 1668, as interpreted by Tunkel v. University of California (1963) 60 Cal.2d 92, but not be effective as to gross negligence? City of Santa Barbara v. Superior Court, S141643, formerly at 135 Cal.App.4th 1345, review granted 4/12/06.
Auditor liability. An auditor uncovers apparent fraud by a general partner in the course of auditing a limited partnership. May the auditor be held liable to limited partners on the theory that he aided and abetted the fraud by not issuing a report after the general partner terminates the audit? Frame v. PricewatershouseCoopers, LLP, S139410, formerly at 134 Cal.App.4th 396, mod. 134 Cal.App.4th 1394a, review granted 3/22/06. Review dismissed after settlement, Sept. 2006.
Government Tort Claims Act - applicable to contract claims? . Must a claim be presented under the Government Claims Act (Cal. Gov. Code, § 810 et seq.) before bringing an action against a public entity for breach of contract? City of Stockton v. Superior Court, S139237, formerly at 133 Cal.App.4th 1052m, review granted 2/1/06.
Products - sophisticated user. The "sophisticated user" doctrine bars manufacturer liability for failure to warn of a product risk that a sophisticated user should have recognized. (1) Does the doctrine apply in California? (2) If so, does it apply to strict liability causes of action, and who qualifies as a "sophisticated user?" Johnson v. American Standard, Inc., S139206, 133 Cal.App.4th 496, review granted 1/4/06.
Landowner liability for third party's criminal act. May the proprietor of a mobile home park be required to provide security guards or take other security measures to prevent gang-related violence on the premises? Castaneda v. Olsher, S138104, formerly at 132 Cal.App.4th 627, review granted 1/4/06.
Implied warranty. (a) Can the implied warranty of quality and fitness applicable to new homes be waived? (b) If so, was the implied warranty disclaimer at issue nonetheless unenforceable either because: it was not sufficiently conspicuous or because it was unconscionable? Hicks v. Superior Court, S123054, formerly at 115 Cal.App.4th 77, review granted 5/12/04. REVIEW DISMISSED 2/1/06 - CASE SETTLED.
Tobacco/preemption. Does the Federal Cigarette Labeling and Advertising Act preempt claims under the Unfair Competition Law for advertising that allegedly targeted minors? In re Tobacco Cases II, S12952, formerly at 123 Cal.App.4th 617, review granted 2/16/05.
Tobacco/limitation of actions. “(1) For the purpose of the statute of limitations period applicable under California law to a personal injury action alleging injury arising from smoking tobacco, are persons presumed to have been aware by 1988 that smoking causes addiction and other health problems? If California recognizes such a presumption, is it rebuttable and if so, when? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does addiction constitute an injury causing all related claims to accrue at the time the plaintiff recognizes that he or she is addicted to tobacco, even if the plaintiff has not yet been diagnosed with an illness stemming from tobacco use?” Grisham v. Philip Morris U.S.A., S132772, certified question from 9th Circuit (see 403 F.3d 631), granted 8/10/05.
Products - sophisticated user. The "sophisticated user" doctrine bars manufacturer liability for failure to warn of a product risk that a sophisticated user should have recognized. (1) Does the doctrine apply in California? (2) If so, does it apply to strict liability causes of action, and who qualifies as a "sophisticated user?" Johnson v. American Standard, Inc., S139206, 133 Cal.App.4th 496, review granted 1/4/06.
Landowner liability for third party's criminal act. May the proprietor of a mobile home park be required to provide security guards or take other security measures to prevent gang-related violence on the premises? Castaneda v. Olsher, S138104, formerly at 132 Cal.App.4th 627, review granted 1/4/06.
Implied warranty. (a) Can the implied warranty of quality and fitness applicable to new homes be waived? (b) If so, was the implied warranty disclaimer at issue nonetheless unenforceable either because: it was not sufficiently conspicuous or because it was unconscionable? Hicks v. Superior Court, S123054, formerly at 115 Cal.App.4th 77, review granted 5/12/04. REVIEW DISMISSED 2/1/06 - CASE SETTLED.
Tobacco/preemption. Does the Federal Cigarette Labeling and Advertising Act preempt claims under the Unfair Competition Law for advertising that allegedly targeted minors? In re Tobacco Cases II, S12952, formerly at 123 Cal.App.4th 617, review granted 2/16/05.
Tobacco/limitation of actions. “(1) For the purpose of the statute of limitations period applicable under California law to a personal injury action alleging injury arising from smoking tobacco, are persons presumed to have been aware by 1988 that smoking causes addiction and other health problems? If California recognizes such a presumption, is it rebuttable and if so, when? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does addiction constitute an injury causing all related claims to accrue at the time the plaintiff recognizes that he or she is addicted to tobacco, even if the plaintiff has not yet been diagnosed with an illness stemming from tobacco use?” Grisham v. Philip Morris U.S.A., S132772, certified question from 9th Circuit (see 403 F.3d 631), granted 8/10/05.
Tobacco/punitive damages. Grant & hold in Bullock v. Philip Morris - re $30 million punitive award - on constitutionality of punitive damages (ratio and punishment for conduct toward non-plaintiffs). Briefing deferred pending decision in Philip Morris v. Williams, cert granted.
Defamation, statute of limitations publication. When a publication containing a defamatory statement is available to the public but has very limited distribution, does the statute of limitations on a defamation cause of action begin to run at the time of the first general distribution (the “single publication rule”) or when the allegedly defamatory statement is or reasonably should have been discovered (the “discovery rule”)? Hebrew Academy of San Francisco v. Goldman, S134873, formerly at 129 Cal.App.4th 391, review granted 8/24/05.
Defamation & free speech. When a trial court has found that defendant in a defamation action has made repeated false defamatory statements against plaintiff and pecuniary compensation would not afford adequate relief in the event of future repeated statements, may the trial court enjoin defendant from continuing to make the same defamatory statements to third parties, or is such an injunction an unconstitutional prior restraint on speech? The court ordered briefing deferred pending the decision of the United States Supreme Court in Tory v.Cochran (Oct. 29, 2003, [nonpub. opn.]), certiorari granted September 28, 2004, No. 03-1488, __ U.S. __ [125 S.Ct. 26, 159 L.Ed.2d 856]. Balboa Island Village Inn, Inc. v. Lemen, S127904, formerly at 121 Cal.App.4th 583, grant & hold review granted 12/15/04.
Patent royalties & fiduciary duty. When an inventor or researcher entrusts a new discovery to another under a contract where the other party will develop, patent, and commercially exploit discovery in exchange for royalties, does a fiduciary relationship arise between the parties, a breach of which may support tort, and in an appropriate case punitive, damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract and not punitive damages. City of Hope National Medical Center v. Genentech, Inc., S129463, formerly at 123 Cal.App.4th 306, mod. 123 Cal.App.4th 1501b, review granted 2/2/05.
Primary assumption of risk. Does primary assumption of the risk, as embodied in the “veterinarian’s rule,” bar a kennel worker bitten by a dog from suing the dog’s owner under Civil Code section 3342? Priebe v. Nelson, S126412, formerly at 119 Cal.App.4th 235, review granted 9/15/04. OPINION ISSUED 8/28/06.
