California Supreme Court Civil Issues Pending: Other
[UPDATED THROUGH MARCH 28, 2012]
How Are Special Education Services Provided for Children in County Jails? In response to a request under C.R.C., rule 8.548 by the United States Court of Appeals for the Ninth Circuit, the court will address this issue: Does Education Code section 56041 — which provides generally that for qualifying children ages eighteen to twenty-two, the school district where the child’s parent resides is responsible for providing special education services — apply to children who are incarcerated in county jails? Los Angeles Unified School Dist. v. Garcia, S199639. (request at 9th Cir. No. 2:09-cv-09289, 669 F.3d 956), certification granted on 3/28/12.
Should Extrinsic Evidence Be Allowed To Correct Drafting Errors in a Will? Should the “four corners” rule (see Estate of Barnes (1965) 63 Cal.2d 580) be reconsidered in order to permit drafting errors in a will to be reformed consistent with clear and convincing extrinsic evidence of the decedent’s intent? Estate of Duke, S199435. (opinion below B227954, formerly 201 Cal.App.4th 599), review granted 3/21/12.
What Is the Standing of Remainder Beneficiaries Under an Irrevocable Trust to Sue the Trustee For Acts Committed When the Trust Was Still Revocable? When the settlor of a revocable inter vivos trust appoints, during his lifetime, someone other than himself to act as trustee, once the settlor dies and the trust becomes irrevocable, do the remainder beneficiaries have standing to sue the trustee for breaches of fiduciary duty committed during the period of revocability? Estate of Giraldin, S197694 (opinion below G041811, formerly 199 Cal.App.4th 577), review granted 12/21/11.
Can the Authority to Select the Members of a Peer Review Panel be Delegated, and if not, Is a New Peer Review Panel Required? (1) Could the executive committee of the hospital medical staff delegate to the hospital governing board its authority to select the hearing officer and the physician members of the peer review panel to hear a physician’s challenge to the governing board’s denial of his application for reappointment to the hospital medical staff? (2) If the hospital by-laws did not permit this procedure, was the peer review panel selected by the governing board “improperly constituted,” requiring a new peer review procedure conducted by a new hearing panel selected by the executive committee? El-Attar v. Hollywood Presbyterian Medical Center, S196830 (opinion below B209056, formerly 198 Cal.App.4th 664, as modified 198 Cal.App.4th 1234c), petition granted 11/30/11.
Is a Life Insurance Policy the Separate Property of the Beneficiary Spouse?
Did the Court of Appeal err in concluding that an insurance policy on the husband’s life was the wife’s separate property upon dissolution of the marriage, even though the policy was purchased during the marriage and the premiums prior to the couple’s separation were paid with community funds, because the policy listed the wife as the owner? In re Marriage of Valli S193990 (opinion below B222435, formerly 195 Cal.App.4th 776), review granted 8/24/11.
What Standard Applies to Determine a Good Faith Belief in a Valid Marriage? Is a person’s good faith belief in the validity of a marriage measured by an objective or subjective standard for the purpose of determining the person’s status as a putative spouse under Code of Civil Procedure section 377.60? Ceja v. Rudolph & Sletten, Inc., S193493 (opinion below H034826, formerly 194 Cal.App.4th 584), review granted 8/10/11.
What Are the Governing Laws Regarding the Conversion of a Mobilehome Park in the Coastal Zone? (1) Do the Mello Act (Gov. Code, §§ 65590, 65590.1) and the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.) apply to the conversion of a mobilehome park to resident ownership if the park is located within the coastal zone? (2) Do the limits imposed by Gov. Code § 66427.5 on the scope of a hearing on an application for conversion of such a mobilehome park to resident ownership prohibit the local authority from requiring compliance with the Mello Act and the California Coastal Act when the mobilehome park is located within the coastal zone? Pacific Palisades Bowl Mobile Estates v. City of Los Angeles, S187243 (opinion below B216515, formerly 187 Cal.App.4th 1461), review granted 12/1/10. The petition for review is here.
Can Voluntary School Personnel Provide Insulin Shots To Students? (1) Under California law, are designated school personnel who are not licensed nurses allowed to administer insulin to diabetic students pursuant to treating physicians’ orders under a Section 504 Plan (29 U.S.C. § 794; 34 C.F.R. § 104.1 et seq.) or an Individualized Education Program (20 U.S.C. §1414(d))? (2) If not, is California law preempted by federal law? American Nurses Ass. v. O'Connell, S184583 (opinion below C061150, formerly 185 Cal.App.4th 393), review granted 9/29/10. The petition for review is here.
California Supreme Court Civil Issues Pending: Taxation and Assessments
[UPDATED THROUGH APRIL26, 2012]
Can a Corporation Correct Its Suspended Status and Salvage an Appeal Initiated While Suspended? If a corporation’s corporate status is suspended due to nonpayment of taxes at the time it files a notice of appeal, can the appeal proceed if the corporation thereafter revives its status even if it does not do so until the time for filing the notice of appeal has expired? Bourhis v. Lord, S199887 and S199889 (opinions below, A133177 and A132136, respectfully, each nonpublished), review granted 3/21/12.
Is a Levy by a Fire Protection District Valid? Was the levy imposed by defendant for the purpose of funding fire protection services a valid assessment within the meaning of California Constitution, article XIII D, section 2, subdivision (b)? Concerned Citizens for Responsible Government v. West Point Fire Protection Dist., S195152 (opinion below C061110, formerly 196 Cal.App.4th 1427, review granted on 10/19/11.
