California Supreme Court Civil Issues Pending: B & P 17200/Class Actions/Commercial
[UPDATED THROUGH MAY 7, 2013]
What Makes a Valid Class When Challenging Status as Employees v. Independent Contractors? After the Court of Appeal affirmed in part and reversed in part an order denying class certification, the Court accepted review on questions concerning the determination of whether common issues predominate in a proposed class action relating to claims that turn on whether members of the putative class are independent contractors or employees. Ayala v. Antelope Valley Newspapers, Inc. S206874 (opinion below B235484, formerly 210 Cal.App.4th 77). Review was granted on 1/30/13.
Is a Commercial Property Owner Required to Maintain a Defibrillator?
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: In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator (‘AED’) for cases of sudden cardiac arrest? Verdugo v. Target Corp., S207313 (the 9th Cir. order, No. 10-57008; __ F.3d __, 2012 WL 6199193). Certification was granted on 1/16/13.
Does a Victory on Procedural Grounds Support Attorney Fees under Civil Code § 1717? After the Court of Appeal affirmed an award of attorney fees the Court granted review on the following issue: Is a party who obtains the dismissal of a contract action entirely on procedural grounds entitled to an award of attorney fees under Civil Code § 1717 as the prevailing party in an action on a contract? Kandy Kiss of California, Inc. v. Tex-Ellent, Inc., S206354 (opinion below B234541, formerly 209 Cal.App.4th 604). Review was granted on 1/16/13.
How Can Multistate Business Income Taxes Be Apportioned? After the Court of Appeal reversed the judgment in a civil action, the Court granted review on the following issue: Were multistate taxpayers required to apportion business income according to the formula set forth in Revenue and Taxation Code § 25128 as amended in 1993 or could they elect to apportion income according to the formula set forth in former Revenue and Taxation Code § 38006 pursuant to the adoption of the Multistate Tax Compact in 1974? The Gillette Co. v. Franchise Tax Bd., S206587 (opinion below, A130803, and opinion on rehearing, formerly 209 Cal.App.4th 938), review granted 1/16/13.
What is the Vicarious Liability of a Franchisor for the Tortious Conduct of a Supervising Employee of a Franchisee? After the Court of Appeal reversed a summary judgment, the court limited review to this issue: Whether the defendant franchisor is entitled to summary judgment on plaintiff’s claim that it is vicariously liable for tortious conduct by a supervising employee of a franchisee. Patterson v. Domino’s Pizza, LLC, S204543 (opinion below B235099, formerly 207 Cal.App.4th 385), review granted 10/10/12. Update 2/13/13: Review granted in Monarrez v. Automobile Club of Southern California, S207726 (opinion below B233512, formerly 211 Cal.App.4th 177, as modified 211 Cal.App.4th 701a). Briefing was deferred pending a decision in Patterson.
Do Forced Disclosures by Pharmaceutical Claims Processors Violate the California Constitution? 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 Cal. Civil Code § 2527 (which requires certain disclosures by prescription drug claims processors) compel speech in violation of art. I, § 2 of the California Constitution? Beeman v. Anthem Prescription Management, LLC, S203124. The request was made at 682 F.3d 779. Certification was granted on 7/18/12.
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. Update 5/9/12: Review granted in Buzenes v. Nuvell Financial Services, S200376 (opinion below B221870, nonpublished). Briefing deferred pending decision in Sanchez. Update 6/13/12: Review granted in Mayers v. Volt Management Corp., S200709 (opinion below G045036, formerly 203 Cal.App.4th 1194). Briefing deferred pending decision in Sanchez. Update 12/19/12: Review granted in Goodridge v. KDF Automotive Group, Inc., S206153 (opinion below D060269, formerly 209 Cal.App.4th 325), with briefing deferred pending the resolution of Sanchez.
Can a §17200 Claim Be Based on the Truth in Savings Act? After the Court of Appeal affirmed the judgment in a civil action, the Court granted review on this issue: Can a cause of action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) be predicated on an alleged violation of the Truth in Savings Act (12 U.S.C. § 4301 et seq.), despite Congress’s repeal of the private right of action initially provided for under that Act? Rose v. Bank of America, N.A., S199074 (opinion below B230859, formerly 200 Cal.App.4th 1441). Review was granted 3/14/12. Update 4/4/13: Oral argument scheduled for 5/7/13. Update 5/7/13: Cause argued and submitted. The briefs are here.
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. Update 3/7/13: Oral argument scheduled for 4/4/13. Update 4/4/13: Case argued and submitted. The briefs are here.
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.
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. Update 1/16/13: Review granted in Henderson v. Farmers Group, Inc., S207068 (opinion below B236259, formerly 210 Cal.App.4th 459). Briefing deferred pending resolution of Zhang. Update 4/4/13: Oral argument scheduled for 5/8/13. Update 5/8/13: Cause argued and submitted. The briefs are 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 inYabsley v. Cingular Wireless, LLC, S176146 (opinion below B198827, formerly 176 Cal.App.4th 1156), briefing deferred pending decision in Loeffler. Update 4/11/13: The Court requested supplemental briefing on the following issue: whether and, if so, in what manner the doctrine of primary jurisdiction (see Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 931-937), appropriately may be invoked and applied in the present case, including whether the issue was preserved in the trial and appellate courts and whether article XIII, section 32 of the California Constitution would be implicated by applying the doctrine.
