The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

Few issues have sparked so much debate in so many local governments then how to regulate the medical marijuana industry. Proponents have filed numerous challenges to various attempts by cities and counties, but now the legal, if not the political issue, has been resolved. In the lead case – City of Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc. – the unanimous Supreme Court has confirmed the power of local authorities to regulate, and even ban, facilities that distribute medical marijuana. The Court noted that the Compassionate Use Act of 1996 and the Medical Marijuana Program simply “removed certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate medical purposes.” This is not a mandate that such facilities must be allowed, nor an attempt by state government to dominate the field, and therefore these state laws do not preempt the constitutional right of cities and counties to exercise their police powers to regulate such facilities, or even ban them. As such, the City of Riverside ordinance which declares all marijuana dispensaries as a banned public nuisance, and which also bars any use which violates federal or state law, is valid. This limited view of these state laws as being “incremental steps” to increase access to medical marijuana, rather than signaling a more expansive reform, is wholly consistent with the Court’s previous ruling in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, in which the Court held that the medical marijuana laws did not protect a medical user from being discharged after failing a drug test.

As a result of this ruling, local debates will not necessarily be limited to how to best implement medical marijuana dispensaries. Now, medical marijuana proponents may have to defend the policy of allowing such dispensaries at all, city by city, county by county. However, establishing the power of local authorities to act goes a long way to allowing some resolution to take place. For example, an attempt by Los Angeles to regulate dispensaries in 2010 drew 66 lawsuits and a court injunction, with many of the suits challenging the city’s authority to act. (See, Los Angeles Times, 5/10/13.) Los Angeles was so shell shocked by this debate that it now has three separate measures on the ballot for the upcoming election, each proposing a different set of regulation and taxation policies for dispensaries, in the hopes that the public picks one with sufficient support to at least put some policy in place. However, now that the right to act has been confirmed, perhaps even Los Angeles will be able to reach a decision.
 

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In addition to the more typical criminal issues, the oral arguments scheduled for April 3 and 4 in L.A. will also address when to compel arbitration, foreclosure sales and hospital peer review.

On the April 3, the court has two arbitration cases scheduled. The Supreme Court will take a second look at Sonic-Calabasas A, Inc., having previously held that contractual arbitration of a wage claim could not be compelled until after the preliminary non-binding hearing and decision by the Labor Commissioner addressing the same claim. However, the U.S. Supreme Court has since vacated that judgment and ordered further consideration in light of AT&T Mobility LLC v. Concepcion (2011) 563 U.S.__, which upheld contractual arbitration under the FAA even when the arbitration provision was found unconscionable by state law because it barred class arbitration.

Also in an employment context, the court will address in City of Los Angeles whether grievances over imposed furloughs are subject to contractual arbitration, or whether that would be an improper transfer of the city’s discretionary salary-setting and budget-making powers.

On the next day, the court addresses two other issues, foreclosure sales and peer review. The trustee in Biancalana made an error in processing the beneficiary’s “credit bid” during foreclosure proceedings, and thereby announced a required opening bid only a tenth of the intended value. Since it had not yet issued the deed of trust to the highest bidder at the foreclosure sale when the error was discovered, can the trustee set aside the foreclosure sale?

In El-Attar, the Court will address whether the executive committee of the hospital medical staff can delegate to the hospital governing board its authority to designate a peer review panel, and if the review process needs to be restarted if it has already done so.

Look for opinions in each of these cases by July 2013, as the court typically issued opinions within 90 days of the case being submitted.
 

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In Riverisland Cold Storage, Inc., v. Fresno-Madera Prod. Credit Ass., S190581, the unanimous California Supreme Court recently overturned the widely criticized Pendergrass rule, thus restoring the full breadth of the fraud exception to the parol evidence rule. In 1935, the Court limited the fraud exception to the parole evidence rule - holding that evidence of a promise that was “directly at variance with the promise of the writing” was inadmissible.  (See, Pendergrass (1935) 4 Cal.2d 258, 263.)  This allowed defendants to demur to promissory fraud claims by citing the contract terms, or at least obtain summary judgment. This rule had put California in a minority of one, as it departed from the majority rule, the Restatement, and most treatises. Indeed, Riverisland concluded that Pendergrass is unsupported by the controlling statute (C.C.P. §1856), was contrary to then existing California law, has been widely criticized ever since (resulting in convoluted attempts to distinguish it), and can be used to shelter fraud (begging the question of how the Pendergrass rule managed to survive for nearly 80 years).

While there has been some hand wringing by potential defendants over losing the Pendergrass rule, and it will certainly be more difficult to resolve promissory fraud claims by demurrer or summary judgment, all is not lost. Consider:

1. California now follows the majority rule, so most of the country has already adapted to this holding.
2. Plaintiffs still have to meet the more demanding pleadings requirements for any fraud claim, and Riverisland confirms that the intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance.
3. In Rosenthal, 14 Cal.4th 394, the Court held that the negligent failure to read a contract precludes a finding that it is void for fraud, although the threshold for this showing might be lower for equitable relief.
4. Promissory fraud requires justifiable reliance on the defendant’s oral misrepresentation, which ties back into plaintiff’s negligent failure to read the contract.

The Supreme Court in Riverisland refused to decide whether the borrowers justifiably relied on the lender’s oral promises not to execute on the promissory notes for at least a year, notwithstanding the contract terms allowing prompt execution, given the borrowers’ failure to read the contract. So, how to balance these considerations remains an open question. While procedures to fend off such claims are often already in place, California businesses should proactively tighten up their practices and procedures to lessen the potential exposure that Riverisland represents, rather than wait for the courts to address these issues. In particular, the parties should customarily document that no oral promises were relied on in entering into the agreement.  In addition to fending off claims based on an oral promise, such documentation will presumably support an argument that the plaintiff was negligent in failing to read the contract. 
 

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Implicitly marking the 20th anniversary of its seminal decision in Knight v. Jewett, which established the doctrine of primary assumption of the risk, the California Supreme Court confirmed both the continuing vitality and breadth of that decision in Nalwa v. Cedar Fair (2012), S195031. In Knight, a plurality of the Supreme Court held that a player in a touch football game had no duty to prevent injuries resulting from the inherent risk of playing this contact sport. In Nalwa, the Court confirmed 6-1 that this doctrine remains the law in California and also that it extends to the operator of bumper cars at an amusement park, and the inherent risks of, well, bumping. In both cases, the Court held that the only duty of operators, sponsors and fellow participants engaged in a recreational activity with inherent risks was not to increase those risks.

Guided by the facts in Knight, and its companion case Ford (which applied this doctrine to noncompetitive waterskiing), the most common application of primary assumption of the risk has involved physical sports, although the courts have sometimes used a broad definition of "sport," including: downhill skiing (Cheong – colliding skiers), baseball (Avila – injury from an inside pitch), motorcycle “off-roading” (Distefano – colliding motorcycles), golf (Shin – getting hit by an errant ball), sport fishing (Mosca – getting hit with a someone else’s fishing line ), rock climbing (Regents – falling to death after anchors gave way), river rafting (Ferrari – rider struck her head on the raft frame), and even a noncompetitive group bicycle ride (Moser – colliding bicycles), and a group motorcycle ride toy drive (Amezcua – against the organizers, after a 3rd party collided with a motorcycle). This doctrine also extends to the training and instruction of athletic activities, so that coaches and trainers have a duty not to increase the inherent risks of training for and learning a given sport (e.g., Kahn – addressing a coach’s instructions to dive into a shallow pool). Sports spectators also assume the risk of being in the vicinity (e.g., Nemarnik – hockey fan hit by a puck).

However, the language in Knight and Ford is broader than just sports or athletics, and more generally addresses recreational activities, repeatedly referring to the inherent risk in "the activity or sport" at issue. Following suit, a recent lower court decision abandoned any pretense that an activity had to be considered a sport and applied primary assumption of the risk to an injury resulting from participation in the closing fire ritual at the annual Burning Man festival, an event which was not, in any way, a sport. In Beninati, the plaintiff tripped and fell into the remains of a substantial bon fire, having deliberately walked through the remaining embers. In essence, the court found that if you play with fire you may well get burned, and no one else has a duty to prevent this.

In Nalwa, the Supreme Court clarified the scope of primary assumption of the risk as it applies to recreational activities, consistent with Knight and Ford, whether or not the activity might constitute a sport, such as bumper cars. As clarified, the doctrine applies to 1) recreational activities, 2) that involve an inherent risk of injury, 3) to voluntary participants, 4) where the risk cannot be eliminated without altering the fundamental nature of the activity, 5) and in which the participants are actively engaged. The last point was the basis on which Nalwa distinguished bumper cars from roller coasters. Once engaged, bumper cars are individually controlled by each driver, much like players in a sport, and this is an inherent part of the activity. In contrast, participants are only passively engaged in roller coasters, having surrendered all control over the carriage to the operator, who is therefore held to the duty of a common carrier for hire (as held in Gomez). Finally, this doctrine is not barred by the existence of regulations governing the recreational activity, including safety regulations, although such regulations could establish negligence per se, or set the bar on what risks are considered inherent.
 

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Special Counsel Hall R. Marston recently published an article in the California Daily Journal on Sargon Enterprises v. USC (pdf), a new California Supreme Court opinion setting out Daubert-like standards for admissibility of expert testimony.  Anticipating interest in the article, the paper’s editorial staff arranged a video interview (subscribers only) for Hall to address the practical aspects of how Sargon is likely to impact a typical state court trial.  For more on Hall's insights on the Sargon opinion, see here.

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On December 4, 2012, the California Supreme Court is scheduled to hold oral arguments in Los Angeles on six matters, five of which are civil matters addressing a variety of business and commercial issues. Presumably these matters will all be submitted at the close of argument, so (barring any order to vacate the submission) the final decisions in these cases will be due by March 4, 2013.  Please note that the substantive briefs for these cases have not yet been posted, but a link to those briefs will be added to the update of pending California Supreme Court cases on this blog.

• Is a Contemporaneous Factual Misrepresentation of Contract Terms Admissible Under the Parol Evidence Rule? 

In Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (S190581) the Supreme Court will address whether the fraud exception to the parol evidence rule permits evidence of a contemporaneous factual misrepresentation as to the terms contained in a written agreement at the time of execution, or whether such evidence is 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.”  For more details, see the B & P 17200/Class Actions/Commercial update page.

• To What Degree Can the Reach of a §17200 Action Be Extended by the Continuing Violation Doctrine, the Accrual Doctrine or the Delayed Discovery Rule?

The scope of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) will be addressed in Aryeh v. Canon Business Solutions, Inc. (S184929), in which the Supreme Court will address to what degree, if any, an such an action can be expanded by the following doctrines: (1) 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;  (2) 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; or, (3) 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.  For more details, see the B & P 17200/Class Actions/Commercial update page.

• Can a Corporation Correct Its Suspended Status and Salvage an Appeal Initiated While Suspended? 

In Bourhis v. Lord (S199887 and S199889, consolidated) the Supreme Court accepted review after the Court of Appeal denied a motion to dismiss the appeal before the principle briefing, to address the following issue: 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?  For more details, see the B & P 17200/Class Actions/Commercial update page.

• Which State Law Controls Whether a Dissolved Corporation Lacks the Capacity To Be Sued?

The Supreme Court will also contribute to the body of choice of law opinions in Greb v. Diamond International (S183365) in the context of 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.  Does California Corporations Code § 2010 or Delaware General Corporation Law § 278 control? For more details, see the Civil Procedure/Evidence/Discovery update page.

• Is an Employer Entitled to a Jury Instruction on Mixed Motives for Firing an At-Will Employee?

In Harris v. City of Santa Monica (S181004) the Supreme Court will also address whether the “mixed-motive” defense apply to employment discrimination claims under the Fair Employment and Housing Act, (Gov. Code, § 12900 et seq.).  For more details, see the Employment – Other update page.

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The California Supreme Court has unanimously voted to accept review in the matter of Valdez v. W.C.A.B. (Warehouse Demo Services) in order to address the following issue: Does Labor Code § 4616.6 exclude from evidence reports of a treating physician obtained by an applicant outside of his or her employer’s Medical Provider Network ?   Two en banc decisions by the Worker’s Compensation Appeals Board answered this question in the affirmative, but those decisions were overturned by the Court of Appeal.  The issue has been a great concern to California employers, many of whom employ such networks to provide reasonable medical care at controllable costs.  As a result, 19 amicus letters were filed urging the Supreme Court to reverse the Court of Appeal, representing most of California’s counties, cities, and school districts in additional to numerous other public and privates entities, particularly self-insured employers who often rely on MPNs.

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Late last month, the California Supreme Court raised the stakes for defense counsel negotiating settlements in multiple defendant cases, abolishing the common-law “release rule” in Leung v. Verdugo Hills Hospital [pdf]. Leung has gotten a good bit of attention in the news and the blogs, including stories in The Wall Street Journal, Findlaw, Plaintiff Magazine [pdf] and Law360.  

According to the “release rule,” a plaintiff’s settlement and release of one joint tortfeasor releases all nonsettling tortfeasors from any liability for the plaintiff’s economic damages. The traditional rationale for the rule has been that since defendant can receive only one compensation for the joint wrong, and each joint tortfeasor is responsible for the entire liability, any payment must necessarily satisfy the claim.

California law has developed two “work-arounds,” one statutory and one judge-made.

In 1957, the legislature enacted C.C.P. Section 877, which establishes a system of “good faith settlements.” Where the trial court determines the settlement to be in good faith – meaning in the reasonable ballpark of the settling defendant’s liability, taking into account that the defendant should pay less in settlement than after trial – the settlement reduces joint tortfeasors’ potential liability, but does not automatically release them. Once a good faith determination is made, nonsettling defendants are barred from later suing the settling defendant for contribution on the grounds that the settling defendant paid too little.

The judge-made work-around was even simpler: courts held that as long as the settlement agreement was phrased as a “covenant not to sue” rather than a “release” (a distinction the courts ultimately admitted was largely without a difference), non-settling joint tortfeasors would not be released.