How Are Emission Reduction Credits Affected by Limitations on the Taxation of Intangible Property? How do limitations on the taxation of intangible property (see Cal. Const., art. XIII, § 2; Rev. & Tax. Code, §§ 110, 212; Roehm v. County of Orange (1948) 32 Cal.2d 280) apply to the assessment of a power plant subject to annual assessment by the State Board of Equalization (Cal. Const., art. XIII, § 19), when the owner of the plant used emission reduction credits (see Health & Saf. Code, § 40709) to offset its emissions and obtain authorization to construct the plant? Elk Hills Power, LLC v. Board of Equalization, S194121 (opinion below D056943, formerly 195 Cal.App.4th 285), review granted 8/24/11.
Can a County Include Monies Diverted to a City Under Rev. & Tax Code §§ 97.68 and 97.70 When Determining Its Share of County Costs? Does Revenue and Taxation Code § 97.75 prohibit a county from taking into account property tax revenues diverted from the county’s Educational Revenue Augmentation Fund to a city under §§ 97.68 and 97.70 when determining, pursuant to § 95.3, the city’s share of costs incurred by the county in the assessment, collection, and allocation of property taxes? City of Alhambra v. County of Los Angeles, S185457 (opinion below B218347, formerly 186 Cal.App.4th 537), review granted 10/20/10. The petition for review is here.
Can a Consumer Sue a Retailer For Erroneously Charging Sales Tax? Does art. XIII, § 32 of the California Constitution or Rev. and Tax. Code § 6932 bar a consumer from filing a lawsuit against a retailer under the Unfair Competition Law (Bus. & Prof. Code §§ 17200 et seq.) or the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) alleging that the retailer charged sales tax on transactions that were not taxable? Loeffler v. Target Corp., S173972 (opinion below B199287, formerly 173 Cal.App.4th 1229), review granted 9/9/09. Update: 11/19/09: Review granted in Yabsley v. Cingular Wireless, LLC, S176146 (opinion below B198827, formerly 176 Cal.App.4th 1156), and briefing deferred pending decision in Loeffler.
Does Voucher From Designated Agency Constitute Conclusive or Prima Facie Evidence that Employer Is Entitled to Enterprise Zone Tax Credit? (1) When an employer claims an income tax credit under Revenue and Taxation Code section 23622.7 for wages allegedly paid to a “qualified employee” in an enterprise zone, does the certifying voucher obtained from a designated public agency constitute conclusive proof the employer is entitled to the tax credit? (2) If not, does the voucher constitute prima facie evidence that the employer is entitled to the credit and shift to the Franchise Tax Board the burden of proving that the employee was not a “qualified employee”? Dicon Fiberoptics v. Franchise Tax Bd., S173860 (opinion below B202997, formerly 173 Cal.App.4th 1082), review granted 8/19/09. Update 2/1/12: Oral argument scheduled for March 6, 2012. The briefs are here. Update March 6, 2012: Case argued and submitted. Update April 26, 2012: Opinion issued. The Court reversed the lower court’s holding that a certification issued by a governmental agency for purposes of the hiring tax credit under Revenue and Taxation Code section 23622.7 constitutes “prima facie proof of a worker is a ‘qualified employee,’ “which shifts to the Franchise Tax board the “burden of demonstrating an employee is not a qualified worker for which no voucher should have issued.” In all other respects, the Franchise Tax Board does not challenge the Court of Appeal’s judgment, and it is affirmed.
California Supreme Court Civil Issues Pending: Civil Rights
[UPDATED THROUGH APRIL 18, 2012]
Can a Public Records Request Be Used to Obtain the Names of Officers in an On-Duty Shooting? Are the names of police officers involved in on-duty shooting incidents subject to disclosure under the California Public Records Act? Long Beach Police Officers Assn. v. City of Long Beach, S200872 (opinion below B231245, formerly 203 Cal.App.4th 292), review granted 4/18/12.
When Are Local Ordinances Banning or Regulating Medical Marijuana Dispensaries Preempted by Federal or State Law? The Supreme Court has accepted review in four cases to address this issue:
City of Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc., S198638 (opinion below E052400, formerly 200 Cal.App.4th 885), review granted 1/18/12.
People v. G3 Holistic, Inc., S198395 (opinion below E051663, nonpublished), review granted 1/18/12.
Pack v. Superior Court, S197169 (opinion below B228781, formerly 199 Cal.App.4th 1070), review granted 1/18/12.
Traudt v. City of Dana Point, S197700 (opinion below G044130, formerly 199 Cal.App.4th 886), review granted 1/18/12.
Which County Records of Public Land Use Are Subject to the Public Records Act?
Is Orange County’s computer database of public land records exempt from disclosure under the Public Records Act (Gov. Code, § 6250 et seq.) as a “computer mapping system[]” (Gov. Code, § 6254.9, subd. (b)), or is that term limited to computer programs that read such a database? Sierra Club v. Superior Court, S194708. (opinion below G044138, formerly 195 Cal.App.4th 1537), petition granted on 9/14/11.
Under What Conditions Must the State Bar Disclose Collected Information?
The court limited review to the following issues: (1) What ground, if any, exists for
finding that the information sought by plaintiffs is information that is subject to public disclosure? (2) What is the effect, if any, of the representation of confidentiality made by the State Bar to the individuals from whom the information was collected? (3) Does the form in which the requested information is regularly maintained affect whether the State Bar must provide the requested information? Sander v. State Bar of California, S194951 (opinion below, A128647, formerly 196 Cal.App.4th 614), review granted 8/25/11.
Can the State Require a Private Property Owner to Provide Access to Unwanted Protesters?