Duty to disclose STD. (1) May a person be liable for failing to disclose to sexual partner that the person has a sexually transmissible disease only when the person actually knows he or she has the STD or also when the person reasonably should have known? (2) If the duty to disclose is limited to actual knowledge situations, did the discovery permitted by the trial court violate either traditional standards of discovery (e.g., relevance) or constitutionally protected rights of privacy? John B. v. Superior Court, S128248, formerly at 121 Cal.App.4th 1000, review granted 11/10/04.
Post-judgment settlement. Where a post-judgment settlement agreement (1) revises a damages award, (2) provides for the parties to withdraw their appeals but does not provide for an amended judgment, and (3) expressly preserves the defendant’s right to bring a malicious prosecution action, does the settlement agreement preclude a finding that the initial action was “favorably terminated” (in defendant’s favor) for purposes of the defendant’s subsequent malicious prosecution action? Seibel v. Mittlesteadt, S125590, formerly at 118 Cal.App.4th 406, review granted 9/1/04, issue limited 9/15/04.
Government liability, sports injuries. (1) Did a community college district have a special relationship giving rise to a legal duty of care to a student from another community college injured in a pre-season intercollegiate baseball game? (2) Does the Government Code immunity for hazardous recreational activities apply to the player’s claims for personal injury due to the defendant’s allegedly negligent conduct? Avila v. Citrus Community College Dist., S119575, formerly at 111 Cal.App.4th 811, review granted 12/10/03. OPINION ISSUED 4/6/06.
Defamation, statute of limitations publication. When a publication containing a defamatory statement is available to the public but has very limited distribution, does the statute of limitations on a defamation cause of action begin to run at the time of the first general distribution (the “single publication rule”) or when the allegedly defamatory statement is or reasonably should have been discovered (the “discovery rule”)? Hebrew Academy of San Francisco v. Goldman, S134873, formerly at 129 Cal.App.4th 391, review granted 8/24/05.
Defamation & free speech. When a trial court has found that defendant in a defamation action has made repeated false defamatory statements against plaintiff and pecuniary compensation would not afford adequate relief in the event of future repeated statements, may the trial court enjoin defendant from continuing to make the same defamatory statements to third parties, or is such an injunction an unconstitutional prior restraint on speech? The court ordered briefing deferred pending the decision of the United States Supreme Court in Tory v.Cochran (Oct. 29, 2003, [nonpub. opn.]), certiorari granted September 28, 2004, No. 03-1488, __ U.S. __ [125 S.Ct. 26, 159 L.Ed.2d 856]. Balboa Island Village Inn, Inc. v. Lemen, S127904, formerly at 121 Cal.App.4th 583, grant & hold review granted 12/15/04.
Patent royalties & fiduciary duty. When an inventor or researcher entrusts a new discovery to another under a contract where the other party will develop, patent, and commercially exploit discovery in exchange for royalties, does a fiduciary relationship arise between the parties, a breach of which may support tort, and in an appropriate case punitive, damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract and not punitive damages. City of Hope National Medical Center v. Genentech, Inc., S129463, formerly at 123 Cal.App.4th 306, mod. 123 Cal.App.4th 1501b, review granted 2/2/05.
Primary assumption of risk. Does primary assumption of the risk, as embodied in the “veterinarian’s rule,” bar a kennel worker bitten by a dog from suing the dog’s owner under Civil Code section 3342? Priebe v. Nelson, S126412, formerly at 119 Cal.App.4th 235, review granted 9/15/04. OPINION ISSUED 8/28/06.
Duty to disclose STD. (1) May a person be liable for failing to disclose to sexual partner that the person has a sexually transmissible disease only when the person actually knows he or she has the STD or also when the person reasonably should have known? (2) If the duty to disclose is limited to actual knowledge situations, did the discovery permitted by the trial court violate either traditional standards of discovery (e.g., relevance) or constitutionally protected rights of privacy? John B. v. Superior Court, S128248, formerly at 121 Cal.App.4th 1000, review granted 11/10/04.
Post-judgment settlement. Where a post-judgment settlement agreement (1) revises a damages award, (2) provides for the parties to withdraw their appeals but does not provide for an amended judgment, and (3) expressly preserves the defendant’s right to bring a malicious prosecution action, does the settlement agreement preclude a finding that the initial action was “favorably terminated” (in defendant’s favor) for purposes of the defendant’s subsequent malicious prosecution action? Seibel v. Mittlesteadt, S125590, formerly at 118 Cal.App.4th 406, review granted 9/1/04, issue limited 9/15/04.
Government liability, sports injuries. (1) Did a community college district have a special relationship giving rise to a legal duty of care to a student from another community college injured in a pre-season intercollegiate baseball game? (2) Does the Government Code immunity for hazardous recreational activities apply to the player’s claims for personal injury due to the defendant’s allegedly negligent conduct? Avila v. Citrus Community College Dist., S119575, formerly at 111 Cal.App.4th 811, review granted 12/10/03. OPINION ISSUED 4/6/06.
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.
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?
Employment 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.
Invasion of privacy. Do employees have an invasion of privacy claim when their employer installed a hidden surveillance camera in the office to investigate if someone was using an office computer for improper purposes, only operated the camera after normal working hours, and did not actually capture any video of the employees who worked in the office? Hernandez v. Hillsides, Inc., formerly at 142 Cal.App.4th 1377, No. S147552, review granted 1/3/07.
Non-compete clause. (1) Is a non-competition agreement between an employer and an employee, that prohibits the employee from performing services for former clients, invalid under Business and Professions Code section 16600, unless it falls within the statutory or judicially-created trade secrets exceptions to the statute? (2) Does a contract provision releasing “any and all” claims the employee might have against the employer encompass non-waivable statutory protections, such as the employee indemnity protection of Labor Code section 2802? Edwards v. Arthur Andersen LLP, S147190, formerly at 142 Cal.App.4th 603, mod. 143 Cal.App.4th 70b, No. S147190, review granted 11/29/06.
Workers’ compensation apportionment: SB 899. (1) Did SB 899’s repeal of Labor Code section 4750 and the enactment of new apportionment statutes change the law of apportionment of permanent disability indemnity as determined by this court in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1? (2) If so, how is permanent disability indemnity to be apportioned between injuries? Brodie v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 685, No. S146979; rev. granted 11/15/06; Welcher v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 818, No. S147030, review granted 11/15/06.
The State and Collective Bargaining. Did a collective bargaining agreement between the state and a union of state engineers, which required use of state engineers on public works projects before using private engineers, violate article XXII of the state Constitution, added by Proposition 35 in 2000? That measure provided that state entities “shall be allowed” to contract with private architectural and engineering firms for services on public works, and nothing in the Constitution shall be construed to “limit, restrict or prohibit” them from doing so. Consulting Engineers & Land Surveyors in California, Inc. v. Professional Engineers in California Government, S145341, 140 Cal.App.4th 466, review granted 9/13/06.
Talent agency/employment. Are the licensing requirements of the Talent Agencies Act (Lab. Code § 1700 et seq.) applicable to personal business managers as well as talent agents? (2) Is the doctrine of severability of contracts applicable to violations of the Act, or does any act of unlicensed procurement of entertainment employment for an actor by an unlicensed personal business manager in violation of the Act void a contract for personal management services in its entirety? Marathon Entertainment, Inc. v. Blasi, S145428, formerly at 140 Cal.App.4th 1001, rev. granted 9/20/06.