Leung involved an infant who sustained severe brain damage from kernicterus, a condition in which excessive bilirubin builds up in a newborn’s body and migrates to the brain. Before trial, the plaintiffs settled with the pediatrician for $1 million – his policy limits. The pediatrician agreed to participate in the trial, and in return, the plaintiffs gave him a release. The pediatrician’s petition for a good faith determination under Section 877 was denied, but the parties went ahead with the settlement anyway. At trial, the jury returned a verdict against both the pediatrician and the hospital, awarding over $95 million in future medical expenses and lost future earnings. The trial court entered judgment against the hospital for 95% of all economic damages – the share of liability for the pediatrician and hospital – subject only to the $1 million settlement as a setoff. On appeal, the Court of Appeal applied the release rule and reversed the judgment with respect to economic damages, holding that the release of the pediatrician released the hospital as a matter of law.

The Supreme Court reversed the Court of Appeal: “In light of the unjust and inequitable results the common law release rule can bring about, as shown in this case, we hold that the rule is no longer to be followed in California." After considering various alternatives for a new rule, the Court held that a settlement by a joint tortfeasor, absent a finding of good faith, operates as a setoff against the ultimate judgment, but that the nonsettling tortfeasors retain the right to pursue the settling defendant for contribution.

What all this means as a practical matter is that Section 877 good faith hearings will likely be harder-fought than ever. Settling defendants will litigate the matter aggressively, since a good faith determination cuts off future satellite lawsuits for contribution. Counsel for settling defendants should give careful consideration to including in the settlement agreement a provision allowing the parties to abrogate the settlement if a good faith determination is denied. Nonsettling defendants will have every incentive to scrutinize the settlement carefully and challenge anything not in the Section 877 “ballpark.”

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As the summer got started, and his first year on the bench nearly completed, Justice Liu produced four unanimous opinions on wide ranging issues of California law, including arbitration, preemption work product and environmental regulations. This makes a total of six opinions by Justice Liu in civil cases. The other two, Dicon Fiberoptics, Inc. (re tax credit for disadvantaged worker) and Kirby, (addressing a fee shifting agreement) were also unanimous. Here is a summary of Justice Liu’s recent opinions.

Arbitration –Arbitration of provisions in a collective bargaining agreement should not be compelled if the provisions violate existing statutes.

In United Teachers of Los Angeles v. Los Angeles Unified School Dist., S177403 (opinion issued 6/28/12), the Court held that a petition to compel arbitration to enforce collective bargaining provisions between a union and a school district should by denied if the provisions at issue directly conflict with provisions of the Education Code — that is, if they would annul, replace, or set aside Education Code provisions. The Court further held that, under the Education Code, an arbitrator has no authority to deny or revoke a school charter. However, the Court found that the union’s claims in this case were too general to make the necessary determinations at this time, and so remanded the case to allow the union to identify those specific provisions of the agreement it claims the district violated.
For more details about United Teachers of Los Angeles, see the ADR update page.

Work Product Doctrine – The Court describes the limits of the work product doctrine regarding witness interviews, and the showing needed to apply the doctrine.

The Court addressed the work product doctrine (C.C.P.  § 2018.010, et seq.,) in Coito v. Superior Court, S181712 (opinion issued 6/25/12). The Court reversed the Court of Appeal and made two primary holdings. First, that recorded witness statements obtained by investigators hired by counsel are entitled as a matter of law to at least qualified work product protection, and potentially to absolute protection if the party can show that disclosure would reveal its “attorney’s impressions, conclusions, opinions, or legal research or theories.” Second, that the identity of those witnesses from whom counsel has obtained statements is not automatically entitled to any work product protection. To prevent disclosure of such a list, counsel must justify such protection on a case-by-case basis.  For more details about Coito, see the Attorney Related update page.  Also, for an analysis of the opinion by the Court of Appeal in Coito, see the previous March 2010 post on this blog.

Environmental Regulations – An air quality district can mandate pollution standards based on reasonably anticipated technologies that do not yet exist.

Partially reversing the Court of Appeal, in National Paint & Coatings Assn., Inc. v. South Coast Air Quality Management Dist., S177823 (opinion issued 6/25/12), the court found that Health and Safety Code § 40440 authorizes an air quality district to promulgate pollution standards based on technologies that do not currently exist but are reasonably anticipated to exist by the compliance deadline. Furthermore, the Court found that the district had sufficiently demonstrated that its challenged emissions limits were achievable in each category and that the categories were reasonably drawn.  For more details about National Paint & Coatings Assn., Inc., see the Environmental update page.

Preemption – State consumer protection disclosure requirements are preempted by the broad federal grant of power given to banks to conduct their business.

Again reversing the Court of Appeal, the court held in Parks v. MBNA American Bank, S183703 (opinion issued 6/21/12), that the National Bank Act (NBA) (12 U.S.C. § 21 et seq.) preempts the requirements of California Civil Code § 1748.9 regarding specific types of notice to consumers regarding the use of convenience checks as cash advances on credit card accounts. The Court held that these disclosure requirements stand as an obstacle to the broad grant of power given by the NBA to national banks to conduct the business of banking.  For more details about Parks, see the B & P 17200/Class Actions/Commercial update page.
 

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It is not uncommon for a deposition witness testifying regarding critical events to make somewhat inconsistent statements under direct- and cross-examination.  For decades California trial courts have denied summary judgment motions on the ground that such inconsistencies create triable issues of fact that must be resolved by juries.  The lower courts cite two California Supreme Court opinions, Clemmer v. Hartford Insurance Co., 22 Cal.3d 865 (1978) and Reid v. Google, Inc., 50 Cal.4th 512 (2010), for the principle that "the task of disambiguating ambiguous utterances is for trial, not for summary judgment."

In Davis v. Foster Wheeler Energy Corp., __Cal.App.4^th__, 2012 WL 1435016 (2012) [pdf], the California Court of Appeal was asked to reverse a summary judgment entered against the heirs of a refinery worker who had died of asbestos-related disease and in favor of the manufacturer of an industrial boiler that had been insulated with asbestos.  A witness who had worked with the decedent testified under examination by plaintiffs’ counsel that he had witnessed (while working nearby the decedent) the manufacturer’s employees remove asbestos insulation from pipes attached to the boiler, creating dust that was inhaled by the decedent.  Later in the deposition, while being examined by defense counsel, the witness said the opposite; only insulators hired by the refinery had applied and removed asbestos.  He denied having any knowledge that anyone associated with the manufacturer had ever applied or removed asbestos.  The trial judge, having reviewed the testimony of another percipient witness that corroborated the deponent’s second version of the relevant events, granted summary judgment for the manufacturer:  “[N]o reasonable jury considering this opposing testimony would conclude that the [Foster Wheeler] workers are the workers who removed the asbestos insulation around the Foster Wheeler boilers.”

On appeal plaintiffs argued that Clemmer and Reid required reversal.  The Court of Appeal, affirming, disagreed:  “In this case, the testimony is not ambiguous, but is contradictory, and the issue is . . . whether with [the witness’s] internally contradictory testimony plaintiffs established the existence of a triable issue of fact, and on de novo review [citation] we agree with the trial court that it did not.”

Under Davis counsel need not shy away from bringing a summary judgment motion even where there are internal inconsistencies in the testimony, especially where the testimony favorable to the client is consistent with the weight of other evidence submitted for the trial court’s evaluation.

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Last August, the California Supreme Court issued one of those once-in-a-generation opinions that cut a wide swath across many areas of tort law. A 6-1 opinion, Howell v. Hamilton Meats held that personal injury plaintiffs are limited to recovering, as medical special damages, the amount plaintiff’s private health insurer actually paid plaintiff’s medical provider in full satisfaction of the bill for services rendered to treat the personal injury. Plaintiffs cannot recover the face amount that their providers billed if their private health insurers paid less in full satisfaction, e.g., where the health insurer and hospital have a prenegotiated contractual agreement on how much the hospital will accept. Typically, the prenegotiated “discount” – though not really a “discount” at all – is much less than the face amount of the bill.

Though the phrase “landmark decision” is often over-used, Howell is one of those rare opinions that truly deserves the label.   It applies to virtually every type of lawsuit in which the plaintiff who claims personal injury had private health insurance which picked up the tab for plaintiff’s medical services. In other words, Howell governs not merely in the traditional auto accident scenario, but any case in which plaintiff seeks to recover for medical services attributable to the injury defendant caused. Howell limits recovery to the “reasonable value” of the service, capped by the amount the provider accepted as payment in full. Some have estimated that Howell represents a net savings to defendants and their liability insurers of as much as $3 billion per year. Full disclosure: Sedgwick’s appellate department filed one of the amici curiae briefs on which the Supreme Court relied in its Howell decision.

The ink on Howell was hardly dry before a bill was introduced in the California Legislature to overrule it. SB 1528 was sponsored by Senate President Pro Tem Darrell Steinberg for the Consumer Attorneys of California (aka the plaintiffs’ bar.) As introduced in February, the two-paragraph bill declared that injured plaintiffs "shall be entitled to recover the reasonable value of medical services provided without regard to the amount actually paid." [pdf]  In other words, the original version was aimed squarely at legislatively-overruling Howell.

But just a few days ago, the measure took an interesting detour. Proponents deleted all of the language that would have overturned Howell, leaving only a shell that says: “it is intent of the Legislature to establish a framework for compensating persons with injuries due to the fault of third parties.”  [pdf] This, in essence, reduces the measure to a “spot bill” – one that contains no substantive provisions, a placeholder declaring the drafters’ “intent” to establish a compensation “framework” in the future. As Dan Walters, blogging for the Sacramento Bee, describes it: the remaining language is “essentially a blank slate that can move through the process and then be filled in later, perhaps in the crush of the legislative session's final days, with or without a compromise between the warring factions.”

According to California’s official legislative website, a hearing is set for May 8, 2012.

Stay tuned to Appellate Strategist for further reports.

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The California Supreme Court has issued a resounding and conclusive opinion rejecting the surging liability theory that a product manufacturer may be held liable for harmful defects in products made by third parties unless the manufacturer’s own product contributed substantially to the harm, or the manufacturer participated substantially in creating a harmful combined use of the products.

The Court’s unanimous opinion in O’Neil v. Crane Co. – issued Thursday – slammed the door on plaintiffs’ attempt to create “an unprecedented expansion of strict products liability,” and reaffirmed the “bedrock principle” that strict liability is premised on harm caused by deficiencies in the defendant’s own product.

The plaintiffs in O’Neil had postulated that the defendant valve and pump manufacturers should be liable for the harm caused by the plaintiff’s exposure to asbestos-containing insulation products (made by others) that were used on or near the defendant’s all-metal products. However, there was no evidence that asbestos insulation – as opposed to some other type of insulation material – was necessary for the defendants’ pumps and valves to function properly.

A product’s “mere compatibility for use” or even its foreseeable use with defective components is not enough to render the defendant’s product itself defective. The Court noted the absurdity that would follow recognition of plaintiffs’ liability theory. Manufacturers of the saws and tools used to cut and remove asbestos insulation would become the next targets in asbestos litigation. And taken to its logical extreme, match manufacturers might be required to warn about the hazards of dynamite.

“The broad rule plaintiffs urge would not further the purposes of strict liability. Nor would public policy be served by requiring manufacturers to warn about the dangerous propensities of products they do not design, make, or sell,” wrote Justice Corrigan, writing for the unanimous Court. A manufacturer of a non-defective product is unable to exert pressure on other manufacturers to make their products safe. Additionally, manufacturers of non-defective products should not shoulder a burden of liability for products, the sale from which they derived no economic benefit. Nor should strict liability require manufacturers to investigate the potential risks of all other products and replacement parts that might foreseeably be used with their own product and warn about such risks. This “unrealistic” and “excessive” burden would actually undermine consumer safety by inundating users with excessive warnings.

The Court did not expressly opine on, but rather left open the possibility of liability in the case of a product that requires the use of a defective product in order to operate, or if a product manufacturer specifies or requires the use of a defective replacement part. However, the Court noted that in both contexts, “the policy rationales against imposing liability on a manufacturer for a defective part it did not produce or supply would remain.” 

Now that two state Supreme Courts – California and Washington (see Braaten v. Saberhagen Holdings (2008) 165 Wn.2d 373,and Simonetta v. Viad Corp. (2008) 165 Wn.2d 341.) – have recently rejected this proposed expansion of products liability law in the asbestos context, expect that many other jurisdictions will follow and cap this emerging theory.

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The California Supreme Court heard oral argument in O’Neil v. Crane Co. The Court’s decision will likely define an important area of strict products liability law in California – specifically, it will expand or limit the duty of product manufacturers to warn about the hazards of replacement parts made by others that are subsequently incorporated by the purchaser into the manufacturer’s original product. 

O’Neil arises out of the plaintiff’s exposure to asbestos-containing gaskets and packing materials used in and around the defendants’ valves and pumps, which were incorporated by the Navy into the steam propulsion system aboard the USS Oriskany, where the plaintiff served while he was enlisted. Though the pumps and valves delivered to the Navy originally incorporated asbestos-containing gaskets and packing, all parties agreed that by the time plaintiff served aboard the Oriskany, the original asbestos packing and gaskets had been removed and replaced with packing and gaskets manufactured by third parties. Nevertheless, the plaintiff argued the pump and valve manufacturers had a duty to warn him regarding the hazards of asbestos.  

Prior to O’Neil this legal issue had been addressed by the California Court of Appeal, most notably in Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 564. There, the First Appellate District noted, on facts indistinguishable from the present case, that the plaintiff’s injury did not come from the defendants’ equipment itself, but instead was released from products made or supplied by other manufacturers, though used in conjunction with the defendants’ equipment. Thus, the defendant manufacturers were not part of the chain of distribution of the injury-causing product, which was actually the asbestos-containing insulation. The court held that California law did not recognize a duty to warn of defects in another manufacturer's product.  The Second District Court of Appeal below in O’Neil rejected the reasoning of Taylor, and instead ruled that a manufacturer is strictly liable for dangerous products with which its product will necessarily be used. The Supreme Court granted certiorari in O’Neil to resolve the conflict between the O’Neil and Taylor decisions.

At oral argument, one of the Justices’ primary concerns appeared to be factual in nature: What exactly was meant by the parties’ contention that the Navy “specified” or “required” the use of asbestos-containing insulation? As phrased by Chief Justice Cantil-Sakauye, did the Navy “say the magic word, ‘asbestos’” in its specifications to the defendants, or did the Navy merely promulgate performance specifications and the defendant manufacturers independently determined that asbestos-containing insulation was the best (or even only) material suitable to meet those requirements?  