(1) Did the Court of Appeal err in concluding that the parking area and walkway in front of the entrance to plaintiff’s retail store, which is part of a larger shopping center, do not constitute a public forum under Robins v. Pruneyard Shopping Center and its progeny? (2) Do the Moscone Act (CCP § 527.3) and Labor Code §1138.1, which limit the availability of injunctive relief in labor disputes, violate the First and Fourteenth Amendments of the United States Constitution because they afford preferential treatment to speech concerning labor disputes over speech about other issues?Ralphs Grocery v. United Food & Commercial Workers Union, S185544 (opinion below, C060413, formerly 186 Cal.App.4th 1078), review granted 9/29/10. The petition for review is here. Update 4/13/11: review granted in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, S191251 (opinion below F058716, formerly 192 Cal.App.4th 200), with briefing deferred pending the decision in Ralphs Grocery v. United Food & Commercial Workers Union.
California Supreme Court Civil Issues Pending: Environmental
[UPDATED THROUGH MAY 1, 2012]
Does a Failed Request for Funds Satisfy a State Agency’s Duty To Mitigate Off-Site Impacts? Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible? City of San Diego v. Trustees of the California State University, S199557 (opinion below D057446, formerly 201 Cal.App.4th 1134). Review granted 4/18/12.
Can the Trial Court Properly Deny a Motion to Amend a 1961 Judgment Which Imposes a “Physical Solution” on the West Coast Water Basin Without an Evidentiary Hearing on the Merits? The Court granted review without identifying an issue on review and deferred briefing pending further order of the Court. The Court of Appeal held that the trial court had jurisdiction to hear the motion, but erred in denying the motion without an evidentiary hearing out of concern that certain express and implied findings in the proposed amendment might ultimately be inconsistent with any later EIR under CEQA. Hillside Memorial Park & Mortuary v. Golden State Water Co., S197767 (opinion below B225058, formerly 199 Cal.App.4th 658), review granted 12/21/11.
Can an Air Quality District Require the Use of Currently Non-Existent Technologies or Unused New Applications? (1) Does Health and Safety Code section 40440, which requires an air quality district to adopt rules requiring use of the “best available retrofit control technology” for air pollution, authorize the district to require technology that does not yet exist? (2) Is technology “available” if it exists and is being used for some, but not all, applications within a particular product category? National Paint & Coatings Assn., Inc. v. South Coast Air Quality Management Dist., S177823 (opinion below G040122, formerly 177 Cal.App.4th 1494), review granted 1/21/10. The petition for review is here. Update 4/6/10: Case retitled as American Coatings Association v. South Coast Air Quality Management District. Update 4/5/12: Oral argument scheduled for 5/1/12. Update 5/1/12: Cause argued and submitted.
California Supreme Court Civil Issues Pending: Civil Procedure/Evidence/Discovery
[UPDATED THROUGH MAY 3, 2012]
When Are Local Ordinances Banning or Regulating Medical Marijuana Dispensaries Preempted by Federal or State Law? The Supreme Court has accepted review in four cases to address this issue:
City of Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc., S198638 (opinion below E052400, formerly 200 Cal.App.4th 885), review granted 1/18/12.
People v. G3 Holistic, Inc., S198395 (opinion below E051663, nonpublished), review granted 1/18/12.
Pack v. Superior Court, S197169 (opinion below B228781, formerly 199 Cal.App.4th 1070), review granted 1/18/12.
Traudt v. City of Dana Point, S197700 (opinion below G044130, formerly 199 Cal.App.4th 886), review granted 1/18/12.
What Constitutes Substantial Compliance with the Requirement to Present a Malpractice Claim Against the County? Did plaintiff substantially comply with the statutory requirement that her claim against the county for medical negligence be presented “to the clerk, secretary or auditor thereof” or mailed to “the governing body” (Gov. Code, § 915, subd. (a)) by delivering the claim to the risk management department of the county hospital where the injury allegedly occurred? DiCampli-Mintz v. County of Santa Clara, S194501 (opinion below H034160, formerly 195 Cal.App.4th 1327), review granted 8/10/11.
Was Expert Witness Addressing Lost Profits Regarding an Unmarketed Product Properly Excluded as Speculative? Did the trial court err in excluding proffered expert opinion testimony regarding lost profits? Sargon Enterprises, Inc. v. University of Southern California, S191550 (Opinion below, B202789, nonpublished), review granted April 27, 2011.
Is a Contemporaneous Factual Misrepresentation of Contract Terms Admissible Under the Parol Evidence Rule? Does the fraud exception to the parol evidence rule permit evidence of a contemporaneous factual misrepresentation as to the terms contained in a written agreement at the time of execution, or is such evidence inadmissible under Bank of America National Trust & Savings Association v. Pendergrass (1935) 4 Cal.2d 258, 263, as “a promise directly at variance with the promise of the writing”? Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn., S190581 (opinion below F058434, formerly 191 Cal.App.4th 611), review granted 4/20/11.
Which Law Controls Whether a Dissolved Corporation Lacks the Capacity To Be Sued? Does Cal. Corp. Code § 2010 or Del. Gen. Corp. Law § 278 control whether a California plaintiff alleging personal injuries from asbestos can pursue a claim against a dissolved Delaware corporation when the complaint was filed more than three years after the dissolution of the corporation? Greb v. Diamond International, S183365, (prior opinion A125472, formerly 184 Cal.App.4th 15), review granted 8/18/10. The petition for review is here.
When Are Witness Statements Protected as Work Product? Is the statement of a witness that is taken in writing or otherwise recorded verbatim by an attorney or the attorney’s representative entitled to the protection of the California work product privilege? Coito v. Superior Court, S181712 (opinion below F057690, formerly 182 Cal.App.4th 758), review granted 6/9/10. Update 5/3/12: Oral argument scheduled for 5/31/12.
California Supreme Court Civil Issues Pending: Appeals & Writs
[UPDATED THROUGH JANUARY 10, 2012]
(There are currently no cases in this category.)