Invasion of privacy. Do employees have an invasion of privacy claim when their employer installed a hidden surveillance camera in the office to investigate if someone was using an office computer for improper purposes, only operated the camera after normal working hours, and did not actually capture any video of the employees who worked in the office? Hernandez v. Hillsides, Inc., formerly at 142 Cal.App.4th 1377, No. S147552, review granted 1/3/07.
Non-compete clause. (1) Is a non-competition agreement between an employer and an employee, that prohibits the employee from performing services for former clients, invalid under Business and Professions Code section 16600, unless it falls within the statutory or judicially-created trade secrets exceptions to the statute? (2) Does a contract provision releasing “any and all” claims the employee might have against the employer encompass non-waivable statutory protections, such as the employee indemnity protection of Labor Code section 2802? Edwards v. Arthur Andersen LLP, S147190, formerly at 142 Cal.App.4th 603, mod. 143 Cal.App.4th 70b, No. S147190, review granted 11/29/06.
Workers’ compensation apportionment: SB 899. (1) Did SB 899’s repeal of Labor Code section 4750 and the enactment of new apportionment statutes change the law of apportionment of permanent disability indemnity as determined by this court in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1? (2) If so, how is permanent disability indemnity to be apportioned between injuries? Brodie v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 685, No. S146979; rev. granted 11/15/06; Welcher v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 818, No. S147030, review granted 11/15/06.
The State and Collective Bargaining. Did a collective bargaining agreement between the state and a union of state engineers, which required use of state engineers on public works projects before using private engineers, violate article XXII of the state Constitution, added by Proposition 35 in 2000? That measure provided that state entities “shall be allowed” to contract with private architectural and engineering firms for services on public works, and nothing in the Constitution shall be construed to “limit, restrict or prohibit” them from doing so. Consulting Engineers & Land Surveyors in California, Inc. v. Professional Engineers in California Government, S145341, 140 Cal.App.4th 466, review granted 9/13/06.
Talent agency/employment. Are the licensing requirements of the Talent Agencies Act (Lab. Code § 1700 et seq.) applicable to personal business managers as well as talent agents? (2) Is the doctrine of severability of contracts applicable to violations of the Act, or does any act of unlicensed procurement of entertainment employment for an actor by an unlicensed personal business manager in violation of the Act void a contract for personal management services in its entirety? Marathon Entertainment, Inc. v. Blasi, S145428, formerly at 140 Cal.App.4th 1001, rev. granted 9/20/06.
Employee. Penal Code section 385 makes it a misdemeanor for anyone, "personally or through an employee or agent," to move tools or equipment within six feet of a high voltage overhead line. Issue: was an unlicensed tree trimmer hired by homeowners to trim trees, including a tree with branches within six feet of a high voltage line, considered to be the homeowners' employee? (See Lab. Code 2750.5, 6303.) Ramirez v. Nelson, S143819, formerly at 138 Cal.App.4th 890, review granted 7/19/06.
Expense reimbursement. Does an employer comply with its Labor Code section 2802 duty - to indemnify employees for expenses necessarily incurred in discharge of their duties - by paying them increased wages or commissions instead of reimbursing for their actual expenses. Gattuso v. Harte-Hanks Shoppers, Inc., S139555, formerly at 133 Cal.App.4th 985, review granted 2/22/06.
Failure to provide meal/rest periods. Labor Code sction 226.7 requires 1 additional hour of pay for each day the employer fails to provide mandatory meal or rest periods. (1) Is this governed by the three-year statute of limitations for a claim for compensation or the one-year statute for a claim seeking payment of a penalty? (2) When an employee obtains such an award in administrative proceedings and the employer seeks de novo review in superior court, may the employee pursue additional wage claims not presented in the administrative proceedings? Murphy v. Kenneth Cole, Inc., S140308, formerly at 134 Cal.App.4th 728, review granted 2/22/06.
UC Whistleblowers. California's Whistleblower Protection Act requires that, before a University employee may sue for damages, they must file a complaint with the University and it must have failed to reach a decision within a specified time limit. Does this just require the exhaustion of the internal remedy as a condition of bringing the action, or does it bar an action for damages if the university timely renders any decision on the complaint? Miklosy v. Regents of University of California, S139133, unpublished opinion, review granted 1/18/06.
Medical marijuana & disability discrimination. Does an employee who uses marijuana off-duty for medical purposes under the Compassionate Use Act have a FEHA claim for disability discrimination, or a common law tort claim for wrongful termination in violation of public policy? Ross v. Ragingwire Telecommunications, Inc., S138130, formerly at 132 Cal.App.4th 590, review granted 11/30/05.
FEHA & disability discrimination. Who has the burden of proof: the employee, to make a prima facie showing that s/he had the capacity to perform all essential job duties; or the employer, to show the employee could not perform all duties without reasonable accomodation? Green v. State of California, S13770, formerly at 132 Cal.App.4th 97, review granted 11/16/05.
At will. An employment contract says “your employment . . . is at will,” and “[t]his simply means [employer] has the right to terminate your employment at any time.” Under this contract, may an employee be terminated at any time without cause, or only with cause, permitting introduction of extrinsic evidence on the proper interpretation of the contract? Dore v. Arnold Worldwide, Inc., S124494, unpublished opinion, review granted 7/21/04. 8/2/06 opinion upheld the clause as contemplating termination with or without cause. http://www.courtinfo.ca.gov/opinions/documents/S124494.PDF
Discharge & wages. Employee’s employment terminates on completion of an agreed-upon period of employment or specific task. Has the employee been “discharged” within the meaning of Labor Code section 201 such that “the wages earned and unpaid at the time of discharge are due and payable immediately”? Smith v. Superior Court, S129476, formerly at 123 Cal.App.4th 128; review granted 1/19/05. ANSWER: YES, PER OPINION ISSUED 7/10/06; slip opinion at: http://www.courtinfo.ca.gov/opinions/documents/S129476.PDF.
FEHA and free speech. (a) Is use of sexually coarse and vulgar language in the workplace sexual harassment under FEHA? (b) Does the potential imposition of FEHA liability infringe defendants’ free speech rights under the state or federal constitution? Lyle v.Warner Bros., S125171, formerly at 117 Cal.App.4th 1164, review granted 7/21/04. OPINION ISSUED 4/20/06: http://www.courtinfo.ca.gov/opinions/documents/S125171.PDF
Harassment by employer’s client. (1) Prior to 2003, did FEHA require an employer take reasonable steps to prevent hostile environment sexual harassment of an employee by a client with whom the employee is required to interact? (2) If not, did the Legislature intend the 2003 amendment to apply retroactively to incidents prior to the effective date? (3) If so, would applying the 2003 amendment violate federal or state due process ? Carter v. California Dept. of Veterans Affairs, S127921, formerly at 121 Cal.App.4th 840, review granted 12/1/04. OPINION ISSUED 6/8/06: http://www.courtinfo.ca.gov/opinions/documents/S127921.PDF
Police personnel records. When a request for information regarding a peace officer disciplinary proceeding is made under the California Public Records Act, what information is protected from disclosure as a “personnel record” under Penal Code section 832.7? Copley Press, Inc. v. Superior Court, S128603, formerly at 122 Cal.App.4th 489, review granted 12/1/04.