Another significant concern of the Court appeared to be whether the pumps and valves were capable of functioning without the asbestos-containing components. In other words, was asbestos required for the pumps and valves to function properly, or was asbestos merely required by the dictates of the steam propulsion system, and not the design of the valves or pumps themselves. The Court seemed troubled settling on the proposition that the pumps and valves could be deemed defectively designed if the pumps and valves were “asbestos neutral,” and could function just as well in other systems utilizing non-asbestos containing materials. 

Ultimately this latter point may be where the court draws the line, assigning a duty to warn about replacement parts made by others only if the replacement part is identical to the original hazardous part, and the replacement part is essential to the function of the defendant’s product. The Court will issue its opinion within 90 days. 

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Adding its voice to a continuing national debate, the California Supreme Court has adopted the minority rule and held that tort damages for past medical expenses are limited to those amounts actually paid and accepted as full payment for the services provided, when such amounts are determined by an existing agreement with the plaintiff’s insurance carrier. In such a case, an amount otherwise “billed” using rates outside of the agreement is irrelevant. In its opinion, the Court explained that only the prenegotiated amount actually paid by, or on behalf of, the plaintiff to settle a previous medical bill is recoverable as economic damages, because such a payment is the extent of plaintiff’s actual loss. As a result, the collateral source rule does not apply, because the issue is the measure of plaintiff’s actual damages, not how they were paid. The Court noted that, to be recoverable, such damages must be both reasonable and actually incurred. While acknowledging that this could result in wildly different damages for the same injury, depending on whether the plaintiff was insured, this does not change the measure of a particular plaintiff’s damages. The Court noted a similar disparity in lost income damages between different plaintiffs with identical injuries. There were several amicus briefs filed in this matter, including one prepared by Sedgwick. For more details about Howell, see the Damages update page.

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Governor Jerry Brown has acted to fill the California Supreme Court vacancy created by the retirement earlier this year of Associate Justice Carlos R. Moreno by nominating U.C. Berkley law professor Goodwin Liu to the post. 

Professor Liu, 40, has never been a judge, but recently garnered headlines as President Obama’s nominee for a seat on the U.S. 9^th Circuit Court of Appeals. His confirmation was blocked by Senate Republicans, citing his legal philosophy and despite support from prominent legal conservatives Kenneth W. Starr and Richard Painter. He ultimately withdrew his nomination. 

Professor Liu is the son of Taiwanese immigrants. He was born in Georgia, but raised in Sacramento where, according to his CV, he attended public schools. He graduated Stanford in 1991 with a bachelor’s degree in biology, then went to Oxford on a Rhodes scholarship, where he took a masters degree in philosophy and physiology. “Upon returning to the United States, he went to Washington, D.C., to help launch the AmeriCorps national service program and worked for two years as a senior program officer at the Corporation for National Service.” 

Professor Liu’s career in the law began upon graduation from Yale Law School in 1998, whereupon he clerked for Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. He then worked “as Special Assistant to the Deputy Secretary of the U.S. Department of Education, where he developed and coordinated K-12 education policy.” A U.S. Supreme Court clerkship with Justice Ruth Bader Ginsburg followed, then a stint in O’Melveny & Myers’ appellate litigation practice in Washington, D.C. Since joining the Boalt Hall faculty in 2003, he has ascended to the rank of Associate Dean and Professor of Law while establishing himself as a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. 

He is also a prolific and influential legal scholar. Some of his more recent publications include:

• Keeping Faith With The Constitution (2009) (with Pamela S. Karlan and Christopher H. Schroeder);
   
• The Bush Administration and Civil Rights: Lessons Learned, 4 Duke Journal of Constitutional Law & Public Policy 77 (2009);
  
• National Citizenship and the Promise of Equal Educational Opportunity, in The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009);
  
• Rethinking Constitutional Welfare Rights, 61 Stanford Law Review 203 (2008).

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Under respondeat superior, an employer is held vicariously liable for the acts of an employee when driving a vehicle within the scope of employment, irrespective of any fault by the employer. Alternatively, an employer can be directly liable for its own negligence under the theory of negligent hiring/retention or negligent entrustment. As a practical matter, a plaintiff injured by the driving employee can allege all such theories; however, does that remain true once the employer admits liability under respondeat superior?

In Armenta v. Churchill (1954) 42 Cal.2d 448 (Armenta), the California Supreme Court held that once an employer admits liability under respondeat superior for an employee driver, the plaintiff is then barred from also pursuing a claim of negligent entrustment. The Court concluded that these were merely two alternative theories for holding an employer liable for the same injury. Under the “all of nothing” principles then in place, an employer would either be held for 100% of the damages, or none at all, regardless of the theory used. However, since Armenta, California has adopted comparative negligence principles and voters enacted Proposition 51, creating mechanisms for parsing out the separate liability of each party involved. As a result, the courts of appeal split as to the continuing viability of Armenta, with the Court of Appeal in Diaz finding that Proposition 51 required a separate evaluation of the employer’s direct liability.

In Diaz v. Carcamo (2011) ___ Cal.4th ___, S181627, the unanimous Supreme Court has resolved the conflict below and upheld Armenta, noting that this remained the majority rule in the U.S. The Court first dismissed the purported distinction between a claim of negligent entrustment (Armenta) and negligent hiring (Diaz), noting these were “functionally identical” when addressing an employee driver. The Court also found it made no difference whether the employer conceded vicarious liability before or during trial. As to the main issue, the Court sided with Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, finding that the employer’s liability cannot exceed that of the employee driver who allegedly caused the accident, and that nothing in the development of negligence principles since Armenta had changed this. As a result, once vicarious liability for the employee is conceded, making the employer fully liable for the employee’s actions, the additional claims of negligent entrustment or negligent hiring become duplicative and superfluous and must be barred. Indeed, the Court noted the inherent inequity of holding the employer for a second share of liability in excess of the negligent driver’s liability, and remanded for a full retrial. For more details about Diaz, see the Torts & Products update page.
 

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Appellate Strategist’s survey of potential nominees to the California Supreme Court  begins with Mariano-Florentino Cuellar. Cuellar graduated from Calexico High School in Calexico, California. After earning a bachelor’s degree from Harvard in 3 years (magna cum laude, 1993), he received a Master’s degree in political science from Stanford in 1996, followed by a law degree from Yale in 1997, and a Ph.D. from Stanford in 2000. He then served as law clerk to Chief Judge Mary M. Schroeder of the United States Court of Appeals for the Ninth Circuit. 

Since the culmination of his clerkship in 2001, Cuellar has been a professor at Stanford Law School, first as an Assistant/Associate Professor and then, since June 2007, as a Full Professor and Deane F. Johnson Faculty Scholar. According to his faculty biography, his work at Stanford involves “the intersection of law, public policy, and political science.” His courses deal with issues of administrative law, regulation and bureaucracy, executive power, and national security. 

Professor Cuellar’s tenure at Stanford has included governmental, as well as academic, endeavors. In fact, even before he assumed his faculty position at Stanford, he interrupted his Ph.D. program to serve as Senior Advisor to the Under Secretary (Enforcement) of the Treasury from 1997 to 1999, in which role he focused on financial crime enforcement, terrorism financing countermeasures, immigration, and border security. In 2008 and 2009, he served as Co-Chair of the Immigration Policy Working Group for the Obama-Biden Transition Project, where he worked to formulate policies on immigration, borders, and refugees. In 2009 and 2010, he served as Special Assistant to the President for Justice and Regulatory Policy, in which role he led the White House Domestic Policy Council’s work on criminal justice and drug policy; civil rights and liberties; immigration, borders, and refugees; public health and safety; rural development and agriculture policy; and regulatory reform.

Beyond Stanford, Professor Cuellar is associated with the Council on Foreign Relations, the American Bar Association, the American Law Institute, the American Constitution Society, the La Raza Lawyers’ Association of California, and the National Hispanic Bar Association, among others. He is married to former Santa Clara County Superior Court Judge Lucy H. Koh, who is now a federal district court judge for the Northern District of California pursuant to an appointment by President Obama.

Because Cuellar has not served on the bench, his views on topics that might come before the Court must be gleaned from his writings and appearances in the media. A brief sampling of his academic writing is heavy on federal matters:

• Mariano-Florentino Cuellar, The Political Economies of Criminal Justice, 75 U. Chi. L. Rev. 941 (2008) (responding to the proposition that politicians increasingly govern by framing social policy choices as criminal justice problems, and concluding that “reshaping the [crime-governance connection] to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration.”)
  
• Mariano-Florentino Cuellar, Auditing Executive Discretion, 82 Notre Dame L. Rev. 227 (2006) (proposing an audit framework similar to “sample adjudication of class action” in lieu of the deferential or non-existent judicial review of executive decision-making and concluding “(1) Judicial review fails to constrain a broad range of discretionary executive decisions subject to mistakes or malfeasance. (2) The limitations of traditional judicial review do not imply that discretionary executive branch decisions should be immune from some form of review. (3) Arguments for broad executive discretion are often radically underdeveloped and fail to withstand scrutiny.”)
  
• Mariano-Florentino Cuellar, The International Criminal Court and the Political Economy of Antitreaty Discourse, 55 Stanford L. Rev. 1597 (May 2003) (arguing that the United States objects to the ICC on “process-oriented” grounds because a “focus on procedure sounds marginally more principled to international audiences than a brute realist assertion that American interests are best served by keeping unfettered control of military decisions.” “Yet this comes with costs: It elides the debate over the value of the brute realist position that American military power should be subject to few meaningful constraints and instead makes it look like the most important question is about the procedural shortcomings of a court that is precisely meant to address the arbitrariness in international criminal justice that critics use to assail it.”)

Professor Cuellar’s appearances in the media have often revolved around his role in shaping the Obama Administration’s immigration policy. His appointment to President Obama’s Immigration Policy Working Group was interpreted by experts as confirmation that President Obama was committed to comprehensive immigration reform.  Moreover, both the National Council of La Raza and the League of United Latin American Citizens greeted Professor Cuellar’s appointment with approval.

Though economic factors have put the immigration debate on the back burner, President Obama’s recent attempt to jump-start the issue suggests that his need for Professor Cuellar’s services may become more pressing in the near future. Whether that impacts Governor Brown’s appointment, or Professor Cuellar’s willingness to serve, remains to be seen.

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The California Supreme Court has scheduled oral arguments for May, including four civil cases.

• Brown v. Mortensen: The Court will address whether the Federal Credit Reporting Act (15 U.S.C. § 1681 et seq.) preempts causes of action for the improper disclosure of medical information under California’s Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.). This case attracted one amicus brief in support of appellants (by the National Association of Consumer Advocates). For more details about Brown, see the B & P 17200/Class Actions/Commercial update page.

• Save the Plastic Bag Coalition v. City of Manhattan Beach: Does the plaintiff, an association of plastic bag manufacturers, have standing to challenge a local ban on the use of plastic bags? The Court also granted review to address whether the ordinance was properly held invalid for the failure to prepare an environmental impact report. This case has generated significant amicus interest, including four amicus briefs supporting the City’s ordinance (by Heal the Bay, Manhattan Beach Residents Association, Californians Against Waste, and [jointly] the League of California Cities and California State Association of Counties) and one supporting the plastic bag manufacturers (by the Pacific Legal Foundation). For more details about Save the Plastic Bag Coalition, see the Environmental update page.

• Shalant v. Girardi: If a vexatious litigant subject to a prefiling order files a lawsuit while represented by counsel, may the litigant proceed in propria persona without first obtaining the approval of the presiding judge under C.C.P.§ 391.7 should counsel later withdraw? The Court of Appeal thought so, reversing the trial court’s dismissal. This case attracted one amicus brief supporting the plaintiff vexatious litigant (by the Los Angeles Society For The Prevention Of Cruelty To Animals). For more details about Shalant, see the Attorney-Related update page.

• In re K.C.: What injury is needed for a parent to have standing to contest the denial of a petition to place his child with the child’s grandparents? This case attracted one amicus brief in favor of the Kings County Human Services Agency (by the California State Association of Counties). For more details about In Re K, see the Other update page.
   

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The California Supreme Court has granted review in Ennabe v. Manosa, S189577, in which the Second District Court of Appeal upheld a summary judgment for defendant, who hosted a party at a private residence where alcoholic beverages were available and who charged uninvited party guests an entrance fee of $3 to $5. The Court of Appeal accepted, with little discussion, that the defendant was a “social host” for purposes of Civil Code §1714(c), and hence generally immune from civil liability for furnishing alcoholic beverages both under that provision and under Business and Professions Code §25602. The unanimous panel then held that where drinks were simply available to party guests, once admitted, the host had not sold or caused to be sold an alcoholic beverage under Business and Professions Code §25602.1, and was therefore not civilly liable for damages for admitting to the party an obviously intoxicated minor who, upon leaving the party, drove his car into a pedestrian, another partygoer, killing him. The court further held that, in any case, the defendant was not “required to be licensed” for this party within the meaning of Business and Professions Code §25602.1, giving “no weight” under these facts to a contrary statement in an information guide by the Department of Alcoholic Beverage Control, because it failed to address or cite the controlling statutes.

The California Supreme Court granted review on two issues: 1) whether such a defendant is a “social host” pursuant to Civil Code §1714(c); and, 2) whether the exception to immunity created by Business and Professions Code §25602.1 applies under these facts. The high court had previously noted the first issue, without deciding it, in Cory v. Shierloh (1981) 29 Cal.3d 430, 437. For more details about Ennabe, see the Torts & Products update page.
 

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• Oasis West Realty v. Goldman (S181781) – Does an attorney’s duty of loyalty owed to a former client apply when the attorney actively takes a position against the former client on the same issue for which the lawyer previously had been retained, but does so while acting on his or her own behalf, without a subsequent representation or employment? For more details about Oasis West Realty, see the Attorney-Related update page.

• Diaz v. Carcamo (S181627) – In an attempt to extend the holding in Armenta v. Churchill (1954) 42 Cal.2d 448, which held that a claim of negligence entrustment is no longer viable against an employer who admits to being vicariously liable for the employee, the employer in Diaz argues that the same result should apply to a claim of negligent hiring against the employer, thus precluding evidence of the employee’s poor driving record. The Court of Appeal declined to make such an extension, in part because Armenta pre-dates Proposition 51. This case has attracted significant amicus interest, and multiple requests to depublish the Court of Appeal opinion. For more details about Diaz, see the Torts and Products update page.