California Supreme Court Civil Issues Pending: B & P 17200/Class Actions/Commercial
[UPDATED THROUGH MAY 3, 2012]
Does the FAA Preempt State Consumer Protections Against Mandatory Arbitration? Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable? Sanchez v. Valencia Holding Co. LLC, S199119 (opinion below B228027, formerly 201 Cal.App.4th 74), review granted 3/21/12.
Can a Corporation Correct Its Suspended Status and Salvage an Appeal Initiated While Suspended? If a corporation’s corporate status is suspended due to nonpayment of taxes at the time it files a notice of appeal, can the appeal proceed if the corporation thereafter revives its status even if it does not do so until the time for filing the notice of appeal has expired? Bourhis v. Lord, S199887 and S199889 (opinions below, A133177 and A132136, respectfully, each nonpublished), review granted 3/21/12.
Can a Trustee Set Aside a Foreclosure Sale Based on an Error During Foreclosure Proceedings? The Court of Appeal reversed the a civil judgment which raised this issue:
When a trustee makes an error in the processing and announcement of a beneficiary’s “credit bid” during foreclosure proceedings on a deed of trust, and the trustee has not yet issued a trustee’s deed to the highest bidder at the foreclosure sale, does the trustee have the discretionary authority to set aside the foreclosure sale due to that error? Biancalana v. T.D. Service Co., S198562. (opinion below H035400, formerly 200 Cal.App.4th 527), review granted 2/15/12.
Can Attempts to Prolong Patent Life be Challenged Under the Cartwright Act?
May a suit under the Cartwright Antitrust Act (Bus. & Prof. Code, § 16720 et seq.) be brought to challenge “reverse exclusionary payments” made by pharmaceutical manufacturers to settle patent litigation with generic drug producers and prolong the life of the patents in question? In re Cipro Cases I & II, S198616 (opinion below D056361, formerly 200 Cal.App.4th 442), review granted 2/15/12.
Are Claims of State Labor and Insurance Laws Violations Preempted by the Federal Aviation Administration Authorization Act? Is an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that is based on a trucking company’s alleged violation of state labor and insurance laws “related to the price, route, or service” of the company and, therefore, preempted by the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501)? People ex re. Harris v. Pac Anchor Transportation, Inc., S194388 (opinion below B220966, formerly 195 Cal.App.4th 765), review granted 8/10/11.
Is a Contemporaneous Factual Misrepresentation of Contract Terms Admissible Under the Parol Evidence Rule? Does the fraud exception to the parol evidence rule permit evidence of a contemporaneous factual misrepresentation as to the terms contained in a written agreement at the time of execution, or is such evidence inadmissible under Bank of America National Trust & Savings Association v. Pendergrass (1935) 4 Cal.2d 258, 263, as “a promise directly at variance with the promise of the writing”? Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn., S190581 (opinion below F058434, formerly 191 Cal.App.4th 611), review granted 4/20/11.
To What Degree Can the Reach of a §17200 Action Be Extended by the Continuing Violation Doctrine, the Accrual Doctrine and the Delayed Discovery Rule?
(1) May the continuing violation doctrine, under which a defendant may be held liable for actions that take place outside the limitations period if those actions are sufficiently linked to unlawful conduct within the limitations period, be asserted in an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.)? (2) May the continuous accrual doctrine, under which each violation of a periodic obligation or duty is deemed to give rise to a separate cause of action that accrues at the time of the individual wrong, be asserted in such an action? (3) May the delayed discovery rule, under which a cause of action does not accrue until a reasonable person in the plaintiff’s position has actual or constructive knowledge of facts giving rise to a claim, be asserted in such an action? Aryeh v. Canon Business Solutions, Inc., S184929 (opinion below B213104, formerly 185 Cal.App.4th 1159), review granted 10/20/10. The petition for review is here.
Is Civil Code § 1748.9 Preempted by Federal Law Re Use of Convenience Checks? Does the National Bank Act (12 U.S.C. § 21 et seq.) preempt Civil Code § 1748.9, which requires specific types of notice to consumers regarding the use of convenience checks as cash advances on credit card accounts? Also, is 12 C.F.R § 7.4008, promulgated under the National Bank Act by the Office of the Comptroller of the Currency, and which provides that state laws that impair a nationally chartered bank’s non real-estate banking powers are not applicable to nationally chartered banks, a valid regulation? Parks v. MBNA American Bank, S183703 (opinion below G040798, formerly 184 Cal.App.4th 652),review granted 9/1/10. The petition for review is here. Update 4/25/12: The Court requested the parties to file simultaneous letter briefs addressing the significance, if any, of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L. No. 111-203 (July 21, 2010) 124 Stat. 1376) and the Office of the Comptroller of the Currency’s regulatory response. Update 5/3/12: Oral argument is scheduled for 5/29/12.
Can an Insured Bring a §17200 Action Against Insurer? (1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, §17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action? Zhang v. S.C. (California Capital Insurance), S178542 (opinion below E047207, formerly 178 Cal.App.4th 1081), review granted 2/10/10. The petition for review is here. Update 9/28/11: Review granted in Hughes v. Progressive Direct Ins. Co., S195069 (opinion below B224990, formerly 196 Cal.App.4th 754), with briefing deferred pending the decision in Zhang.
Can a Consumer Sue a Retailer For Erroneously Charging Sales Tax? Does art. XIII, § 32 of the California Constitution or Rev. and Tax. Code § 6932 bar a consumer from filing a lawsuit against a retailer under the Unfair Competition Law (Bus. & Prof. Code §§ 17200 et seq.) or the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) alleging that the retailer charged sales tax on transactions that were not taxable? Loeffler v. Target Corp., S173972 (opinion below B199287, formerly 173 Cal.App.4th 1229), review granted 9/9/09. Update: 11/19/09: Review granted inYabsley v. Cingular Wireless, LLC, S176146 (opinion below B198827, formerly 176 Cal.App.4th 1156), briefing deferred pending decision in Loeffler.