Family Rights Act. (1) Under the Family Rights Act - granting employees the right to a leave of absence when employee has a serious health condition making employee “unable to perform the functions of the position" - is the employee entitled to a leave of absence where the health condition prevents him/her working for a specific employer, but the employee can perform a similar job for a different employer? (2) Did defendant’s failure to invoke the statutory procedure for contesting the medical certificate preclude it from later contesting the certificate's validity? Lonicki v. Sutter Health Central, S130839, formerly at 124 Cal.App.4th 1139, review granted 3/16/05.
Government liability, "dismissal." Was an injured county employee “dismissed . . . for disability” within the meaning of Gov't Code section 31725, and thus entitled to back pay on reinstatement, where the employing agency had sent him a letter stating that he should not return to work until he either could do so without restrictions or was able to perform the light duty tasks required in his latest assignment without further complaint/injury? Stephens v. County of Tulare, S129794, formerly at 123 Cal.App.4th 964, review granted 2/23/05. 5/25/06 opinion: http://www.courtinfo.ca.gov/opinions/documents/S129794.PDF
Government liability, Brown Act. Under what circumstances, if any, does a public agency’s duty under the Meyers-Milias-Brown Act, to meet and confer with a recognized employee organization before making changes to working conditions, apply to actions implementing a fundamental management or policy decision where the adoption of that decision was exempt under Government Code section 3504? Claremont Police Officers Assn. v. City of Claremont, S120546, formerly at 112 Cal.App.4th 639, review granted 1/14/04. ARGUED & SUBMITTED 6/6/06; OPINION DUE.
Employee bonus plan. Does an employee bonus plan based on a profit figure that is reduced by a store’s expenses, including the cost of workers' compensation insurance and cash and inventory losses, violate (a) Business and Professions Code section 17200, (b) Labor Code sections 221, 400-410, or 3751, or (c) California Code of Regulations, title 8, section 11070? Prachasaisoradej v. Ralphs Grocery Company, Inc., S128576, formerly at 122 Cal.App.4th 29, review granted 12/15/04.
UC Whistleblowers. California's Whistleblower Protection Act requires that, before a University employee may sue for damages, they must file a complaint with the University and it must have failed to reach a decision within a specified time limit. Does this just require the exhaustion of the internal remedy as a condition of bringing the action, or does it bar an action for damages if the university timely renders any decision on the complaint? Miklosy v. Regents of University of California, S139133, unpublished opinion, review granted 1/18/06.
Medical marijuana & disability discrimination. Does an employee who uses marijuana off-duty for medical purposes under the Compassionate Use Act have a FEHA claim for disability discrimination, or a common law tort claim for wrongful termination in violation of public policy? Ross v. Ragingwire Telecommunications, Inc., S138130, formerly at 132 Cal.App.4th 590, review granted 11/30/05.
FEHA & disability discrimination. Who has the burden of proof: the employee, to make a prima facie showing that s/he had the capacity to perform all essential job duties; or the employer, to show the employee could not perform all duties without reasonable accomodation? Green v. State of California, S13770, formerly at 132 Cal.App.4th 97, review granted 11/16/05.
At will. An employment contract says “your employment . . . is at will,” and “[t]his simply means [employer] has the right to terminate your employment at any time.” Under this contract, may an employee be terminated at any time without cause, or only with cause, permitting introduction of extrinsic evidence on the proper interpretation of the contract? Dore v. Arnold Worldwide, Inc., S124494, unpublished opinion, review granted 7/21/04. 8/2/06 opinion upheld the clause as contemplating termination with or without cause. http://www.courtinfo.ca.gov/opinions/documents/S124494.PDF
Discharge & wages. Employee’s employment terminates on completion of an agreed-upon period of employment or specific task. Has the employee been “discharged” within the meaning of Labor Code section 201 such that “the wages earned and unpaid at the time of discharge are due and payable immediately”? Smith v. Superior Court, S129476, formerly at 123 Cal.App.4th 128; review granted 1/19/05. ANSWER: YES, PER OPINION ISSUED 7/10/06; slip opinion at: http://www.courtinfo.ca.gov/opinions/documents/S129476.PDF.
FEHA and free speech. (a) Is use of sexually coarse and vulgar language in the workplace sexual harassment under FEHA? (b) Does the potential imposition of FEHA liability infringe defendants’ free speech rights under the state or federal constitution? Lyle v.Warner Bros., S125171, formerly at 117 Cal.App.4th 1164, review granted 7/21/04. OPINION ISSUED 4/20/06: http://www.courtinfo.ca.gov/opinions/documents/S125171.PDF
Harassment by employer’s client. (1) Prior to 2003, did FEHA require an employer take reasonable steps to prevent hostile environment sexual harassment of an employee by a client with whom the employee is required to interact? (2) If not, did the Legislature intend the 2003 amendment to apply retroactively to incidents prior to the effective date? (3) If so, would applying the 2003 amendment violate federal or state due process ? Carter v. California Dept. of Veterans Affairs, S127921, formerly at 121 Cal.App.4th 840, review granted 12/1/04. OPINION ISSUED 6/8/06: http://www.courtinfo.ca.gov/opinions/documents/S127921.PDF
Police personnel records. When a request for information regarding a peace officer disciplinary proceeding is made under the California Public Records Act, what information is protected from disclosure as a “personnel record” under Penal Code section 832.7? Copley Press, Inc. v. Superior Court, S128603, formerly at 122 Cal.App.4th 489, review granted 12/1/04.
Family Rights Act. (1) Under the Family Rights Act - granting employees the right to a leave of absence when employee has a serious health condition making employee “unable to perform the functions of the position" - is the employee entitled to a leave of absence where the health condition prevents him/her working for a specific employer, but the employee can perform a similar job for a different employer? (2) Did defendant’s failure to invoke the statutory procedure for contesting the medical certificate preclude it from later contesting the certificate's validity? Lonicki v. Sutter Health Central, S130839, formerly at 124 Cal.App.4th 1139, review granted 3/16/05.
Government liability, "dismissal." Was an injured county employee “dismissed . . . for disability” within the meaning of Gov't Code section 31725, and thus entitled to back pay on reinstatement, where the employing agency had sent him a letter stating that he should not return to work until he either could do so without restrictions or was able to perform the light duty tasks required in his latest assignment without further complaint/injury? Stephens v. County of Tulare, S129794, formerly at 123 Cal.App.4th 964, review granted 2/23/05. 5/25/06 opinion: http://www.courtinfo.ca.gov/opinions/documents/S129794.PDF
Government liability, Brown Act. Under what circumstances, if any, does a public agency’s duty under the Meyers-Milias-Brown Act, to meet and confer with a recognized employee organization before making changes to working conditions, apply to actions implementing a fundamental management or policy decision where the adoption of that decision was exempt under Government Code section 3504? Claremont Police Officers Assn. v. City of Claremont, S120546, formerly at 112 Cal.App.4th 639, review granted 1/14/04. ARGUED & SUBMITTED 6/6/06; OPINION DUE.