• Sullivan v. Oracle Corporation (S170577) – This case addresses the application of California Labor Code overtime requirements to out-of-state employees hired by a California employer, including: (1) Does the Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week? (2) Does Bus. & Prof. Code § 17200, et seq., apply to such overtime work? (3) Does § 17200, et seq. apply to overtime work performed outside of California for a California-based employer by out-of-state plaintiffs if the employer failed to comply with the overtime provisions of the federal Fair Labor Standards Act, 29 U.S.C. § 207 et seq.? This case has also attracted significant amicus interest. For more details about Sullivan, see the Employment – Compensation & Benefits update page.

• Franchise Tax Board v. Superior Court (Gonzales) (S176943) – Here, the Court will address the question of whether article I, section 16, of the California Constitution provides a taxpayer the constitutional right to a jury trial in an action for a refund of taxes under Revenue and Taxation Code  § 19382. For more details about Franchise Tax Board, see the Taxation and Assessments update page.
   

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• Insurance – In Century-National Ins. Co. v. Jesus Garcia, the court held that a fire insurance policy could not exclude coverage for innocent insureds because of the intentional acts of another insured; in this case the intentional act of the son setting fire to his parents house. The policy excluded coverage based on the intentional act or criminal conduct of “any insured,” and on this basis the carrier excluded coverage for the parents based on the acts of the son. While similar language was previously held as effective to exclude coverage as to all insureds in Minkler; the Court held that Insurance Code §§ 2070 and 533 limit the scope of such an exclusion in fire insurance policies to the specific insured who committed the intentional act. In doing so, the Court warned that this holding may have limited application in other contexts. For more details about Century-National Ins. Co. see the Insurance update page.

• Consumer Protection – The Song-Beverly Credit Card Act of 1971 is a consumer protection act which bars businesses from requesting that cardholders provide “personal identification information” during credit card transactions, and then recording that information. In Pineda v. Williams-Sonoma Stores, Inc. the Supreme Court found that zip codes constituted “personal identification information,” making it a violation of the act for a business to request and record zip codes as a part of credit card transactions. For more details about Pineda see the B & P 17200/Class Actions/Commercial update page.

• ADR – Several of the plaintiffs in Tarrant Bell Property, LLC v. Superior Court (Abaya) signed lease agreements requiring that any arbitrable issues, including those involving conditions at the subject mobilehome park, which were made subject to judicial proceedings would be decided by a referee upon the motion of any party pursuant to CCP § 638.  After the residents collectively brought suit, the trial court refused to enforce this provision and the Supreme Court affirmed, finding that the trial court had discretion to deny the motion. Moreover, given the redundancy that would result from referring only some of the residents to a referee over the same legal issues, the trial court did not abuse its discretion. In so ruling, the Court disapproved of both Greenbriar Homes Communities, Inc. v. Superior Court (2004) 117 Cal.App.4th 337, and Trend Homes, Inc. v. Superior Court (2005) 131 Cal.App.4th 950, to the extent they are inconsistent. For more details about Tarrant Bell Property, LLC see the ADR update page.
   

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Before profiling potential candidates to replace Justice Moreno on the California Supreme Court, we first provide a brief profile of the remaining court – not including Justice Moreno, whose announced retirement has initiated this discussion. When choosing a new member for the high court, there is often a discussion about what is “missing” from the court; in order to better address that issue, it can be helpful to look at its existing composition.

The remaining six members of the California Supreme Court represent a total of 134 years of judicial experience, although only two of them, Chief Justice Cantil-Sakauye and Justice Corrigan, had extensive experience on the bench before joining the high court, each with about twenty years of prior experience. In comparison, Justice Chin had previously served as a judge for eight years, while the others had previously served for about three years each. There may be other types of judicial experience, however, in that Justice Werdegar was a senior staff attorney with both the California Court of Appeal and the California Supreme Court, while Justice Baxter assisted in the appointment of more than 700 judges while serving in the Deukmejian administration. However, regardless of their varied judicial experiences, each of the current justices had previously sat on a Court of Appeal before being nominated to the Supreme Court.

The average tenure of the remaining Supreme Court justices is about 13 years, ranging from 22 years for Justice Kennard to about one month for Chief Justice Cantil-Sakauye. A majority of the justices have been on the Supreme Court for at least 15 years. While the existing justices had widely varying experiences before taking the bench, all of them were government prosecutors earlier in their careers, most as deputy district attorneys (Justice Werdegar worked in the U.S. Dept. of Justice, Justice Kennard in the L.A. Attorney General’s office). All of the justices are long time California residents, with four of them native born and two others moving here in the early 1960’s. The average age of the remaining justices is about 65, with the youngest being Chief Justice Cantil-Sakauye at 51 years old.

All of the justices were nominated to the Supreme Court by Republican governors, two each by Deukmejian, Wilson and Schwarzenegger. As such, the new justice, like Justice Moreno, will be the only member of the Court nominated by a Democratic governor. Of the remaining six justices, four are women, meaning the court will have a female majority regardless of who Governor Brown nominates. Along ethnic lines, the court has three Asian-Americans and three justices of European descent. The current lack of either a Latino or an African-American has been raised by commentators in predicting the next nominee.

In future posts, we will profile candidates being considered to replace Justice Moreno on the California Supreme Court. 

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In Cassel v. Superior Court (Wasserman Comden Casselman & Pearson), the California Supreme Court evaluated the mediation confidentiality created by Evidence Code, § 1119, which prevents the admission of “evidence of anything said,” or any “writing” which was prepared “for the purpose of, in the course of, or pursuant to, a mediation. . . .”, subject only to certain statutory exceptions. Upholding an earlier Court of Appeal decision, Wimsatt, but reversing here, the Court found that the express statutory language applied to protect discussions between counsel and client made during and immediately preceding the mediation in the underlying action, even in a subsequent legal malpractice action in which counsel’s conduct at the mediation was a basis for the malpractice claim. As a result, the court found that counsel defending itself against a legal malpractice action was entitled to exclude evidence of such communications with its own former client, now the legal malpractice plaintiff. While expressing no opinion on the merits of this statutory scheme, the Court noted that the Legislature was free to reconsider it. Justice Chin concurred, “reluctantly,” noting this was “a high price to pay for confidentiality in the mediation process,” and suggesting statutory amendments which could avoid this result while preserving mediation confidentiality. For more history regarding Cassel, see the ADR update page.

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After serving the California courts for twenty-four years, Associate Justice Carlos R. Moreno has announced his retirement from the court.  In a recent interview, Justice Moreno said that recent changes, including the retirement of Chief Justice Ronald George and the election of Governor Jerry Brown, had prodded him to explore other possibilities.  His retirement creates an early opportunity for newly sworn Governor Brown to establish a tone for his administration. In future posts, we will provide profiles for candidates being considered to fill this unexpected vacancy. But first, we note the distinguished judicial career of Justice Moreno.

Justice Moreno is native to Los Angeles, where he continued to live after his appointment to the Supreme Court by commuting to San Francisco.  After receiving a B.A. in political science from Yale University (1970) and a 1975 J.D. from Stanford Law School, Carlos Moreno served in the Los Angeles City Attorney's Office, prosecuting criminal and civil consumer protection cases. In 1979, he joined a private firm, representing clients in general commercial litigation. During this time he was also president of the Mexican American Bar Association.

Moreno has enjoyed judicial nominations from both parties. Governor George Deukmejian appointed Justice Moreno to the Municipal Court, Compton Judicial District, in 1986, where Moreno handled general criminal matters and supervised the court’s civil department. In October 1993, Governor Pete Wilson elevated Justice Moreno to the Los Angeles County Superior Court, where he presided over felony trials in downtown Los Angeles. In 1997, Moreno received the Criminal Justice Superior Court Judge of the Year Award from the Los Angeles County Bar Association. President Bill Clinton nominated Justice Moreno to the federal bench, and he was unanimously confirmed to the United States District Court for the Central District of California by the United States Senate in February 1998.

After his nomination by Governor Gray Davis, Justice Moreno was sworn in as an associate justice of the Supreme Court of California on October 18, 2001. Moreno was given the Roger J. Traynor Appellate Justice of the Year Award from the Consumer Attorneys Association of Los Angeles in 2003. At present, Justice Moreno is the only Democrat on the Supreme Court, and the only Latino.  Describing himself as a “moderate-to-liberal centrist,” Moreno initially sided with conservative members of the court as often as its more liberal members. As the court reportedly became more conservative over the years Moreno wrote an increasing number of solo dissents, the most prominent of which was his dissent from the Court’s decision upholding Proposition 8, in which the Court reinstated the ban on same-sex marriage.  Justice Moreno was prominently mentioned as a potential nominee by President Obama for the United States Supreme Court both in 2009 and in 2010.  During that debate, Appellate Strategist profiled Justice Moreno here.

Join us below the jump for a sampling of Justice Moreno’s most important opinions.

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The CA Supreme Court has scheduled three civil cases for hearing on February 8, 2011. These cases address issues of duty & causation, the statute of limitations for multiple distinct injuries and the final judgment rule.

• Pooshs v. Philip Morris USA, Inc., et al., S172023, results from a request for guidance from the Ninth Circuit regarding the application of the statute of limitations on multiple distinct personal injuries allegedly arising from smoking tobacco; specifically - does the earliest injury trigger the statute for all claims, including those based on a later injury? For more details regarding Pooshs, see the Civil Procedure/Evidence/Discovery update page.

• Cabral v. Ralphs Grocery Company, S178799, addresses whether a big-rig truck driver owes a duty of care to freeway motorists not to park for non-emergency reasons in an “Emergency Parking Only” area at the side of a freeway. Review was also granted on the issue of whether the driver’s act of parking in the “Emergency Parking Only” area was not a substantial factor, as a matter of law, in causing plaintiff’s injuries in this case. For more details regarding Cabral, see the Torts & Products update page.

• In re Baycol Cases I and II, S178320, the Court addresses whether the “death knell doctrine” requires plaintiff to immediately appeal the sustaining of a demurer as to class claims when the ruling resolved both individual and class claims, or whether the one final judgment rule applies and requires a single appeal from the subsequent entry of final judgment on all claims? For more details regarding Baycol, see the Appeals & Writs update page.
   

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Justice Carlos Moreno of the California Supreme Court announced today that he will be retiring from the Court, effective February 28, 2011.  The surprise announcement, coming on the heels of Chief Justice Ronald M. George's retirement, gives new Governor Jerry Brown his first Supreme Court appointment only days into his term.

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For the final day of our profile of retiring California Chief Justice Ronald M. George, we offer our own subjective list of the Chief Justice’s most notable opinions. If anyone has a nomination for a favorite case that belongs on this list – and there are many important opinions that aren’t here – explain in the comments section.

In re Marriage Cases, 43 Cal.4th 757 (2008) – Reversing the Court of Appeal, the Supreme Court held that provisions of the Family Code defining marriage as between a man and a woman violated the fundamental constitutional right to marry of all Californians. This was so for several reasons: (1) the exclusion of gay couples from the designation of marriage was not necessary to afford full protection to the rights and benefits accorded opposite-sex couples; (2) denying the designation "marriage" to same-sex couples would impose appreciable harm on such couples and their children; (3) denying same-sex couples the designation of "marriage" would be perceived as reflecting an official view that such relationships are of lesser dignity, and that same-sex couples and gay individuals are in some respects "second-class citizens."

Costa v. Superior Court, 37 Cal.4^th 986 (2006) – In a legal challenge to Proposition 77, the Supreme Court found that where a challenger questioned whether an voter initiative was properly before the voters – as opposed to the substantive validity of the change in law made by the initiative – it should, as a general matter, be resolved before the election. The Court further held that technical deficiencies in referendum and initiative petitions should not invalidate the petitions if they are in substantial compliance with statutory and constitutional requirements.

Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028 (2005) -- The Supreme Court held that a plaintiff's refusal to follow an order which he or she reasonably believed to be discriminatory was a protected activity within the meaning of the Fair Employment and Housing Act, so long as the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful manner. The Court concluded that the appropriate test for determining an adverse employment action within the meaning of the statute was whether the action materially affected the terms and conditions of employment.

Miller v. Department of Corrections, 36 Cal.4th 446 (2005) – Reversing the Court of Appeal, the Supreme Court held that a plaintiff could establish an actionable claim under the FEHA by demonstrating, in a case involving a supervisor who allegedly gave favorable employment opportunities to a person with whom he was having an affair, that the sexual favoritism was so severe or pervasive as to alter his or her working conditions and create a hostile environment.

Aguilar v. Avis Rent a Car System, Inc., 21 Cal.4th 121 (1999) – In an action for employment discrimination and wrongful discharge, the trial court entered an injunction directing defendant to cease and desist from using derogatory racial or ethnic epithets directed at Hispanic/Latino employees. The Supreme Court affirmed, holding that the injunction was not a prior restraint barred by the First Amendment. The Court pointed out that the vice of a prior restraint is that communication will be suppressed before an adequate determination that it is unprotected by the First Amendment. Plaintiffs' speech, in contrast, had been adjudicated to be unprotected on the grounds that it contributed to a hostile working environment. The Court held that enjoining the continuation of unprotected speech was not contrary to the Federal or state constitution.

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) -- The Court held that as a general matter, the First Amendment protects the right of access to civil trials and proceedings. Under Code of Civil Procedure Section 124, a proceeding may not be closed unless the trial court provides public notice of the intent to hold closed proceedings; and after a hearing, expressly finds that (1) an overriding interest supports closure, (2) there is a substantial likelihood of prejudice to that interest absent closure, (3) the closure is narrowly tailored to protect the threatened interest, and (4) there is no less restrictive means available.

Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670 (1998) -- Plaintiff's application to serve as an assistant scoutmaster was rejected, and he sued under the Unruh Act, alleging that the rejection was on grounds of his homosexuality. The Supreme Court held that the Boy Scouts were not a "business establishment" within the meaning of the Unruh Act, noting that although the Scouts regularly engaged in business transactions with nonmembers, the primary function of the Scouts was to inculcate certain values in youth members. Nor did business transactions with nonmembers involve sale of access to the basic activities or services offered by the organization.