California Supreme Court Civil Issues Pending: Damages
[UPDATED THROUGH NOVEMBER 2, 2011]
Was Expert Witness Addressing Lost Profits Regarding an Unmarketed Product Properly Excluded as Speculative? Did the trial court err in excluding proffered expert opinion testimony regarding lost profits? Sargon Enterprises, Inc. v. University of Southern California, S191550 (Opinion below, B202789, nonpublished), review granted April 27, 2011.
California Supreme Court Civil Issues Pending: Attorney Related
[UPDATED THROUGH DECEMBER 7, 2011]
Under What Conditions Must the State Bar Disclose Collected Information?
The court limited review to the following issues: (1) What ground, if any, exists for
finding that the information sought by plaintiffs is information that is subject to public disclosure? (2) What is the effect, if any, of the representation of confidentiality made by the State Bar to the individuals from whom the information was collected? (3) Does the form in which the requested information is regularly maintained affect whether the State Bar must provide the requested information? Sander v. State Bar of California, S194951 (opinion below, A128647, formerly 196 Cal.App.4th 614), review granted 8/25/11.
Is a Claim For Attorney’s Fees by a Prevailing Defendant Preempted by the Americans with Disabilities Act? Is a defendant who defeats claims for injunctive relief under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA) and the California Disabled Persons Act (Civ. Code, § 54 et seq.) entitled to attorney’s fees under Civil Code § 55, or does the ADA limit the ability to recover such fees? Jankey v. Lee, S180890 (opinion below A123006, formerly 181 Cal.App.4th 1173), review granted 5/12/10.
California Supreme Court Civil Issues Pending: ADR
[UPDATED THROUGH MAY 3, 2012]
Is Arbitration Clause in Employment Application Valid? Is an arbitration clause in an employment application that provides “I agree to submit to binding arbitration all disputes and claims arising out of the submission of this application” unenforceable as substantively unconscionable for lack of mutuality, or does the language create a mutual agreement to arbitrate all such disputes? (See Roman v. Superior Court (2009) 172 Cal.App.4th 1462.) Wisdom v. Accentcare, Inc., S200128. (opinion below C065744, formerly 202 Cal.App.4th 591), review granted 3/28/12.
Does the FAA Preempt State Consumer Protections Against Mandatory Arbitration? Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable? Sanchez v. Valencia Holding Co. LLC, S199119 (opinion below B228027, formerly 201 Cal.App.4th 74), review granted 3/21/12.
Case remanded from the USSC – Can Arbitration Over a Wage Claim be Compelled Prior to the Conclusion of the Administrative Proceedings of the Labor Commissioner? The trial court denying a motion to compel arbitration, and the Court of Appeal reversed. The California Supreme Court granted review on these issues: (1) Can a mandatory employment arbitration agreement be enforced prior to the conclusion of an administrative proceeding conducted by the Labor Commissioner concerning an employee’s statutory wage claim? (2) Was the Labor Commissioner’s jurisdiction over employee’s statutory wage claim divested by the Federal Arbitration Act under Preston v. Ferrer (2008) __ U.S. __, 128 S.Ct. 978, 169 L.Ed.2d 917? Sonic-Calabasas A, Inc. v. Moreno, S174475 (opinion below B204902, formerly 174 Cal.App.4th 546), petition granted 9/9/09. The California Supreme Court issued its opinion on 2/24/11, reversing the Court of Appeal and reinstating the trial court’s order that “until there has been the preliminary non-binding hearing and decision by the Labor Commissioner, the arbitration provisions of the employment contract are unenforceable, and any petition to compel arbitration is premature and must be denied.” Update 11/3/11: The U.S. Supreme Court granted the petition for writ of certiorari, vacated the existing judgment and remanded for further consideration in light of AT&T Mobility LLC v. Concepcion, ___ U.S.__ (2011). Update 1/11/12: The California Supreme Court ordered to parties to submit supplemental briefing by 2/10/12 with replies due by 2/24/12. The parties requested extensions.
Can City’s Salary-Setting and Budget-Making Powers Be Subject to Arbitration?
Could grievances challenging the imposition of furloughs on employees covered by a ratified Memorandum of Understanding be referred to arbitration in accordance with the agreement, as ordered by the trial court, or was arbitration barred as an improper delegation of the city’s discretionary salary-setting and budget-making powers, as held by the Court of Appeal? City of Los Angeles v. Superior Court, S192828 (opinion below B228732, formerly 193 Cal.App.4th 1159), review granted 7/13/11.
Is a Homeowners Association Bound to an Arbitration Agreement Executed Before the HOA Existed? And, Can Unconscionability Be Applied to the Arbitration Provisions Only? (1) Is a homeowners association bound by an arbitration provision contained in the covenants, conditions and restrictions for a common interest development that were executed and recorded prior to the time the association came into existence? (2) Did the Court of Appeal err by applying the state law doctrine of unconscionability only to the arbitration provision, and not to other provisions in the covenants, conditions and restrictions, in light of federal law prohibiting the application of state law to treat arbitration provisions differently from other provisions of the same agreement? (See Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265.) Pinnacle Museum Tower Association v. Pinnacle Market Development, S186149 (opinion below D055422, formerly 187 Cal.App.4th 24 ), review granted 11/10/10. The petition for review is here. ]. Update 4/20/11: Review granted in Villa Vicenza Homeowners Assn. v. Nobel Court Development, LLC, S190805. (opinion below D054550, formerly 191 Cal.App.4th 963), with briefing deferred pending the decision in Pinnacle Museum Tower Association. Update 8/10/11: Review granted in Diaz v. Bunkey, S194150 (opinion below B225548, formerly 195 Cal.App.4th 315, as modified), with briefing deferred pending Pinnacle Museum Tower Association. Update 1/25/12: Review granted in Promenade at Playa Vista Homeowners Assn. v. Western Pacific Housing, Inc., S198722 (opinion below B225086, formerly 200 Cal.App.4th 849), with briefing deferred pending Pinnacle Museum Tower Association. Update 1/25/12: Review granted in Promenade at Playa Vista Homeowners Assn. v. Western Pacific Housing, Inc., S198722 (opinion below B225086, formerly 200 Cal.App.4th 849), with briefing deferred pending Pinnacle Museum Tower Association. Update 5/3/12: Oral argument scheduled for 5/29/12.