Employee bonus plan. Does an employee bonus plan based on a profit figure that is reduced by a store’s expenses, including the cost of workers' compensation insurance and cash and inventory losses, violate (a) Business and Professions Code section 17200, (b) Labor Code sections 221, 400-410, or 3751, or (c) California Code of Regulations, title 8, section 11070? Prachasaisoradej v. Ralphs Grocery Company, Inc., S128576, formerly at 122 Cal.App.4th 29, review granted 12/15/04.
Insurance 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.
Rental car coverage. What is the test for determining whether an insured is ‘engaged in the business of renting or leasing motor vehicles without operators’ under California Insurance Code § 11580.9(b)? Sentry Select Ins. Co. v. Fidelity & Guarenty, S145087, certified question from 9th Circuit, granted 8/23/06.
Bad faith/UIM claim. Whether an insurer acts in bad faith in resolving an underinsured motorist BI claim based on the insured's medical records alone, without consulting the insured's treating physician or having the insured examined by an IME doctor. Wilson v. 21st Century Ins. Co., S141790, formerly at 136 Cal.App.4th 97, review granted 4/26/06.
Rental car coverage. What is the test for determining whether an insured is ‘engaged in the business of renting or leasing motor vehicles without operators’ under California Insurance Code § 11580.9(b)? Sentry Select Ins. Co. v. Fidelity & Guarenty, S145087, certified question from 9th Circuit, granted 8/23/06.
Bad faith/UIM claim. Whether an insurer acts in bad faith in resolving an underinsured motorist BI claim based on the insured's medical records alone, without consulting the insured's treating physician or having the insured examined by an IME doctor. Wilson v. 21st Century Ins. Co., S141790, formerly at 136 Cal.App.4th 97, review granted 4/26/06.
Reinsurance, discovery. Does CCP § 2017 permit discovery of information about the existence and extent of reinsurance coverage and the financial condition of a reinsurer for a defendant’s insurer? Catholic Mutual Relief Society v. Superior Court, S134545, formerly at 128 Cal.App.4th 879, review granted 7/27/05.
Coverage, rental cars. Does the duty of an insurer to investigate the insurability of an insured apply to an automobile liability insurer issuing an excess liability insurance contract in a rental car transaction?” Philadelphia Indemnity Ins. Co. v. Montes-Harris, S130717, certified question from 9th Circuit, 3/2/05. OPINION ISSUED
Uninsured motorist arbitration, costs/prejudgment interest. (1) Do the statutes providing for an award of costs and prejudgment interest to a prevailing party who obtains a judgment exceeding a statutory offer to compromise apply to arbitration proceedings on claims for uninsured or underinsured motorist benefits? (2) If so, can the costs and prejudgment interest, together with the compensatory damages awarded, exceed the insured’s policy limits? Pilimai v. Farmers Ins. Exchange Co., S133850, formerly at 127 Cal.App.4th 1093, review granted 7/13/05. Opinion issued; to link to opinion: http://www.courtinfo.ca.gov/opinions/documents/S133850.PDF
Assigning Brandt fees. May an insured assign its right under Brandt v. Superior Court (1985) 37 Cal.3d 813 to recover the attorney fees incurred in order to obtain insurance policy benefits that the insurer denied in bad faith? Essex Ins. Co. v. Five Star Dye House, Inc., S131992, formerly at 125 Cal.App.4th 1569, review granted 5/11/05. YES, PER UNANIMOUS OPINION ISSUED 7/6/06: http://www.courtinfo.ca.gov/opinions/documents/S131992.PDF
"Under construction." Property policy excludes coverage for damages to a building vacant for more than 60 days except when the building is "under construction." Does this clause apply to a building undergoing renovation, or only to one being newly constructed? TRB Investments, Inc. v. Fireman's Fund, S136690, formerly at 130 Cal.App.4th 1594, mod. at 131 Cal.App.4th 1026a, review granted 9/28/05. OPINION ISSUED.
Coverage, rental cars. Does the duty of an insurer to investigate the insurability of an insured apply to an automobile liability insurer issuing an excess liability insurance contract in a rental car transaction?” Philadelphia Indemnity Ins. Co. v. Montes-Harris, S130717, certified question from 9th Circuit, 3/2/05. OPINION ISSUED
Uninsured motorist arbitration, costs/prejudgment interest. (1) Do the statutes providing for an award of costs and prejudgment interest to a prevailing party who obtains a judgment exceeding a statutory offer to compromise apply to arbitration proceedings on claims for uninsured or underinsured motorist benefits? (2) If so, can the costs and prejudgment interest, together with the compensatory damages awarded, exceed the insured’s policy limits? Pilimai v. Farmers Ins. Exchange Co., S133850, formerly at 127 Cal.App.4th 1093, review granted 7/13/05. Opinion issued; to link to opinion: http://www.courtinfo.ca.gov/opinions/documents/S133850.PDF
Assigning Brandt fees. May an insured assign its right under Brandt v. Superior Court (1985) 37 Cal.3d 813 to recover the attorney fees incurred in order to obtain insurance policy benefits that the insurer denied in bad faith? Essex Ins. Co. v. Five Star Dye House, Inc., S131992, formerly at 125 Cal.App.4th 1569, review granted 5/11/05. YES, PER UNANIMOUS OPINION ISSUED 7/6/06: http://www.courtinfo.ca.gov/opinions/documents/S131992.PDF
"Under construction." Property policy excludes coverage for damages to a building vacant for more than 60 days except when the building is "under construction." Does this clause apply to a building undergoing renovation, or only to one being newly constructed? TRB Investments, Inc. v. Fireman's Fund, S136690, formerly at 130 Cal.App.4th 1594, mod. at 131 Cal.App.4th 1026a, review granted 9/28/05. OPINION ISSUED.
Health Care 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.
Balance billing. Does Cal. Health & Safety Code 1379 bar emergency room doctors who aren't in contract with a health care service plan from balance billing plan member patients for the balance of the doctor's fee not paid by the plan or its delegate? Prospect Medical Group, Inc. v. Northridge Emergency Med. Group, S142209, formerly at 136 Cal.App.4th 1155, review granted 5/24/06.
Knox-Keene. Does the Knox-Keene Health Care Service Act exempt approved providers under the Act from the limitations that Business & Professions Code §§ 665 and 2556 otherwise impose on business and financial relationships between dispensing opticians and optometrists or ophthalmologists? People v. Cole (Pearle), S121724, formerly at 113 Cal.App.4th 956, review granted 3/3/04.
Health care arbitration. Did a written arbitration agreement entered into at the time of a patient’s first treatment by a chiropractor, stating it would “bind the patient and the health care provider . . . who now or in the future treat[s] the patient,” apply to a second treatment for a different condition two years later? Reigelsperger v. Siller, S131664, formerly at 125 Cal.App.4th 1008, review granted 4/13/05.
Knox-Keene. Does the Knox-Keene Health Care Service Act exempt approved providers under the Act from the limitations that Business & Professions Code §§ 665 and 2556 otherwise impose on business and financial relationships between dispensing opticians and optometrists or ophthalmologists? People v. Cole (Pearle), S121724, formerly at 113 Cal.App.4th 956, review granted 3/3/04.
Health care arbitration. Did a written arbitration agreement entered into at the time of a patient’s first treatment by a chiropractor, stating it would “bind the patient and the health care provider . . . who now or in the future treat[s] the patient,” apply to a second treatment for a different condition two years later? Reigelsperger v. Siller, S131664, formerly at 125 Cal.App.4th 1008, review granted 4/13/05.