American Academy of Pediatrics v. Lungren, 16 Cal.4th 307 (1997) -- The Supreme Court affirmed a judgment permanently enjoining the enforcement of a state statute requiring parental consent or judicial authorization before a minor may obtain an abortion. The Court acknowledged that certain parental consent laws had been upheld at the Federal level, but pointed out that the right to privacy protected by the state constitution was, in many contexts, broader and more protective of privacy than the federal right. The Court held that because the statute intruded upon an interest fundamental to personal autonomy, it was subject to scrutiny under the compelling interest test. The Court concluded that the statute could not be upheld on the grounds that it was necessary to protect the health of a pregnant minor, or to protect the minor's relationship with her parent.

Vons v. Seabest Foods Inc., 14 Cal.4th 434 (1996) -- In a case arising from an e coli outbreak, the Supreme Court held that the trial court could constitutionally exercise specific jurisdiction over a cross-claim between a meat supplier and certain franchisees. The Court pointed out that the cross-defendants' franchise agreements -- which specified that California law governed disputes -- controlled the purchase of ingredients, training, equipment and cooking procedures. The Court concluded that the cross-claim was sufficiently related to two contracts substantially connected to California -- the franchisees' franchise agreement, and their contract with the meat supplier -- to serve as a basis for jurisdiction.

Warfield v. Peninsula Golf & Country Club, 10 Cal.4th 594 (1995) -- In an action arising from a country club's termination of a woman's country club membership, the Supreme Court held that the Club was a "business establishment" subject to the Unruh Act. The Court emphasized the Club's interaction with the public: (1) the Club regularly permitted nonmembers to rent facilities for a fee; (2) the Club regularly obtained income from fees for the use of its facilities, and the purchase of food and beverages; (3) the Club obtained indirect financial benefit from the regular business transactions with nonmembers conducted on the premises. The Court also rejected the defendant's claim that subjecting the Club to the Unruh Act would violate its members' constitutional right to freedom of association.

Knight v. Jewett, 3 Cal.4th 296 (1992) -- In an action arising from an informal game of touch football, the Supreme Court granted review to determine the proper application of assumption of the risk, if any, following the adoption of comparative negligence. The Court held that the cases in which assumption of the risk had been applied could be divided into two classes: "primary assumption of the risk," referring to cases in which the court concluded that defendant owed plaintiff no duty to protect him from a particular risk; and "secondary assumption of the risk," meaning cases where defendant did owe a duty, but the plaintiff knowingly encountered the risk. The Court held that while "primary assumption of the risk" was still viable under a comparative negligence regime, "secondary assumption of the risk" was merged into the comparative negligence analysis. "Primary assumption of the risk," the Court found, depended not upon the reasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged, and the relationship of the defendant and the plaintiff to that activity or sport.

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In the first two posts of this series, we've reviewed Chief Justice George's career prior to his judicial service, and his early years as a Judge of the Los Angeles Superior Court and a Justice of the Court of Appeals. Today, we turn to a review of the Chief's more than eighteen years on the California Supreme Court.

 Chief Justice George was appointed to the Supreme Court by Governor Pete Wilson on July 29, 1991, replacing the retiring Justice Allen Broussard. "At the risk of being immodest," Governor Wilson said as he announced the nomination, "I don't see how I could have done better." The Judicial Nominees Evaluation Commission agreed with Governor Wilson's assessment, rating George "exceptionally well qualified." During his five years as a moderate member of the Lucas Court, the Chief Justice wrote a variety of important opinions for the Court on subjects such as civil rights, domestic relations and the California initiative system.

In late 1995, Chief Justice Lucas announced his retirement. Governor Wilson nominated George on March 28, 1996, as the twenty-seventh Chief Justice of California. Once again he received a rating of "exceptionally well qualified" from the JNE Commission, and the Chief Justice was resoundingly confirmed by the voters in 1998, winning retention by a three-to-one margin.

Chief Justice George's tenure has been a time of fundamental reform for California's court system. As the Chief Justice recalled earlier this year in a speech to the State Bar, he assumed office as Chief Justice in the midst of yet another state financial crisis. "I was determined to improve the fiscal security of the trial courts," he said. Many counties were facing "substantial closures and cutbacks in courtroom and clerk's office services as well as widespread employee layoffs." The Chief Justice's first major goal was achieved the following year when, in the waning hours of its legislative session, the Legislature enacted a bill creating a statewide system of funding for California's courts.

The second major reform of the Chief Justice's tenure came only one year later. When the Chief Justice took office, California's judiciary was a maze of over two hundred different superior and municipal courts. The result -- as the new Chief Justice observed in the course of visiting all fifty-eight of California's counties in those early years of his term -- was overlapping of services and inefficiency. As the Chief Justice recalled earlier this year: "Too often, courts were struggling in solitude to meet their obligations, without anywhere to turn. I found the equivalent of the wheel being reinvented in country after county."

All that changed in 1998 when the electorate approved a constitutional amendment permitting the counties' superior and municipal courts to unify into a single trial court for each county. Within three years, judges in every county had voted to unify.

In 2002, Chief Justice George achieved another major goal with passage of the Trial Court Facilities Act, which transferred responsibility, and in many cases ownership, of the 532 court facilities scattered around the state from the individual counties to the judicial branch. Six years later, a $5 billion revenue bond measure was approved, providing financing for forty long-overdue court construction and modernization programs.

The Chief Justice has received dozens of honors for his service throughout his judicial career. In recent years, these have included the James Madison Freedom of Information Award from the Society of Professional Journalists (2003), the Matthew O. Tobriner Public Service Award from the Legal Aid Society of San Francisco (2006), the American Judicature Society's Opperman Award for Judicial Excellence (2006) and the Champion of Justice Award from the Bar Association of San Francisco. In 2009, the Chief Justice was inducted as a Fellow of the American Academy of Arts and Sciences.

Join us tomorrow as we conclude our profile with our nominations for the Chief Justice’s most notable opinions.

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Yesterday, in the first post of this series, we considered Chief Justice George’s career prior to his elevation to the bench. Today, we continue with the Chief’s service on the trial bench and the California Court of Appeal.

The Chief Justice was appointed to the Los Angeles Municipal Court on April 20, 1972 by Governor Ronald Reagan. He was thirty-two years old. “I sort of felt and looked like the boy judge,” he told a newspaper reporter in 1996. He served as Supervising Judge of the West Los Angeles Branch of the Court in 1974-75, where he instituted several reforms, including a master court operation and seeing that forms were provided in Spanish translation. He was elected to a six-year term on the court without opposition in 1976.

Chief Justice George was elevated to the Los Angeles Superior Court on December 23, 1977, this time by a Democratic Governor – Jerry Brown. He was elected to six-year terms, again without opposition, in 1978 and 1984.

In 1981, then-Judge George was assigned to preside in the case of the Hillside Strangler, People v. Angelo Buono. The case nearly went off the rails in the pretrial stages when Kenneth Bianchi, an accused accomplice who had entered into a plea bargain agreement requiring him to testify, gave an unbelievable performance on the stand, ultimately testifying that he did not know whether he was telling the truth in saying Angelo was involved in the murders.

Concluding that Bianchi would never withstand cross-examination, the District Attorney’s office responded by moving to dismiss all ten counts of murder against Buono. In a courageous ruling, Judge George denied the motion to dismiss, concluding that there was sufficient evidence to corroborate Bianchi’s testimony and convict Buono. Not long after, the District Attorney withdrew from the prosecution, which was then undertaken by Attorney General George Deukmejian.

The trial was arduous -- jury selection consumed over three months, and the prosecution’s case involved more than a thousand exhibits and two hundred fifty witnesses. The Government’s closing argument took eleven days. But  finally, in the fall of 1983, what was at the time the longest criminal trial in U.S. history concluded with verdicts of guilty against Buono on nine of ten murder counts.

Following the Hillside Strangler case, George became Supervising Judge of the Criminal Division. On July 23, 1987, he was appointed to the Second District of the Court of Appeal, this time by Governor George Deukmejian.

Join us tomorrow as we review Chief Justice George’s nineteen years of service on California’s Supreme Court.

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On January 3, 2011, the twenty-seventh Chief Justice of California, Ronald M. George, will conclude over thirty-eight years of service on the California bench. To mark the retirement of this great California jurist, we begin a four part profile on state's third longest-serving Chief Justice.

Born in March 1940, Chief Justice George graduated from Beverly Hills High School in 1957. Following high school, the Chief attended the Woodrow Wilson School of Public and International Affairs. At the time, he planned to make his career in the Foreign Service.

All that changed at age nineteen, when he spent the summer between his sophomore and junior years in college hiking around West Africa and meeting American diplomats. "Most of them seemed to just be congregating amongst themselves and having very little contact with the local populace and not having much, if any, of an impact on the problems of the area," the Chief Justice recalled in a 1996 newspaper profile.

So he decided to attend law school. "I decided . . . that a law degree would offer the most options for whatever form of public service I might choose to pursue." The Chief Justice graduated from Stanford Law School in 1964.

Following law school, the Chief Justice joined the Attorney General's office as one of then-Attorney General Stanley Mosk's deputies. During seven years in the Attorney General's office, the Chief Justice handled a number of high-profile cases. The Chief was unsuccessful in one of his highest profile cases, People v. Anderson, where the Supreme Court struck down California's death penalty, but he prevailed not long after that in People v. Sirhan, where the Court affirmed the conviction of Sirhan Sirhan for assassinating Senator Robert F. Kennedy.

Chief Justice George served as counsel and argued six cases before the United States Supreme Court, including several which are still familiar to criminal law practitioners: Chimel v. California (invalidating warrantless search of entire house in connection with arrest of burglary suspect); Hill v. California (approving search incident to arrest, although police arrested the wrong person) and McGautha v. California (allowing jury to choose between life or death without governing standards not unconstitutional in capital cases) All together, the Chief Justice handled over one hundred appeals and writs, ending his career in the AG's office with a year as Administrative Assistant in charge of the Los Angeles office.

Join us tomorrow as we turn to the early years of the Chief Justice's judicial career.

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Following the recent retirement of Justices Scotland and Sims, as well as the elevation of Justice Tani Cantil Sakauye to the California Supreme Court, the California Commission on Judicial Appointments has now confirmed four appointments for the Third Appellate District. First, Associate Justice Vance W. Raye, who has served on the Court of Appeal, Third Appellate District since 1991, was confirmed as Presiding Justice. The Commission also confirmed three new associate justices for the Third Appellate District:

• Judge Elena J. Duarte, who has served on the Superior Court of Sacramento County since 2008, having also served as a Superior Court Judge in Los Angeles (2007-2008), and as an Assistant U.S. Attorney for the Central District of California (1994-2007).

• Ms. Andrea Hoch, who has served as the Governor’s Legal Affairs Secretary since 2005, having previously served as the Administrative Director of the Division of Workers’ Compensation (2004-2005) and in the Office of the Attorney General (1992-2004).

• Judge William J. Murray, Jr., who has served on the Superior Court of San Joaquin County since 1995.
   

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While avoiding the marijuana legalization debates raging in the state, the California Supreme Court confirmed that orders compelling five medical marijuana dispensaries to comply with subpoenas issued by the City of Dana Point were appealable, reversing the dismissal by the Court of Appeal in these consolidated cases. In Dana Point Safe Harbor Collective v. Superior Court, S180365, the Court held that the order enforcing the legislative subpoena and compelling the production of documents was a final order for purposes of an appeal, returning the matter to the Fourth Appellate District, Division Three, of the Court of Appeal for further proceedings. In doing so, the Supreme Court specifically declined to address the ancillary issue of whether an appealing party is entitled to a stay of enforcement of the subpoena pending appeal. Having resolved a split in the Courts of Appeal, the Supreme Court disapproved Bishop v. Merging Capital, Inc.(1996) 49 Cal.App.4th 180, People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526, and Barnes v. Molino (1980) 103 Cal.App.3d 46, to the extent they are inconsistent with its holding. For more details regarding Dana Point Safe Harbor Collective, see the Appeals & Writs update page.

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Code of Civil Procedure § 1021.5 allows for the recovery of attorney fees from the opposition under certain circumstances when a successful litigant acts as a private attorney general.  While it was well established that a financial interest in the matter can disqualify a party from an award under § 1021.5, it was disputed as to whether a non-financial interest could also disqualify a successful litigant from such a recovery.  In Conservatorship of Roy Whitley, the Supreme Court unanimously resolved this dispute by holding that “a litigant‘s personal nonpecuniary motives may not be used to disqualify that litigant from obtaining fees” under § 1021.5. In Whitley, the interest of the successful litigant was the appropriate care for her disabled brother, but she had no pecuniary interest as the case involved injunctive relief and the mandatory procedures for transferring a disabled person. It was not disputed that an important public right was at issue. The Supreme Court held that the application of § 1021.5 was conditioned on the “financial burden of private enforcement,” i.e., the existing financial incentives and burdens, and not on any nonpecuniary interest in the outcome.

To the extent they disagree with this conclusion, the Court disapproved of Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (2000) 79 Cal.App.4th 505, Hammond v. Agran (2002) 99 Cal.App.4th 115, and Punsly v. Ho (2003) 105 Cal.App.4th 102. For more details about Whitley, see the Attorney Related update page.
 

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With so much press devoted to political candidates and state propositions, there has been little attention to the three California Supreme Court justices who are standing for election tomorrow. Associate Justice Tani Gorre Cantil-Sakauye, currently sitting on the Third District Court of Appeal, is seeking confirmation of her nomination as the new Chief Justice, while Justices Ming W. Chin and Carlos R. Moreno are seeking to retain their existing positions on the Supreme Court. While a terse profile for all three justices is provided in the Voter’s Guide supplied by the Secretary of State, more detailed profiles are available:

• Associate Justice Tani Gorre Cantil-Sakauye
  • Official Court Profile
  • Judgepedia
  • News America Media

• Justice Ming W. Chin 
  • Official Court Profile
  • Judgepedia
  • Law.com
     
• Justice Carlos R. Moreno
  • Official Court Profile
  • Judgepedia
  • Our Previous Profile (as a potential nominee for the U.S. Supreme Court)
     

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The California Supreme Court has scheduled oral argument in three civil cases for hearing in Los Angeles in December 2007.

• Cortez v. Abich, which will address the extent of the household domestic service exception to Cal-OHSA (Labor Code section 6300 et seq.) in light of the defendant home owner’s remodeling project, which added a new master bedroom, a new master bath, a new garage in place of a carport, and a new roof. For more details about Cortez, see the Employment – Other update page.

• Sonic-Calabasas A, Inc. v. Moreno, addresses two 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? For more details about Sonic-Calabasas A, Inc., see the Employment – Other update page.