Can Arbitration Be Compelled Over Granting a Charter School Petition? Can a school district be required to arbitrate disputes over the granting of a charter school petition under the terms of a collective bargaining agreement, or does Education Code § 47611.5(e), preclude referring such a dispute to arbitration? United Teachers Los Angeles v. Los Angeles Unified School Dist., S177403 (opinion below B214119, formerly 177 Cal.App.4th 863), review granted 12/23/09. Update 11/10/10: Review granted in California Teachers Association v. Governing Board, S185651, (opinion below H033788, formerly 187 Cal.App.4th 81), briefing deferred pending review in United Teachers Los Angeles. Update 4/5/12: Oral argument scheduled for 5/1/12. Update 5/1/12: Cause argued and submitted.
California Supreme Court Civil Issues Pending: Torts & Products
[UPDATED THROUGH MAY 3, 2012]
How Does Primary Assumption of the Risk Apply to Amusement Park Rides?
(1) Does the existence of a state regulatory scheme for amusement parks preclude application of the doctrine of “primary assumption of risk” with respect to the park’s operation of a bumper car ride? (2) Does the doctrine apply to bar recovery by a rider of a bumper car ride against the owner of an amusement park or is the doctrine limited to “active sports”? (3) Are owners of amusement parks subject to a special version of the doctrine that imposes upon them a duty to take steps to eliminate or decrease any risks inherent in their rides? Nalwa v. Cedar Fair, L.P., S195031 (opinion below H034535, formerly 196 Cal.App.4th 566), review granted 8/31/11.
Can the Tactical Conduct and Decisions Support Liability when Deadly Force Is Used by Law Enforcement? In response to a request under C.R.C., rule 8.548 by the United States Court of Appeals for the Ninth Circuit, the court will address this issue: “Whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.” Hayes v. County of San Diego, S193997 (request at 9th Cir. No. 09-55644; __ F.3d __, 2011 WL 2315191), certification granted on 8/10/11.
Does Labor Code § 4558 Allow a Loss on Consortium Claim by the Spouse of the Injured Worker? Can the spouse of an injured worker claim damages for loss of consortium in an action at law brought by the injured worker under Labor Code § 4558 for damages allegedly caused by an employer’s knowing removal of or failure to install a safety guard on a power press? LeFiell Manufacturing Co. v. Superior Court, S192759 (opinion below B226240, formerly 193 Cal.App.4th 1413, an appeal from the L.A. Superior Court), review granted 6/22/11. Update 5/3/12: Oral argument is scheduled for 6/5/12.
How Do Changes in Joint and Several Liability Law Affect the Rule That the Release for Consideration of One Joint Tortfeasor Releases Them All? Should the common law rule that a release for consideration of one joint tortfeasor operates as a release of the joint and several liability of all joint tortfeasors be abandoned in light of statutory and case law modifications of the joint and several liability rule? Leung v. Verdugo Hills Hospital, S192768 (Opinion below B204908, formerly 193 Cal.App.4th 971), review granted 6/8/11. Update 5/3/12: Oral argument is scheduled for 5/29/12.
What is the Potential Liability of a Host Who Collects Admission to an Open Residential Party Where Alcohol Is Served? (1) Is a person who hosts a party at a residence, and who furnishes alcoholic beverages and charges an admission fee to uninvited guests, a “social host” within the meaning of Civil Code § 1714(c), and hence immune from civil liability for furnishing alcoholic beverages? (2) Under the circumstances here, does such a person fall within an exception stated by Business and Professions Code § 25602.1 to the ordinary immunity from civil liability for furnishing alcoholic beverages provided by Business and Professions Code § 25602(b)? Ennabe v. Manosa, S189577 (opinion below B222784, formerly 190 Cal.App.4th 707), petition for review granted 3/23/11.
California Supreme Court Civil Issues Pending: Insurance
[UPDATED THROUGH MAY 3, 2012]
Can an Insured Bring a §17200 Action Against Insurer? (1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, §17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action? Zhang v. S.C. (California Capital Insurance), S178542 (opinion below E047207, formerly 178 Cal.App.4th 1081), review granted 2/10/10. The petition for review is here. Update 9/28/11: Review granted in Hughes v. Progressive Direct Ins. Co., S195069 (opinion below B224990, formerly 196 Cal.App.4th 754), with briefing deferred pending the decision in Zhang.
Multiple Insurance Policies Applied To Continuous Damage. (1) When continuous property damage occurs during the periods of several successive liability policies, is each insurer liable for all damage both during and outside its period up to the amount of the insurer’s policy limits? (2) If so, is the “stacking” of limits—i.e., obtaining the limits of successive policies—permitted? State of California v. Continental Ins. Co., S170560 (opinion below E041425, formerly 170 Cal.App.4th 160, as modified, as further modified), review granted 3/18/09. The petition for review is here. Update 8/24/11: Review granted in Kaiser Cement & Gypsum Corp. v. Insurance Co. of State of Pennsylvania, S194724 (opinion below B222310, formerly 196 Cal.App.4th 140). Briefing deferred pending State of California v. Continental Ins. Co. Update 5/3/12: Oral argument scheduled for 5/30/12.