Damage 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.
Punitive damages. When an inventor or researcher contracts with another for the other to develop, patent, and commercially exploit the discovery in return for royalties, does a fiduciary relationship arise between the two parties, a breach of which may support tort and punitive damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract damages. City of Hope National Medical Center v. Genentech, Inc., S129463, formerly at 123 Cal.App.4th 306, mod. 123 Cal.App.4th 1501b, review granted 2/2/05.
Punitive damages. When an inventor or researcher contracts with another for the other to develop, patent, and commercially exploit the discovery in return for royalties, does a fiduciary relationship arise between the two parties, a breach of which may support tort and punitive damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract damages. City of Hope National Medical Center v. Genentech, Inc., S129463, formerly at 123 Cal.App.4th 306, mod. 123 Cal.App.4th 1501b, review granted 2/2/05.
Punitives/tobacco. Responding to one of the first in a spate of tobacco big punitive awards affirmed on appeal, the California Supreme Court has granted review on the constitutionality of a $28 million punitive award to a single plaintiff. Bullock v. Philip Morris USA, Inc., formerly at 138 Cal.App.4th 1029, mod. 139 Cal.App.4th 588a. Issues are whether the 33:1 ratio of punitives to compensatories violates due process, and should the jury have been instructed it can assess punitives for the effects of defendant's conduct on non-parties. The state high court deferred briefing pending the U.S. Supreme Court's decision in Philip Morris USA v. Williams (Ore. 2005) 127 P.3d 1165, cert. granted 5/30/06, No. 05-1256.
Attorney-Related 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.
Expert fees under private AG statute. May a prevailing plaintiff who is awarded attorney fees under the private attorney general statute (Cal. Civ. section 1021.5) entitled to recover expert witness fees? Olson v. Automobile Club of Southern California, formerly at 139 Cal.App 4th 552, review granted 7/26/06.
Limitations, attorney malpractice. Whether the limitations period is tolled for a legal malpractice claim, as to an attorney's former firm, while the lawyer continues to represent the client in the same subject matter at her new law firm. Beal Bank, SSB v. Arter & Hadden, S141131, formerly at 135 Cal.App.4th 643, review granted 4/19/06.
Non-profit representation, registration. (1) Must a nonprofit public benefit corporation providing legal representation and other services, to the public, register with the State Bar)? (2) If so, may a court require a nonprofit corporation that has failed to register to disgorge statutory attorney fees to which the nonprofit corporation would otherwise be entitled? Frye v. Tenderloin Housing Clinic, Inc., S127641, formerly at 120 Cal.App.4th 1208, mod. 121 Cal.App.4th 517c, review granted 11/10/04. OPINION ISSUED 3/9/06.
Confidential information. May plaintiffs’ attorneys and expert witnesses be disqualified as a sanction when one attorney, having inadvertently received a document (including confidential work product) prepared by defense counsel, extensively reviewed the document with the attorneys representing other plaintiffs and with plaintiffs’ expert witnesses? Rico v. Mitsubishi Motors Corp., S123808, formerly at 116 Cal.App.4th 51, review granted 6/9/04.
City attorney disqualification, ethical wall. When an elected city attorney previously represented a company that becomes a target of an investigation by the city attorney’s office, and the city attorney’s previous representation included matters related to the investigation, is the appropriate remedy to disqualify the entire city attorney’s office and require that the matter be taken over by a separate entity or attorney, or is the imposition of an “ethical screen” by the city attorney’s office, barring any participation in the matter by the elected city attorney, sufficient? City and County of San Francisco v. Cobra Solutions, Inc., S126397, formerly at 119 Cal.App.4th 304, review granted 8/25/04. OPINION ISSUED 6/5/06.
Private attorney general fees. Does the “private attorney general” fee shifting statute (CCP§ 1021.5) authorize an award of fees against nongovernmental entities that initially filed amicus briefs on behalf of defendant state agencies, and thereafter were designated real parties in interest and continued to participate in the action, when the nongovernmental entities did not create the programs challenged in the underlying action and had no authority to terminate or modify those programs? Connerly v. State Personnel Board, S125502, unpublished opinion, review granted 8/11/04. OPINION ISSUED 3/2/06.
Confidential information. May plaintiffs’ attorneys and expert witnesses be disqualified as a sanction when one attorney, having inadvertently received a document (including confidential work product) prepared by defense counsel, extensively reviewed the document with the attorneys representing other plaintiffs and with plaintiffs’ expert witnesses? Rico v. Mitsubishi Motors Corp., S123808, formerly at 116 Cal.App.4th 51, review granted 6/9/04.
City attorney disqualification, ethical wall. When an elected city attorney previously represented a company that becomes a target of an investigation by the city attorney’s office, and the city attorney’s previous representation included matters related to the investigation, is the appropriate remedy to disqualify the entire city attorney’s office and require that the matter be taken over by a separate entity or attorney, or is the imposition of an “ethical screen” by the city attorney’s office, barring any participation in the matter by the elected city attorney, sufficient? City and County of San Francisco v. Cobra Solutions, Inc., S126397, formerly at 119 Cal.App.4th 304, review granted 8/25/04. OPINION ISSUED 6/5/06.
Private attorney general fees. Does the “private attorney general” fee shifting statute (CCP§ 1021.5) authorize an award of fees against nongovernmental entities that initially filed amicus briefs on behalf of defendant state agencies, and thereafter were designated real parties in interest and continued to participate in the action, when the nongovernmental entities did not create the programs challenged in the underlying action and had no authority to terminate or modify those programs? Connerly v. State Personnel Board, S125502, unpublished opinion, review granted 8/11/04. OPINION ISSUED 3/2/06.
Anti-SLAPP 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.
New CCP 425.17. Can the exception to the anti-SLAPP statute (CCP 425.16) for actions brought "solely in the public interest or on behalf of the general public" (CCP 425.17) apply to a complaint that includes any claim for personal relief? Club Member for an Honest Election v. Sierra Club, S 143087, formerly at 137 Cal.App.4th 1166, review granted 6/21/06.
B & P section 17200 and anti-SLAPP. Whether all of plaintiffs’ section 17200 causes of action, based on dental association’s course of conduct relating to the health controversy over the safety of mercury amalgam fillings, are subject to a special motion to strike. Kids Against Pollution v. California Dental Association, S117156, formerly at 108 Cal.App.4th 1003, review granted 9/17/03.
Prima facie case. On an anti-SLAPP motion against authors and investigators of articles relating to alleged recovery of repressed memories of child abuse, did the court properly conclude plaintiff established a prima facie case supporting some of her claims for invasion of privacy and defamation? Taus v. Loftus, S133805. unpublished opinion, review granted 6/22/05.