• California Farm Bureau Fed. v. California State Water Resources Control Bd., which evaluates Water Code § 1525: (1) Does § 1525, which was amended by the Legislature by majority vote in 2003 to impose annual fees on the persons and entities holding permits and licenses issued by the State Water Resources Control Board, impose an invalid tax or a lawful regulatory fee? (2) If §1525 is valid, may the Water Resources Control Board permissibly collect a fee levied on an entity which has sovereign immunity from a person or entity who has a contract with the immune sovereign? (3) If the statutory scheme is valid, but the regulations implementing it are invalid, did the Court of Appeal err in limiting refunds to only those persons and entities filing petitions for reconsideration before the Water Resources Control Board? For more details about California Farm Bureau Fed., see the Taxation & Assessments update page.

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The Supreme Court has granted review in two civil cases:

• Aryeh v. Canon Business Solutions, Inc., S184929, in which the Court will address the application of the continuing violation doctrine, the continuous accrual doctrine, and the delayed discovery rule to actions brought under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). For more details regarding Aryeh, see the B & P 17200/Class Actions/Commercial update page.

• City of Alhambra v. County of Los Angeles, S185457, in which the Court will address whether a county is barred from taking into account money diverted to a city from the county’s Educational Revenue Augmentation Fund when determining that city’s share of costs incurred by the county in assessing and allocating property taxes. For more details about City of Alhambra, see the Taxation and Assessments update page.
   

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A public utility, Pacific Gas and Electric Company, owns easements across rural properties traversed by its electric transmission lines.  The easements typically, as here, authorize PG&E to trim vegetation in the vicinity of its power lines to prevent accidental contacts that can cause fires and related damages.  After such a fire caused massive and widespread destruction and power outages in the Northeast and southern Canada in 2003, PG&E and other utilities across the country began trimming more aggressively to prevent, to the extent possible, accidental contacts.  The California Public Utilities Commission had regulated the vegetation management practices of the state’s utilities, establishing minimum (but not maximum) power line clearances.

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The Court will hear oral argument on four civil cases this November, addressing a variety of issues:

• Cassel v. Superior Court. (Wasserman, Comden, Casselman & Pearson),S178914: (1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evid. Code §§1115 through 1128? (2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evid. Code §§1119(c) and 1122(a)(2)? Oral argument is scheduled for 11/2/10. For more details about Cassell, see the Attorney-Related update page

• Kwikset Corp. v. Superior Court, S171845: Does a plaintiff’s allegation that he purchased a product in reliance on the product label’s misrepresentation about a characteristic of the product satisfy the requirement for standing under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that the plaintiff allege a loss of money or property, or is such a plaintiff unable to allege the required loss of money or property because he obtained the benefit of his bargain by receiving the product in exchange for the payment? Oral argument is scheduled for 11/3/10. For more details about Kwikset, see the Torts & Products update page.

• In re Enforcement Against Dana Point Safe Harbor Collective of City of Dana Point City Council Subpoena, S180365: Is an order compelling compliance with a legislative subpoena issued under Gov. Code § 37104 appealable as a final judgment? This issue is raised in several consolidated matters after the Court of Appeal issued a series of unpublished orders that the underlying was not an appealable order and could only be challenged by petition for extraordinary writ. Oral argument is scheduled for 11/2/10. For more details about these consolidated matters, see the Appeals & Writs update page.

• International Assn. of Firefighters v. Public Employee Relations Bd., S172377: (1) Is the decision by the Public Employee Relations Board not to issue an unfair labor practices complaint under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.) subject to judicial review? (2) Is a decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining under the Act? Oral argument is scheduled for 11/3/10. For more details about International Assn. of Firefighters, see the Employment -Other update page.
   

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The Court has recently granted review in two civil cases:

• Ralphs Grocery v. United Food & Commercial Workers Union, S185544, in which the Court of Appeal, formerly 186 Cal.App.4th 1078, held that the state cannot force the owner or possessor of real property that is not a public forum to give an uninvited group (in this case, a union) access to private property to engage in speech based on the content of the speech, in light of the First and Fourteenth Amendments of the U. S. Constitution. The Supreme Court will also address whether the parking area and walkway in front of the entrance to plaintiff’s retail store, which is part of a larger shopping center, constitute a public forum under Robins v. Pruneyard Shopping Center and its progeny. For more details, see the Civil Rights update page.

• American Nurses Ass. v. O'Connell, S184583, in which the Court of Appeal, formerly at 185 Cal.App.4th 393, held that current California law does not allow designated voluntary school personnel, who are not licensed nurses, to administer insulin to diabetic students who require the injections under a Section 504 Plan (29 U.S.C. § 794; 34 C.F.R. § 104.1 et seq.) or Individualized Education Program (IEP) (20 U.S.C. § 1414(d)), and affirmed an injunction barring the practice. The Supreme Court will also address whether state law is preempted by federal law requiring equal access to education. For more details, see the Other update page.
   

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The California Supreme Court has released its annual report describing the operations of the Court from 2009 to 2010. The Court issued 105 opinions in this period, 42 of which were in civil cases. However, this does not account for the 30 habeas corpus petitions denied by order, so the court’s workload continues to be dominated by criminal matters. While the total filings with the court increased to 9,917 (from 9,556), the court’s output was reduced from 110 opinions in the prior year, and total dispositions decreased by almost 2%. One factor might have been the mandatory furlough, which decreased total work hours by over 4%. In addition, the last conference of the court was delayed into the next fiscal year to accommodate judicial confirmation hearings. Interestingly, the number of civil petitions for review decreased to 1,219 (from 1,307). This was offset by an increase in criminal filings, particularly habeas corpus petitions in non-capital criminal matters. Depublication orders reached a record low of four, beating the previous record of ten in 2007-2008. This compares to the 1980’s and early 1990’s, in which the court regularly depublished over 100 opinions each year. The Court issued a single publication order.

This follows a report by the AOC Office of Court Research on the fiscal year 2009, which shows that filings in the California Superior Court topped 10 million for the first time, a 7% increase from 2008 and a 20% increase over the last ten years. This reflects an increase in each major category (civil, criminal, family and juvenile) although the largest increase was in civil filings –with unlimited civil filings increasing more than 17% and limited civil filings increasing almost 14%. The increase in unlimited civil filings was largely driven by nontort cases, as the number of tort cases filed only increased by 2%. While data on unlimited filings in incomplete, a similar trend is apparent.
 

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• Pineda v. Bank of America addresses the controlling statute of limitations over a claim to recover penalties for the late payment of final wages and whether such penalties can be recovered under Bus. & Prof. Code § 17203. For more details on Pineda, see the Employment – Compensation & Benefits update page.

• Conservatorship of Roy W addresses whether a prevailing party can be denied attorney fees under C.C.P. § 1021.5 because the prevailing party had a significant non-pecuniary personal interest in the outcome of the litigation. For more details on Roy W, see the Attorney-Related update page.

• Martinez v. Regents of University of California addresses a challenge by out-of-state U.S. citizens regarding the validity under federal law of Education Code § 68130.5, which provides that undocumented aliens are exempt under certain circumstances from paying the nonresident tuition at State University and California Community Colleges which out-of-state U.S. citizens are required to pay. For more details on Martinez, see the Other update page.
   

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The Supreme Court has granted review to again address preemption, this time in the timely area of consumer protection and banking. In Parks v. MBNA American Bank, the Court of Appeal reversed a judgment on the pleadings, finding that Civil Code § 1748.9, a state consumer protection law which mandates specific notice requirements regarding the use of preprinted checks (aka convenience checks) as an advance on credit card accounts, was not preempted by the National Bank Act (12 U.S.C. § 21 et seq.) on its face. For more details about Parks, see the B & P 17200/Class Actions/Commercial update page.

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This case arises out of an insured’s claim against its insurer for property damages caused by an earthquake that struck the Los Angeles area in 1984.  After a protracted dispute (during which the insurer made substantial payments) over the value of the claimed damages, and the extent to which they were earthquake-related, the parties entered into a settlement agreement.  The insurer agreed to pay an additional $1.5 million, and the insured executed a standard release by which it waived its right to recover any undiscovered damages and agreed to forbear bringing suit on any and all claims, known or unknown.

Several years later, the insured brought a lawsuit seeking to recover additional damages under the policy.  It argued that it was fraudulently induced into entering into the settlement agreement and that under general contract principles it could elect to affirm the agreement (and thus keep the money it had already received) and sue for damages caused by the alleged fraud.  The trial court, relying on decades of precedent from the Supreme Court and the Court of Appeal, as well as the statutory scheme governing settlements and releases, granted dispositive motions in favor of the insurer.  The authorities, the court said, made clear that a party seeking to undo a settlement agreement must seek rescission and return any monies obtained as consideration for the release.  The Court of Appeal reversed.  Distinguishing the prior authorities on the basis that they involved third-party personal injury claims, rather than first-party breach of contract claims, the court found that public policy supports the rule (followed in several jurisdictions) that a policyholder may affirm, keep the money, and sue, despite having executed a full release.

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The California Commission on Judicial Appointments has unanimously confirmed the nomination of Associate Justice Tani Gorre Cantil-Sakauye, of the Third Appellate District of the Court of Appeal (Sacramento), as the new Chief Justice of California.

In the same session, the Commission also confirmed by unanimous vote: 

• The appointment of Judge Louis R. Mauro, of the Superior Court of Sacramento County, as an Associate Justice of the Court of Appeal, Third Appellate District

• The nomination of Judge Carol D. Codrington, of the Superior Court of Riverside County, as an Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two (Riverside).

• The nomination of Associate Justice Brad R. Hill, of the Court of Appeal, Fifth Appellate District (Fresno), as Presiding Justice of the Court of Appeal, Fifth Appellate District.

Justices Cantil-Sakauye, Codrington and Hill will stand for election in their new positions in the November 2010 election.
 

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In a case brought to enforce a settlement reached at mediation, a dispute arose about the final terms of the settlement reached. One of the parties offered the declaration of the mediator to confirm the accuracy of the attached agreement. In Radford v. Shehorn, the Second District Court of Appeal held this was inadmissible under Evidence Code § 703.5, which declares that a mediator is incompetent "to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding...." The court ruled that this extended to a statement regard the terms of any agreement reached. While the parties can waive this restriction, in Radford the dispute extended to whether the signed waiver was actually part of the agreement. With that in dispute, the mediator remained barred from testifying. Ultimately, this error was found harmless, as a declaration of counsel confirming receipt of the agreement from opposing counsel was found sufficient to identify the final agreement. Note: Radford is consistent with an earlier case, Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, which barred a party from deposing the mediator in an action to correct the written agreement signed at the mediation.

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• Murray v. Alaska Airlines, Inc. holds that collateral estoppel applies to the administrative findings of a federal agency when those findings were subject to objection and judicial review that was never pursued, resulting in a final nonappealable order based on those findings. The Court found that in a subsequent civil lawsuit, those administrative findings have an issue-preclusive effect against the claimant who failed to challenge those findings and allowed them to become a final order and also failed to take any steps to withdraw his administrative complaint. For more details about Murray, see the Civil Procedure/Evidence/Discovery update page.

• Ruiz v. Podolsky holds that an arbitration agreement between a patient and treating physician extends to compel the heirs of that patient to arbitrate a wrongful death lawsuit when the agreement so extends by its own terms. The Court found that this result was compelled by C.C.P. § 1295, which by its terms intended to extend the arbitration of medical malpractice allegations to wrongful death claims. For more details about Ruiz, see the ADR update page.
   

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Labor Code § 351 bars an employer from collecting any gratuity that is left for an employee. Previous cases have addressed whether various tip pooling systems (i.e. systems which pool gratuities for division among a set of employees) operated by the employer are permitted under Labor Code § 351. Facing a split in the Court of Appeal on the existence of a private cause of action by the employee, the Supreme Court did not address the issue of whether the tip pooling system imposed in Lu v. Hawaiian Garden Casino was permitted. Instead, the Court unanimously ruled that Labor Code § 351 does not authorize a private right of action to sue an employer for allegedly taking gratuities. Finding no statutory language or legislative intent to provide such a remedy, the Court declined to create one. For more details about Lu, see the Employment-Compensation & Benefits update page.

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This week the Supreme Court granted review in three civil cases, covering a variety of issues:

• Greb v. Diamond International, in which the Court of Appeal, formerly at 184 Cal.App.4th 15, held that Delaware Gen. Corp. Law § 278 and not California Corp. Code § 2010 controlled whether a California plaintiff alleging personal injuries from asbestos could pursue a claim against a dissolved Delaware corporation when the complaint was filed more than three years after the dissolution of the corporation, thus barring the claim. For more details, see the Civil Procedure/Evidence/Discovery update page.

• Serrano v. Stefan Merli Plastering, in which the Court of Appeal, formerly at 184 Cal.App.4th 178 affirmed the denial of attorney’s fees under C.C.P. § 1021.5, finding that the trial court was within its discretion following Adoption of Joshua S. (2008) 42 Cal.4th 945, on the grounds that plaintiffs were protecting their own interests and only inadvertently triggered a published opinion which may have benefited others. For more details, see the Attorney-Related update page.

• Retired Employees Assoc. v. County of Orange, in which the Court certified review of the following issue: Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees. For more details, see the Employment – Compensation & Benefits update page.

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In Clark v. Superior Court, the Supreme Court considered the claims of elderly plaintiffs under California’s unfair competition law, Business & Professions Code, § 17200 et seq., which sought treble damages under Civil Code § 3345. Under Civil Code § 3345, which is part of the Consumers Legal Remedies Act, the trier of fact is authorized to impose a penalty (i.e. a remedy intended to punish or deter) three times greater than otherwise provided for by the authorizing statute, when considering specified types of conduct regarding claims brought by or on behalf of elderly or disabled persons. If the statute does not provide a specific amount, then the trier of fact is authorized to increase the penalty it would otherwise have imposed, up to triple the original amount. The Court first ruled that § 3345 is not limited to claims brought under the Consumers Legal Remedies Act, but applies as a penalty enhancement for any claim which satisfies the terms of § 3345. However, following this statutory language, only “penalties” are potentially tripled, not compensatory damages. As such, the Court also ruled that § 3345 does not apply to claims brought under Business & Professions Code §17200, et seq., since the only monetary award provided for there is for restitution, which is not a “penalty” by definition. For more details about the Clark case, see the B & P 17200/Class Actions/Commercial update page.