California Supreme Court Civil Issues Pending: Employment - Other
[UPDATED THROUGH MAY 3, 2012]
Is Arbitration Clause in Employment Application Valid? Is an arbitration clause in an employment application that provides “I agree to submit to binding arbitration all disputes and claims arising out of the submission of this application” unenforceable as substantively unconscionable for lack of mutuality, or does the language create a mutual agreement to arbitrate all such disputes? (See Roman v. Superior Court (2009) 172 Cal.App.4th 1462.) Wisdom v. Accentcare, Inc., S200128. (opinion below C065744, formerly 202 Cal.App.4th 591), review granted 3/28/12.
Does Use of False Documents to Obtain Employment Bar Claims under the Fair Employment and Housing Act? Did the trial court err in dismissing plaintiff’s claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff’s use of false documentation to obtain employment in the first instance? Did Senate Bill No. 1818 (2001–2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000; Lab. Code, § 1171.5.) Salas v. Sierra Chemical Co., S196568 (opinion below C064627, formerly 198 Cal.App.4th 29), petition granted 11/16/11.
Are Claims of State Labor and Insurance Laws Violations Preempted by the Federal Aviation Administration Authorization Act? Is an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that is based on a trucking company’s alleged violation of state labor and insurance laws “related to the price, route, or service” of the company and, therefore, preempted by the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501)? People ex re. Harris v. Pac Anchor Transportation, Inc., S194388 (opinion below B220966, formerly 195 Cal.App.4th 765), review granted 8/10/11.
Can City’s Salary-Setting and Budget-Making Powers Be Subject to Arbitration?
Could grievances challenging the imposition of furloughs on employees covered by a ratified Memorandum of Understanding be referred to arbitration in accordance with the agreement, as ordered by the trial court, or was arbitration barred as an improper delegation of the city’s discretionary salary-setting and budget-making powers, as held by the Court of Appeal? City of Los Angeles v. Superior Court, S192828 (opinion below B228732, formerly 193 Cal.App.4th 1159), review granted 7/13/11.
Does Labor Code § 4558 Allow a Loss on Consortium Claim by the Spouse of the Injured Worker? Can the spouse of an injured worker claim damages for loss of consortium in an action at law brought by the injured worker under Labor Code § 4558 for damages allegedly caused by an employer’s knowing removal of or failure to install a safety guard on a power press? LeFiell Manufacturing Co. v. Superior Court, S192759 (opinion below B226240, formerly 193 Cal.App.4th 1413, an appeal from the L.A. Superior Court), review granted 6/22/11. Update 5/3/12: Oral argument scheduled for 6/5/12.
Resolving the Conflict Between the Privacy of Non-Union Public Employees and the Union Obligation to Represent Entire Bargaining Unit. (1) Under the state Constitution (Cal. Const., art. I, § 1), do the interests of non-union-member public employees in the privacy of their personal contact information outweigh the interests of the union representing their bargaining unit in obtaining that information in furtherance of its duties as a matter of labor law to provide fair and equal representation of union-member and non-union-member employees within the bargaining unit? (2) Did the Court of Appeal err in remanding to the trial court with directions to apply a specific notice procedure to protect such employees’ privacy rights instead of permitting the parties to determine the proper procedure for doing so? County of Los Angeles v. Los Angeles County Employee Relations Comm., S191944 (opinion below, B217668, formerly 192 Cal.App.4th 1409), review granted 6/15/11.
Can the State Require a Private Property Owner to Provide Access to Unwanted Protesters?
(1) Did the Court of Appeal err in concluding that the parking area and walkway in front of the entrance to plaintiff’s retail store, which is part of a larger shopping center, do not constitute a public forum under Robins v. Pruneyard Shopping Center and its progeny? (2) Do the Moscone Act (CCP § 527.3) and Labor Code §1138.1, which limit the availability of injunctive relief in labor disputes, violate the First and Fourteenth Amendments of the United States Constitution because they afford preferential treatment to speech concerning labor disputes over speech about other issues?Ralphs Grocery v. United Food & Commercial Workers Union, S185544 (opinion below, C060413, formerly 186 Cal.App.4th 1078), review granted 9/29/10. The petition for review is here. Update 4/13/11: Review granted in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, S191251 (opinion below F058716, formerly 192 Cal.App.4th 200), with briefing deferred pending the decision in Ralphs Grocery v. United Food & Commercial Workers Union.
Is An Employer Entitled To A Jury Instruction On Mixed Motives For Firing An At-Will Employee? Does the “mixed-motive” defense apply to employment discrimination claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)? Harris v. City of Santa Monica, S181004 (opinion below B199571, formerly 181 Cal.App.4th 1094), review granted 4/22/10. The petition for review is here.