Illegal conduct. When a plaintiff files a cause of action based upon illegal conduct (e.g., extortion) allegedly engaged in by the defendant in relation to prior litigation, is the plaintiff’s action subject to a special motion to strike under the anti-SLAPP statute? Flatley v. Mauro, S128429, formerly at 121 Cal.App.4th 1523, review granted 12/15/04. OPINION ISSUED 7/27/06, CREATING EXCEPTION FOR CONDUCT ILLEGAL "AS A MATTER OF LAW." For slip opinion: http://www.courtinfo.ca.gov/opinions/documents/S128429.PDF
Malicious prosecution & anti-SLAPP. Is a cause of action for malicious prosecution subject to a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16) if the underlying action that allegedly was maliciously prosecuted was itself dismissed pursuant to a special motion to strike under that statute? Soukup v. Stock, S126864, formerly at 118 Cal.App.4th 1490, review granted 10/20/04; Soukup v. Law Offices of Herbert Hafif, S126715, unpublished opinion, review granted 10/20//04. OPINION ISSUED 7/27/06: http://www.courtinfo.ca.gov/opinions/documents/S126715.PDF
Peer review as "official proceeding." Is an action arising out of the hospital peer review mandated by B & P § 809, (a)(8), subject to a special motion to strike under the anti-SLAPP statute because such review is an “official proceeding” or implicates a public issue or issue of public interest within the meaning of CCP § 425.16 (e)(2) and (e)(4)? Kibler v. Northern Inyo County Local Hospital Dist., S131641, formerly at 126 Cal.App.4th 713, review granted 4/27/05. ANSWER: YES, opinion issued 7/19/06: http://www.courtinfo.ca.gov/opinions/documents/S131641A.PDF
Anti-SLAPP attorney fees. Does a trial court have jurisdiction to consider a motion for attorney fees under the anti-SLAPP statute if the action was voluntarily dismissed before the special motion to strike was filed? S. B. Beach Properties v. Berti, S127513, formerly at 120 Cal.App.4th 1001, review granted 10/27/04.
Litigation privilege. Is a local ordinance prohibiting a landlord from maliciously taking action to terminate a tenancy “based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord” preempted by the statewide litigation privilege of Civil Code section 47, subdivision (b), because the ordinance applies to communicative acts? Action Apartment Assn., Inc. v. City of Santa Monica, S129448, formerly at 123 Cal.App.4th 47, review granted 2/16/05.
Prima facie case. On an anti-SLAPP motion against authors and investigators of articles relating to alleged recovery of repressed memories of child abuse, did the court properly conclude plaintiff established a prima facie case supporting some of her claims for invasion of privacy and defamation? Taus v. Loftus, S133805. unpublished opinion, review granted 6/22/05.
Illegal conduct. When a plaintiff files a cause of action based upon illegal conduct (e.g., extortion) allegedly engaged in by the defendant in relation to prior litigation, is the plaintiff’s action subject to a special motion to strike under the anti-SLAPP statute? Flatley v. Mauro, S128429, formerly at 121 Cal.App.4th 1523, review granted 12/15/04. OPINION ISSUED 7/27/06, CREATING EXCEPTION FOR CONDUCT ILLEGAL "AS A MATTER OF LAW." For slip opinion: http://www.courtinfo.ca.gov/opinions/documents/S128429.PDF
Malicious prosecution & anti-SLAPP. Is a cause of action for malicious prosecution subject to a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16) if the underlying action that allegedly was maliciously prosecuted was itself dismissed pursuant to a special motion to strike under that statute? Soukup v. Stock, S126864, formerly at 118 Cal.App.4th 1490, review granted 10/20/04; Soukup v. Law Offices of Herbert Hafif, S126715, unpublished opinion, review granted 10/20//04. OPINION ISSUED 7/27/06: http://www.courtinfo.ca.gov/opinions/documents/S126715.PDF
Peer review as "official proceeding." Is an action arising out of the hospital peer review mandated by B & P § 809, (a)(8), subject to a special motion to strike under the anti-SLAPP statute because such review is an “official proceeding” or implicates a public issue or issue of public interest within the meaning of CCP § 425.16 (e)(2) and (e)(4)? Kibler v. Northern Inyo County Local Hospital Dist., S131641, formerly at 126 Cal.App.4th 713, review granted 4/27/05. ANSWER: YES, opinion issued 7/19/06: http://www.courtinfo.ca.gov/opinions/documents/S131641A.PDF
Anti-SLAPP attorney fees. Does a trial court have jurisdiction to consider a motion for attorney fees under the anti-SLAPP statute if the action was voluntarily dismissed before the special motion to strike was filed? S. B. Beach Properties v. Berti, S127513, formerly at 120 Cal.App.4th 1001, review granted 10/27/04.
Litigation privilege. Is a local ordinance prohibiting a landlord from maliciously taking action to terminate a tenancy “based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord” preempted by the statewide litigation privilege of Civil Code section 47, subdivision (b), because the ordinance applies to communicative acts? Action Apartment Assn., Inc. v. City of Santa Monica, S129448, formerly at 123 Cal.App.4th 47, review granted 2/16/05.
ADR 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.
Review. May the parties to a commerical arbitration agreement contractually expand the trial court's jurisdiction 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 12/1/06.
Review. May the parties to a commerical arbitration agreement contractually expand the trial court's jurisdiction 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 12/1/06.
Confidentiality waiver. In an action to determine whether a valid oral settlement agreement was made during mediation, was one party estopped to claim the mediation proceeding was confidential (see Ev. Code 1115-1124) because she had voluntarily declared the facts to be true, stipulated to not disputing them, submitted evidence on them, and litigated their effect for over a year? Simmons v. Ghaderi, formerly at 143 Cal.App.4th 410, S147848, rev. granted 12/16/06.
Arbitration: discovery directed to 3rd party. (1) When an arbitrator issues a discovery order to a third party, who is not bound by the arbitration agreement, may that party seek judicial review of its objections to discovery? (2) If so, what's the scope of judicial review of such an order? Berglund v. Arthroscopic & Laser Surgery Center, S144813, formerly at 139 Cal.App4th 904, review granted 8/23/06.
Who decides if arbitration barred by statute of limitations? When a party seeks to compel arbitration, can the trial court determine if a particular claim is barred by a statute of limitations, as part of determining whether the party waived the right to arbitrate under CCP § 1281.2(a), or is application of a statute of limitations always resolved by the arbitrator? Wagner Construction Co. v. Pacific Mechanical Corp., S136255, unpublished opinion, review granted 10/26/05, SC081031.
Settlement agreement, confidentiality. If the parties to a settlement agreement prepared in mediation include an arbitration provision, is the agreement then deprived of confidentiality under Evidence Code § 1123 (b) – providing that such agreements are not protected from disclosure if signed by the settling parties and “[t]he agreement provides that it is enforceable or binding or words to that effect” — on the theory that by including the arbitration provision, the parties used “words to that effect” and thus impliedly indicated the agreement was to be enforceable or binding? Fair v. Bakhtiari, S129220, formerly at 122 Cal.App.4th 1457, review granted 1/12/05.
Uninsured motorist arbitration, costs/prejudgment interest. (1) Do the statutes providing for an award of costs and prejudgment interest to a prevailing party who obtains a judgment exceeding a statutory offer to compromise apply to arbitration proceedings on claims for uninsured or underinsured motorist benefits? (2) If so, can the costs and prejudgment interest, together with the compensatory damages awarded, exceed the insured’s policy limits? Pilimai v. Farmers Ins. Exchange Co., S133850, formerly at 127 Cal.App.4th 1093, review granted 7/13/05.