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In Reid v. Google, the California Supreme Court addressed and resolved a well-known procedural trap for California attorneys: if you file your objections to your opponent’s evidence on a summary judgment motion, but the trial court never specifically rules on them, are the objections preserved on appeal? The Supreme Court’s answer: “yes.”

In opposing a summary judgment motion, Google made numerous written objections to its opponent’s evidence (175, in fact). The trial court failed to specifically rule on the objections, merely stating that it was “relying only on competent and admissible evidence” pursuant to Biljac. After reviewing the legislative history of C.C.P. § 437c  , the Court found that once an objection is properly made, it is not waived on appeal. If the trial court fails to rule on the objection it is considered overruled and the trial court is presumed to have considered the evidence, but the objection is preserved for appeal.

In doing so, the Supreme Court disapproved: 1) bothAnn M. and Sharon P. to the extent they each hold that the failure of the trial court to rule on objections to summary judgment evidence waives those objections on appeal; 2) Biljac to the extent it permits the trial court to avoid ruling on specific evidentiary objections; and 3) numerous court of appeal decisions which were contrary to this ruling (see footnote 7 of the opinion). For more procedural history of Reid v. Google, see the Summary Judgment update page.
 

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California, like most states, has enacted a statute (Civil Code section 846) which provides that property owners have no duty to maintain their premises in a manner that makes them “safe” for recreational users of the land.  The statute was intended to encourage landowners to make their property available for recreational use without fear of exposure to liability, and California courts have, in a number of cases, read the statute expansively to promote that goal.  One decision, by an intermediate California appellate court (Shipman v. Boething Treeland Farms, Inc., 77 Cal.App.4th 1424 (2000), held that “recreational use immunity” barred a claim by a recreational user that he was injured by the landowner’s negligent operation of a motor vehicle on the property.

In Klein v. United States of America, __Cal.4th__ (July 26, 2010), plaintiff was riding a bicycle on a paved road in a National Forest when he was struck by a vehicle driven by a Park Service employee.  Under governing law, the liability of the United States was controlled by California tort principles.  A lawsuit was brought in federal district court, where summary judgment was granted in favor of the government based upon Shipman and other California authorities applying Section 846.  On appeal, the Ninth Circuit certified to the California Supreme Court the question whether Section 846 immunizes the landowner from negligent activities on the premises, or only from claims arising out of the nature and condition of the property itself.  The Ninth Circuit questioned whether Shipman was correctly decided, suggesting that the reasoning of certain Supreme Court opinions, while not directly on point, questioned its validity.

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Governor Arnold Schwarzenegger has named Associate Justice Tani Cantil-Sakauye of the California Court of Appeal as his choice to replace the retiring Hon. Ronald M. George as Chief Justice of the California Supreme Court.

Governor Schwarzenegger praised Justice Cantil-Sakauye's record in announcing the nomination:

Justice Tani Cantil-Sakauye has a distinguished history of public service and understands that the role of a justice is not to create law, but to independently and fairly interpret and administer the law.

Justice Cantil-Sakauye has served on the Third District Court of Appeal in Sacramento since 2005. Prior to joining the Court of Appeal, she was a superior court judge and earlier a municipal court judge, serving in each position for seven years. Justice Cantil-Sakauye was a deputy district attorney for Sacramento County from 1984 to 1988, before serving for two years in Governor Deukmejian’s administration.

Justice Cantil-Sakauye is a member of the California Judicial Council, where she serves as Vice Chair of the Rules and Projects Committee, chair of the Advisory Committee on Financial Accountability and Efficiency and co-chair of the Judicial Recruitment and Retention Working Group. She has served as a Special Master since 2007, appointed by the Supreme Court to conduct disciplinary proceedings before the Commission on Judicial Performance.

"It is a privilege and a tremendous honor to have the opportunity to serve as Chief Justice of the California Supreme Court," said Justice Cantil-Sakauye. “I deeply respect the inspirational and visionary work of Chief Justice Ronald George and hope to build upon it.”

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California Chief Justice Ronald M. George has announced today that he will be retiring from the Court, effective January 2, 2011. We will have a profile of this great California jurist soon.

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In Tverberg v. Fillner Construction, Inc., the Supreme Court resolved a conflict in the lower courts by holding that the peculiar risk doctrine does not make a hiring party liable for workplace injuries of an independent contractor or subcontractor. In doing so, the Court departed from the rationale in Privette, holding instead that an independent contractor, unlike an employee, has the ability to determine the manner in which inherently dangerous construction work will be performed, and thus assumes legal responsibility for carrying out the contracted work, including the selection of workplace safety precautions. Having assumed responsibility for workplace safety, an independent contractor is barred from holding a hiring party vicariously liable for injuries resulting from the contractor’s own failure to effectively guard against the inherent risks of the contracted work. As such, the Court reversed, while upholding the result, if not the specific rationale, in Michael v. Denbeste Transp., Inc. (2006) 137 Cal.App.4th 1082. For more Tverberg case history, see theTorts & Products update page.

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In Kleffman v. Vonage Holdings Corp., the Court addressed a legal question from the Ninth Circuit regarding the application of Business and Professions Code §17529.5(a)(2) to spam e-mails that were being sent from multiple domain names to avoid spam filters. While this statute bars spam which “contains or is accompanied by falsified, misrepresented, or forged header information” in an effort to curtail an explosion of spam traffic, the Court held that merely using multiple domain names did not violate this restriction, making the statute inapplicable unless the e-mail ran afoul of its restriction for some other reason. For more Kleffman case history, see the B & P 17200/Class Actions/Commercial update page.

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Last week the Supreme Court granted review in six civil cases, covering a wide variety of issues:

• Coito v. Superior Court, which addresses when witness statements are protected from discovery as work product. See Civil Procedure/Evidence/Discovery update.

• Professional Engineers in California Government v. Schwarzenegger, which the Supreme Court transferred on its own motion before the Court of Appeal ruled on the issues raised, in order to expedite review of the Governor’s ability to mandate a furlough program on state employees. See Employment – Compensation & Benefits update.

• SeaBright Ins. Co. v. U.S. Airways, Inc., which addresses the ability of an injured employee of an independent contractor to hold the hirer of the contractor liable for the breach of statutory or regulatory non-delegable duty. See Torts & Products update.

• Oasis West Realty, LLC v. Goldman, which addresses counsel’s duty of loyalty to a former client when there is no subsequent representation and the attorney is acting on his or her own behalf. See Attorney-Related update.

• St. John’s Well Child & Family Center v. Schwarzenegger, which addresses the application of the governor’s line item veto to mid-year bills that reduce appropriations. See Other update.

• Episcopal Church Cases, in which the court returns to a case already reviewed to address whether the Court of Appeal properly implemented the court’s opinion. See Civil Procedure/Evidence/Discovery update.
   

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In Martinez, the unanimous California Supreme Court affirmed the rulings of the lower courts by rejecting an attempt by agricultural workers to collect unpaid wages from food distributors who bought produce from that farm. In doing so, the court reviewed the history and jurisdiction of the Industrial Welfare Commission (IWC) and its work orders from 1916 to the present. The Court found that a civil action for unpaid wages authorized by Labor Code section 1194 was properly directed only to employers, and rejected attempts to expand the definition of "employ" as historically used by the IWC. For more Martinez case history, see the Employment-Compensation & Benefits update page.

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In March 2009, the California Supreme Court granted review in Hertz to address the issue of whether a worker’s inability to participate in vocational rehabilitation due to nonindustrial causes should be apportioned under Labor Code sections 4663 and 4664, as they were amended in 2004 by SB 899. The Court of Appeal had ruled that the statute required apportionment. (see H032438.) Briefing was complete, including several amicus briefs, and the matter was presumably waiting for oral argument. However, the Supreme Court has now dismissed this matter under Cal. Rules of Court, rule 8.528(b). As such, unless the court orders otherwise, the Court of Appeal opinion will remain unpublished

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In Simpson Strong-Tie Company, Inc., a manufacturer brought suit against an attorney who ran an advertisement regarding possible claims against the manufacturer's products and the trial court granted counsel's anti-SLAPP motion to strike. The California Supreme Court has now affirmed the judgment, holding that: 1) the plaintiff has the burden of proof in demonstrating the application of the commercial speech exception found in C.C.P. § 425.17(c) to anti-SLAPP motions and 2) the subject advertisement by counsel regarding potential claims against specified product manufacturers was not a statement by counsel “consisting of representations of fact about that person’s [i.e., counsel's] or a business competitor’s business operations, goods, or services.” As such, the advertisement did not fall within the commercial speech exception, and the manufacturer’s action was subject to an anti-SLAPP motion to strike. For more information regarding Simpson Strong-Tie Company, Inc., see the Civil Procedure/Evidence/Discovery update.

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In its weekly conference, see list of actions, the California Supreme Court granted review in:

• Jankey v. Lee, in which the Court of Appeal held that the Americans with Disabilities Act does not preempt Civil Code § 55, which entitles the prevailing defendant to attorney's fees upon defeating a claim for injunctive relief under the California Disabled Persons Act. See Attorney-Related update page.

• Diaz v. Carcamo, in which the Court of Appeal rejected an employer's argument that by conceding its liability under respondeat superior it was shielded from a claim that it was independently negligent in its hiring and retention of that same employee. See Torts & Products update page. In doing so, the Court of Appeal in Diaz distinguished two prior cases which held that an employer is protected from a claim of negligent entrustment upon such a concession. See Armenta v. Churchill (1954) 42 Cal.2d 448 and Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853.

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The California Supreme Court has scheduled oral argument in seven civil cases, five at the end of May and two in Los Angeles at the beginning of June. These hearings should address a wide variety of issues, including:

• Do employees have a private right of action against employers who take some of the tips? See the Lu case in the Employment-Compensation & Benefits update.
• Should CA recognize the "Stray Remarks" Rule in discrimination cases? See the Reid case in the Employment - Other update.
• Can an insured sue an insurer for fraudulently inducing settlement and seek to avoid the release without returning the money already paid? See the Village Northridge Homeowners Assn. case in the Insurance update.
• Does an administrative proceeding constitute a “suit” to trigger insurance coverage? See the Ameron Internat. Corp. case in the Insurance update.  
• Are non-signatory heirs bound by an arbitration agreement signed by the decedent? See the Ruiz case in the ADR update.
• Does the damages enhancement for actions brought by elderly plaintiffs apply to §17200 actions? See Clark case in the Damages update.
• Are evidentiary objections not expressly ruled on regarding an MSJ motion preserved for appeal? See the Reid case in the Appeals & Writs update.
• What is the preclusive effect of the investigatory findings of a federal agency? See the Murray case in the Civil Procedure/Evidence/Discovery update.

These cases represent about 10% of the civil cases currently under review by the Court.

Update: Oral argument in Ameron has been continued to the September 2010 calendar.

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In Runyon, the unanimous California Supreme Court ruled that whistleblowers employed with California State University do not have to exhaust their judicial remedies (i.e., petition for a writ of mandate) to bring a suit for damages, so long as they first exhaust their administrative remedies. While this ruling is consistent with previous whistleblower rulings by the high court, it expressly overturns the Court of Appeal opinion in Ohton insofar as it is inconsistent. While not mentioned, this instruction necessarily applies equally to Ohton II , which recently reaffirmed the portion of the original opinion addressed in Runyon. For more Runyon case history, see the Employment-Other update page.

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The California Supreme Court, in O'Neil v. Crane Co., No. S177401, is considering the liability of an equipment manufacturer under these circumstances:  The manufacturer sells a product pursuant to the buyer's specifications (say, a valve or pump) that is accompanied by an allegedly defective part (say, an asbestos-containing gasket) made by another, which is incorporated into a much larger and highly complex installation of machinery (say, the propulsion system for a Navy war vessel) designed by the buyer.  Over decades, the gasket is replaced many times during scheduled maintenance.  Eventually a replacement gasket, produced by an unknown third-party supplier, releases asbestos dust that causes injury.  May the original equipment manufacturer be found liable?
 
The first California Court of Appeal decision to address this question was issued by the First Appellate District (Division 1).  Taylor v. Elliott Turbomachinery Co., 171 Cal.App.4th 564 (2009). Taylor found the manufacturer was not liable because:

• it was not in the chain of distribution of the defective part, and received no profit or other economic benefit from the sale of the part;
• a manufacturer is not liable for an injury caused by a component part supplied by another unless the manufacturer's product caused or created the risk of harm, and
• a manufacturer is not liable where it simply produces a product pursuant to the specifications of a buyer who intends to incorporate it into a buyer-designed product unless the manufacturer's part itself caused the injury, which was not the case in Taylor.

The California Supreme Court declined  review.
 
Seven months after Taylor was decided, the Second District (Division 5) of the Court of Appeal handed down O'Neil v. Crane Co., 99 Cal.Rptr.3d 533 (2009).  O'Neil expressly rejected the holding and analysis of Taylor under analytically indistinguishable facts, concluding that the original product manufacturer may be liable on the theory that the pumps and valves were designed to be used in conjunction with asbestos-containing parts, and the foreseeable use of the product required maintenance which included periodic replacement and disturbance of parts containing asbestos.  If this foreseeable use caused injury, the court found, the manufacturer may be liable for that injury under established California law.  The Supreme Court granted the manufacturer's petition for review.
 
Shortly after O'Neil was decided, and before the Supreme Court granted review, another division (Division 3) of the Second District, in a published opinion, followed Taylor and ignored O'Neil in Merrill v. Leslie Controls, 101 Cal.Rptr.3d 614 (2009).  The Supreme Court issued a "grant and hold" in Merrill (that is, the court granted review and deferred briefing until O'Neil is decided).  Three months later, Division 2 of the Second District decided Hall v. Warren Pumps LLC, 2010 WL 528489 (unpublished) (2010), which also followed the reasoning and holding of Taylor.  A petition for review of Hall is pending, and undoubtedly the Supreme Court will issue a grant and hold in that matter as well.
 