California Supreme Court Civil Issues Pending: Employment - Compensation & Benefits
[UPDATED THROUGH APRIL 30, 2012]
Case remanded from the USSC – Can Arbitration Over a Wage Claim be Compelled Prior to the Conclusion of the Administrative Proceedings of the Labor Commissioner? The trial court denying a motion to compel arbitration, and the Court of Appeal reversed. The California Supreme Court granted review on these issues: (1) Can a mandatory employment arbitration agreement be enforced prior to the conclusion of an administrative proceeding conducted by the Labor Commissioner concerning an employee’s statutory wage claim? (2) Was the Labor Commissioner’s jurisdiction over employee’s statutory wage claim divested by the Federal Arbitration Act under Preston v. Ferrer (2008) __ U.S. __, 128 S.Ct. 978, 169 L.Ed.2d 917? Sonic-Calabasas A, Inc. v. Moreno, S174475 (opinion below B204902, formerly 174 Cal.App.4th 546), petition granted 9/9/09. The California Supreme Court issued its opinion on 2/24/11, reversing the Court of Appeal and reinstating the trial court’s order that “until there has been the preliminary non-binding hearing and decision by the Labor Commissioner, the arbitration provisions of the employment contract are unenforceable, and any petition to compel arbitration is premature and must be denied.” Update 11/3/11: The U.S. Supreme Court granted the petition for writ of certiorari, vacated the existing judgment and remanded for further consideration in light of AT&T Mobility LLC v. Concepcion, ___ U.S.__ (2011). Update 1/11/12: The California Supreme Court ordered to parties to submit supplemental briefing by 2/10/12 with replies due by 2/24/12. The parties requested extensions.
Can Attorney’s Fees Be Awarded on a Meal and Rest Periods Claim in Light of Labor Code § 1194? The Court limited review to the following issues: (1) Does Labor Code § 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, § 226.7) or may attorney’s fees be awarded under Labor Code § 218.5? (2) Is the court's analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime? Kirby v. Immoos Fire Protection, Inc., S185827 (opinion below C062306, formerly; 186 Cal.App.4th 1361), review granted 11/17/10. The petition for review is here. Update 5/11/11: Review granted in United Parcel Service Wage & Hour Cases, S191908. (Opinion below B221709, formerly 192 Cal.App.4th 1425), with briefing deferred pending decision in Kirby. Update 12/21/11: Review granted in United Parcel Service Wage & Hour Cases, S197722. (opinion below, B227556; nonpublished), with briefing delayed pending decision in Kirby. Update 1/18/12: Review granted in Zelasko-Barrett v. Brayton-Purcell, LLP, S198438 (opinion below A131601, nonpublished opinion). Briefing deferred pending the decision in Kirby. Update 2/1/12: Oral argument scheduled for March 6, 2012. The briefs are here. Update March 6, 2012: Cause argued and submitted. Update 4/30/12: Opinion issued. The Court concluded that, in light of the relevant statutory language and legislative history, that neither § 1194 nor § 218.5 authorizes an award of attorney's fees to a party that prevails on a § 226.7 claim.
Application of Prevailing Wage Law to Public Works Project of Charter City. Does California’s prevailing wage law (Lab. Code, § 1720 et seq.) apply to a charter city when it contracts to construct public works projects with municipal funds? State Building & Construction Trades Council of California v. City of Vista, S173586 (opinion below D052181, formerly 173 Cal.App.4th 567), review granted 8/19/09. The petition for review is here. Update 9/1/10: Court limits issues per CRC 8.516: “Does the Prevailing Wage Law (Lab. Code, § 1720 et seq.) apply to charter cities?” The Court excluded argument on the issue of whether application of the Prevailing Wage Law to charter cities would constitute an unfunded state mandate within the meaning of article XIIIB, section 6 of the California Constitution. Update 2/29/12: Case ordered on calendar for hearing on 4/4/12. Update 4/4/12: Cause argued and submitted.
Employer’s Duty re Meal And Rest Breaks to Hourly Workers. What is an employer’s duty to provide meal and lunch breaks to hourly employees? Brinker Restaurant Corp. v. Sup. Ct. (Hohnbaum), S166350 (opinion below D049331, formerly 165 Cal.App.4th 25), review granted 10/22/08. The petition for review is here. Update 1/14/09:Review granted in Brinkley v. Public Storage, Inc., S168806 (opinion below B200513, formerly 167 Cal.App.4th 1278, as modified), with briefing deferred pending the decision in the first Brinker. Update 5/13/09:Review granted in Bradley v. Networkers International LLC, S171257 (opinion below D052365, nonpublished), with briefing deferred pending a decision in the first Brinker. Update 10/13/10: Review granted in Faulkinbury v. Boyd & Associates, Inc., S184995 (opinion below G041702, formerly 185 Cal.App.4th 1363), with briefing deferred pending the decision in Brinker. Update 11/17/10: Review granted in Brookler v. Radioshack Corporation, S186357 (opinion below is unpublished B212893), with briefing deferred pending the decision in Brinker. Update 1/26/11: Review granted in Hernandez v. Chipotle Mexican Grill, S188755 (opinion below B216004, formerly 189 Cal.App.4th 751), with briefing deferred pending a decision in Brinker. Update 5/18/11: Review granted in Tien v. Tenet Healthcare Corp., S191756. (Opinion below B214333, formerly 192 Cal.App.4th 1055), with briefing deferred pending a decision in Brinker. Update 9/28/11: Review granted in Santos v. Vitas Healthcare Corp. of California, S195866 (opinion below B222645, nonpublished), with briefing deferred until the decision in Brinker. Update 10/4/11: Oral argument is scheduled for 11/8/11. The briefs are posted here. Update 11/8/11: Case argued and submitted. Update April 11, 2012: Review granted in Muldrow v. Surrex Solutions Corp., S200557. (opinion below D057955, formerly 202 Cal.App.4th 1232), with briefing deferred pending a decision in Brinker. Update 4/12/12: Opinion issued. The Court affirmed the certification of a rest break subclass, remanded for reconsideration of a subclass on meal breaks and found there was no basis for certification on a subclass on requirements that employee work “off the clock.” While the Court further held that trial courts were not obligated to resolve threshold issues except insofar as the class certification issue required it, the Court did conclude that while an employer had an obligation to actually relieve its employee of all duty for required breaks, the employer had no duty to ensure that no work is done.