Health care arbitration. Did a written arbitration agreement that was entered into at the time of a patient’s first treatment by a chiropractor, stating it would “bind the patient and the health care provider . . . who now or in the future treat[s] the patient,” apply to a second treatment for a different condition two years later? Reigelsperger v. Siller, S131664, formerly at 125 Cal.App.4th 1008, review granted 4/13/05.
Disqualification of neutral. Here's a mouthful on disqualification that seems to be cropping up repeatedly, no doubt why the court granted review. The language is cribbed from the court's website, and I won't try to translate for fear of lousing it up. CCP § 170.1 (a)(8) provides that re appointment of a dispute resolution neutral (DNR), a judge shall be disqualified if he or she “has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discussions regarding such prospective employment or service” (1) Is the judge disqualified whenever an ADR provider has made a casual, informal, and unsolicited inquiry concerning the judge’s potential interest in serving as a dispute resolution neutral sometime in the future, or does the statute apply only when the judge has participated in more formal, serious discussions about prospective employment or service as a dispute resolution neutral? (2) If a judge is disqualified under § 170.1 (a)(8), must any rulings made by the judge after one of the parties requested appointment of a mediator or raised other issues with regard to alternative dispute resolution, but before the judge recused himself or herself, be vacated? Hartford Casualty Ins. Co. v. Superior Court, S131554, formerly at 125 Cal.App.4th 250, review granted 3/23/05 on the court’s own motion.
Arbitration: discovery directed to 3rd party. (1) When an arbitrator issues a discovery order to a third party, who is not bound by the arbitration agreement, may that party seek judicial review of its objections to discovery? (2) If so, what's the scope of judicial review of such an order? Berglund v. Arthroscopic & Laser Surgery Center, S144813, formerly at 139 Cal.App4th 904, review granted 8/23/06.
Who decides if arbitration barred by statute of limitations? When a party seeks to compel arbitration, can the trial court determine if a particular claim is barred by a statute of limitations, as part of determining whether the party waived the right to arbitrate under CCP § 1281.2(a), or is application of a statute of limitations always resolved by the arbitrator? Wagner Construction Co. v. Pacific Mechanical Corp., S136255, unpublished opinion, review granted 10/26/05, SC081031.
Settlement agreement, confidentiality. If the parties to a settlement agreement prepared in mediation include an arbitration provision, is the agreement then deprived of confidentiality under Evidence Code § 1123 (b) – providing that such agreements are not protected from disclosure if signed by the settling parties and “[t]he agreement provides that it is enforceable or binding or words to that effect” — on the theory that by including the arbitration provision, the parties used “words to that effect” and thus impliedly indicated the agreement was to be enforceable or binding? Fair v. Bakhtiari, S129220, formerly at 122 Cal.App.4th 1457, review granted 1/12/05.
Uninsured motorist arbitration, costs/prejudgment interest. (1) Do the statutes providing for an award of costs and prejudgment interest to a prevailing party who obtains a judgment exceeding a statutory offer to compromise apply to arbitration proceedings on claims for uninsured or underinsured motorist benefits? (2) If so, can the costs and prejudgment interest, together with the compensatory damages awarded, exceed the insured’s policy limits? Pilimai v. Farmers Ins. Exchange Co., S133850, formerly at 127 Cal.App.4th 1093, review granted 7/13/05.
Health care arbitration. Did a written arbitration agreement that was entered into at the time of a patient’s first treatment by a chiropractor, stating it would “bind the patient and the health care provider . . . who now or in the future treat[s] the patient,” apply to a second treatment for a different condition two years later? Reigelsperger v. Siller, S131664, formerly at 125 Cal.App.4th 1008, review granted 4/13/05.
Disqualification of neutral. Here's a mouthful on disqualification that seems to be cropping up repeatedly, no doubt why the court granted review. The language is cribbed from the court's website, and I won't try to translate for fear of lousing it up. CCP § 170.1 (a)(8) provides that re appointment of a dispute resolution neutral (DNR), a judge shall be disqualified if he or she “has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discussions regarding such prospective employment or service” (1) Is the judge disqualified whenever an ADR provider has made a casual, informal, and unsolicited inquiry concerning the judge’s potential interest in serving as a dispute resolution neutral sometime in the future, or does the statute apply only when the judge has participated in more formal, serious discussions about prospective employment or service as a dispute resolution neutral? (2) If a judge is disqualified under § 170.1 (a)(8), must any rulings made by the judge after one of the parties requested appointment of a mediator or raised other issues with regard to alternative dispute resolution, but before the judge recused himself or herself, be vacated? Hartford Casualty Ins. Co. v. Superior Court, S131554, formerly at 125 Cal.App.4th 250, review granted 3/23/05 on the court’s own motion.
Unfair Competition & Class Action 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.
Enforceability of arbitration provision barring class actions. The court will decide the enforceability of an arbitration provision prohibiting employee class actions for violations of state wage and hour laws in Gentry v. Superior Court, S141502, formerly at 135 Cal.App.4th 944, review granted 4/26/06.
Proposition 64 "retroactivity." Does Proposition 64, limiting standing to bring a § 17200 action to “any person who has suffered injury in fact and has lost money or property as a result of such unfair competition,” apply to actions pending when the proposition became effective on November 3, 2004? Californians for Disability Rights v. Mervyn’s, S131798, formerly at 126 Cal.App.4th 386, review granted 4/27/05. SHORT ANSWER: YES, per opinion issued late-July, 2006. SLIP OPINION AT: http://www.courtinfo.ca.gov/opinions/documents/S131798.PDF
Proposition 64: amendment of complaint. If Proposition 64's standing limitations apply to § 17200 actions pending on November 3, 2004, may a plaintiff amend his or her complaint to substitute or add a party that satisfies the new standing requirements; does such an amended complaint relate back to the initial complaint for statute of limitations purposes? Branick v. Downey Savings & Loan Assn., S132433, formerly at 126 Cal.App.4th 828, review granted 4/27/05. ISSUED 7/24/06. CLICK HERE FOR LINK to slip opinion: http://www.courtinfo.ca.gov/opinions/documents/S132433.PDF
Class action - "one-way intervention." May a trial court ever depart from the preferred practice of deciding whether to certify a class action before adjudicating any class claims on the merits, or is the rule against such “one-way intervention” in class actions a firm prohibition applicable in all circumstances? Fireside Bank v. Superior Court, S139171, formerly at 133 Cal.App.4th 742, review granted 2/1/06.
“Unlawful.” May a claim for violation of the Invasion of Privacy Act or the § 17200/Unfair Competition Law be premised on the recording of a telephone call without consent of all parties to the conversation, where the call is between California and a state requiring consent of only one party, and the call is recorded in the other state? Kearney v. Salomon Smith Barney, S124739, formerly at 117 Cal.App.4th 446, review granted 6/23/04. OPINION ISSUED, click to link to slip opinion: http://www.courtinfo.ca.gov/opinions/documents/S124739.PDF
Class action, pre-certification privacy. In a putative class action, would the privacy rights of potential class members be violated by a pre-certification letter to be sent to those potential class members who had complained to defendant about the alleged defect on which the action is based, when the letter states that failure to respond to the letter will be treated as consent to disclose the identity of the potential class member to plaintiffs’ counsel for the purpose of this action? Pioneer Electronics (USA), Inc. v. Superior Court, S133794, formerly at 128 Cal.App.4th 246, review granted 7/27/05.