Now yet another division of the Court of Appeal (Second District, Division 4) has expressed its views on the issue.  In a published opinion (Walton v. The William Powell Co., __ Cal.App.4th __, 2010 WL 1612209) the court explicitly adopted the analysis, conclusions, and holdings of Taylor while declining to address O'Neil or its reasoning in light of the Supreme Court's grant of review.  That the court decided to publish its views while breaking no ground not covered by Merrill suggests that is strongly wished its voice to be clearly heard while the Supreme Court is considering the question.  The Supreme Court will unquestionably issue a grant and hold in Walton; however, for those keeping score the number of justices voting for the Taylor view now stands at twelve, while there are three who support O'Neil.  The votes of the justices who will put the issue to rest is expected in the first half of 2011.

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In Pearson Dental Supplies, Inc. v. Sup. Ct., the court considered an arbitrator’s decision, pursuant to a mandatory arbitration agreement, that an employee’s discrimination claim was time barred. Since by failing to apply the tolling statute CCP § 1281.12, the arbitrator had committed “a clear error of law” which would deprive the employee of any review on the merits “of an unwaivable statutory employment claim,” the California Supreme Court ruled that the trial court could vacate the award. At the same time, the Court rejected an argument to strike down the arbitration agreement as a whole because it barred access to administrative remedies and set a one year limitations period. In concluding that it was “reasonably susceptible to a lawful interpretation,” the Court interpreted the restriction on administrative remedies as affecting only adjudicative agencies, such as the Labor Commissioner, while not affecting prosecutory agencies, such as the FEHA. For more case history, see the ADR update page.

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In conference Wednesday (see list of actions), the Court granted review in Save the Plastic Bag Coalition v. City of Manhattan Beach, in which the Court of Appeal upheld vacating a city ordinance banning the use of plastic bags because an environmental impact report was not prepared. See the Environmental update page. In addition, the Court granted review in Harris v. City of Santa Monica, in which the Court of Appeal reversed a plaintiff’s judgment for discrimination because the trial court had failed to give an instruction on mixed motives for her discharge. See Employment – Other update page. In a previous action outside of the weekly conference, the Court asked for additional briefing in Reid v. Google addressing exactly how a party can preserve evidentiary objections so that they are “made at the hearing.” See the Civil Procedure/Evidence/Discovery update page.
 

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California’s Unfair Competition Act has generated an enormous amount of litigation, and has long been a target of tort reform groups. Those reform efforts met with an important success in 2004, when the voters approved Proposition 64, finding that the statute had been “misused by some private attorneys” to file “frivolous lawsuits as a means of generating attorney’s fees.” Proposition 64 significantly tightened standing requirements for private enforcement suits based on the UCL.

Earlier this week, the Fourth District of the California Court of Appeal filed an important decision strengthening the arsenal of weapons available to defense counsel defending UCL suits.

Durell v. Sharp Healthcare [pdf] was a putative class action alleging violations of the UCL, the Consumer Legal Remedies Act, and various common law claims. Plaintiff had been a patient in the defendant’s emergency room several times, and he alleged that the defendant had engaged in deceptive and unfair practices by billing uninsured patients such as plaintiff its full standard rates, while accepting sharply reduced payments for Medicare and privately insured patients.

The UCL prohibits “unlawful, unfair or fraudulent” business acts. In 2009, the state Supreme Court held in In re Tobacco II Cases that Prop 64 meant that a plaintiff must show actual reliance on any supposed misrepresentation to plead a “fraudulent” act. The first question for the Court in Durell was whether Tobacco II applied equally to the “unlawful” prong of the statute.

The court unequivocally held that it did:

A consumer’s burden of pleading causation in a UCL action should hinge on the nature of the alleged wrongdoing rather than the specific prong of the UCL the consumer invokes.

But the court went even further. In Cel-Tech Communications, the state Supreme Court held that a competitor’s claim of an “unfair” act had to be tethered to an incipient violation of an antitrust law, or a comparable statute aimed at protecting competition. Since then, the districts of the Court of Appeal have been divided as to whether Cel-Tech applied to consumer actions. Durell came down firmly on the side of applying the restrictive Cel-Tech test to plaintiff’s action, a test he came nowhere near meeting. Plaintiff’s failure to plead causation was similarly fatal to his claim under the Consumer Legal Remedies Act.

Durell is an important reaffirmation of the voters’ will in Prop 64, and the message for the defense bar is clear: when defending a UCL case based on a purported misrepresentation, always begin by carefully studying plaintiff’s allegations of reliance.

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Demonstrating the potential significance and broad implications of the California Supreme Court's deliberations in Loeffler v. Target Corporation, so far a total of nine amicus briefs have been filed on behalf of sixteen entities addressing the issue of whether a taxpayer can directly bring suit against a retailer who allegedly charged a sales tax on transactions that were not taxable. The concerned entities unwilling to wait on the sidelines range from consumer groups and taxpayer advocates to statewide and national retailers, as well as the California Attorney General and the California State Board of Equalization. Some of these had also filed briefs with the Court of Appeal, which barred the taxpayer claim.

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In conference today (see list of actions), the Court granted review in Brown v. Mortensen, in which the Court of Appeal found that the Fair Credit Reporting Act preempted the restrictions imposed by the Confidentiality of Medical Information Act.  See B & P 17200/Class Actions/Commercial update page.  In addition, the Court also requested supplemental briefing in Murray v. Alaska Airlines, Inc. regarding the application, if any, its decision in McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88. See Civil Procedure/Evidence/Discovery update page.

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CAPPING AT THREE.  AB2740, a new version of an old bill pending in the California State Legislature, would cap the amount of punitive damages available in California to a flat three times the jury’s award of compensatory damages. AB2740 The previous version died in Committee.  The new iteration (tacked onto a National Guard bill, of all things) was alive and well as of late March, 2010.
 

• Should the measure pass, California would fall in step with many other States that impose some type of ceiling on punitive damages, whether flat-out monetary caps, caps keyed to a multiple of compensatory damages, caps based on defendant’s wealth or the nature of the act, the type of action (e.g., medical malpractice) or some combination, including: Alaska, Arkansas, Alabama, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Mississippi, Montana, North Carolina, North Dakota, New Jersey, Nevada, Oklahoma, and Texas.  That isn’t a comprehensive list, nor can AppellateStrategist list all the wrinkles and permutations in this post.  But the point is clear.  There’s a growing movement afoot to impose a bright line on the imposition of punitives, thereby streamlining or eliminating the current multipart constitutionality analysis mandated by State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, and BMW of North America, Inc. v. Gore (1996) 517 U.S. 559.

PRODUCT WARNING CASES.  AB2740 would also bar punitive damages in products cases if the warning accompanying the product was “either approved by, or in material compliance with,” a statute, or the standards, rules, regulations or requirements of the federal or state agency responsible for “regulating, evaluating, or approving the product.”  Should the bill pass, it would apply to every products-warning “case pending on or after the date of enactment regardless of when the case was filed.”

The sole exception is that the bar would not apply if plaintiff proves by clear and convincing evidence that defendant intentionally withheld or intentionally misrepresented information it was required to submit to the agency at any time, and the withholding or misrepresentation of that information was causally related to the injury or harm alleged.

AppellateStrategist will monitor the bill, and provide regular updates.  Stay tuned.

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Add yet another appellate opinion to the growing list of California courts that have cut punitive damage awards on constitutional excessiveness grounds. In this one, Amerigraphics, the jury awarded $3 million in punitive damages in an insurance bad faith case.  The trial court cut that number  to $1.7 million, but according to the California Court of Appeal (Second District, Division 2), that was not enough.  The constitutionally-permissible maximum was $500,000. 

At the risk of looking a gift horse in the mouth, the case is a mixed bag for insurer defendants.

One of the principal questions in deciding excessiveness is how bad – “reprehensible” -  the defendant’s conduct was.  That is determined under a scale of relative reprehensibility.  The theory is simple: relatively speaking, some acts and harms are worse, and therefore more deserving of punishment, than others.  For example:

1. Defendants who are repeat offenders – who have committed the act before – need a bigger punishment to discourage them from repetition, to get the message across.

Amerigraphics rejected the notion that an insurer which commits multiple acts in the handling of a single claim for benefits can be viewed as a “repeat offender.”  Though the insurer’s

“conduct could  be characterized as more than a single isolated incident, as the evidence showed several discrete acts of misconduct involving Amerigraphics’s claim for coverage under various policy provisions, the conduct at issue ultimately involved only one insured and one claim. There was no evidence presented that [the insurer] acted similarly toward other insureds in similar circumstances.”   (Emphasis added.)

More authority for the “one claim, one punishment rule.”  That’s as it should be.  Any act – such as the denial of a single claim for benefits – could theoretically be broken down into a series of smaller “sub-acts.” That doesn’t mean the punishment should be multiplied by the number of sub-acts.  (See also Walker v. Farmers Ins. Exch. (2007) 153 Cal.App.4th 965, 975; 63 Cal. Rptr. 3d 507)  Courts should not be in the business of finding ways to maximize a plaintiff’s punitive award.  By definition, in the constitutionality jurisprudence, the plaintiff is made whole by the compensatory award;  the punitive award punishes the defendant; it does not compensate the plaintiff for the injury.

2. Physical harm is worse than economic harm, but, relatively speaking, a defendant who causes economic injury to a financially vulnerable plaintiff deserves more punishment.  

Amerigraphics suggested that the very nature of the insurance relationship means that insureds will qualify as “financially vulnerable.”  The court relied on the “unique” nature of the relationship: insureds purchase policies “precisely to buy peace of mind and security.” Therefore, an insured is “not on equal footing . . . .” with its insurer.  That may have been true in the Amerigraphics case, which involved a small insured put out of business by the carrier’s claims handling, but it does not apply across the board, nor should it.  When, e.g., the insured is a large corporation with an insurance claim, the parties are on relatively equal footing.  The concept of financial vulnerability is not automatically satisfied merely because this is an insurance relationship.  Example in point: Slottow v. Amer. Cas. Co. of Reading, Pa. (9th Cir. 1993) 10 F.3d 1355, 1362 (applying Calif. law.)

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Statistics show that the number of civil cases accepted for review by California’s highest court has varied dramatically in recent years, but by any count, the numbers are still small.

According to a report released by the State’s Administrative Office of the Courts, for the year 2008, the California Supreme Court granted 6% of all civil petitions for review, down from 8% the previous year (2007) but up from the mere 3% granted in 2006. 

For 2008, out of a total of 5,989 civil petitions, the court
• denied just over 5,400
• outright granted 82
• granted and held 210
• granted and transferred 51 back to the intermediate court of appeal. 

These numbers may seem exceedingly low, but consider that many litigants just don’t understand the court’s limited function in reviewing decisions of the lower courts.  Review by the California Supreme Court is discretionary.  As a judicial policy maker, the court typically accepts only those issues that may affect other litigants or when necessary to resolve a conflict in the published decisions.  But many litigants do not understand this unique function, choosing to seek review even when they cannot satisfy these special requirements.  Thus, a great many petitions are denied out of hand.

Maximizing the chances for review:  read and comply with the court’s special requirements.  Follow the rules.  List the issue presented first, followed by an explanation of why this case deserves to be one of the select few that should make the cut.  The petition for review is less a legal document, explaining why the petitioner should win under the law, than it is a persuasive plea on why the court should hear the case.

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The problem of coverage for the so-called "innocent insured" is a recurring one.  The issue arises when there is more than one insured on the policy and one commits an act that would bar coverage.  Does that act bar coverage for all, or only for the intentional actor?  In California, this problem has reared its head again, or, more accurately, two heads, in the form of two cases the state Supreme Court has agreed to hear and decide.  One presents the issue in the context of property coverage, the other as whether there is a duty to defend the non-actor insured under a liability policy.

• Century National Ins. Co. v. Garcia, S179252, rev. gr. 3/17/10.  The state Supreme Court just granted review last week.  At issue is whether an insurer may enforce an exclusion in a fire policy that denies coverage to "innocent insureds" for damages from a fire intentionally caused by a coinsured.  The gist of the insured's argument is that California Insurance Code Section 2071 mandates the language of fire policies, and it couches the intentional acts exclusion in terms of "the insured."  Century National's policy barred coverage for all when any insured acted intentionally.  Garcia asks whether insurers may deviate from the statute's prescribed language, and to what extent.
   
• Minkler v. Safeco Ins. Co., S174106, question certified 8/12/10.  Minkler, now fully briefed, asks whether the severability clause in a liability insurance policy can trump an intentional acts exclusion which prohibits coverage for all insureds when "an insured" -- i.e., any insured -- has committed an excluded intentional act.  In Minkler, one insured committed child sex abuse.  The victim sued not only the abuser but his mother, also an insured, for negligently-supervising her adult son.  The victim and insured in Minkler argue that the severability clause creates separate insurance policies, and therefore, an "innocent" insured sued for negligently-supervising the intentional actor is entitled to a defense.  Their theory is that because there supposedly are "separate" policies, the only intent that is relevant is that of the mother, who never committed an intentional act.  The insurer, by contrast, contends that the severability clause was never designed to rewrite the plain language of the exclusions.  The insurer is represented by Appellate Strategist lawyers.

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The Appellate Strategist was the first blog to offer a comprehensive, regularly-updated database of civil issues -- broken down by category and subject matter -- that the California Supreme Court has agreed to hear and decide.

We are proud to announce two new features.

1. Since this "preview of coming attractions" has been one of our most popular features, we have expanded our reach to track and report on civil issues pending before the Texas Supreme Court and the Illinois Supreme Court.
    
2. In the coming months, we will be adding Florida, New York and New Jersey to our coverage of state Supreme Courts. 

We welcome your comments.

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Nacht & Lewis Architects, Inc. v. Superior Court may be the most widely cited case in California.  It seems to appear in most responses to Form Interrogatory Nos. 12.2 and 12.3 to justify refusing to produce recorded interviews of witnesses, any resulting attorney notes, or a list of interviewed witnesses.  Now those numerous discovery responses may be in question.  In Coito v. Superior Court, [pdf] California's Fifth District Court of Appeal considered and rejected Nacht, holding in a divided decision that attorney notes from witness interviews and the list of those interviewed will often be discoverable. 

These conflicting decisions leave two crucial questions unresolved. 1) Do the questions asked by counsel in an interview reveal counsel’s impressions, conclusions, opinions, or theories?  2) Does the selection of who to interview reveal the same?  Coito says not usually to both, Nacht says yes.  Given the frequency in which these issues arise, the state Supreme Court may be asked to intervene to clarify the issue and provide clear guidelines for California litigators and overworked trial courts.

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The California Court of Appeal has issued an opinion which, if allowed to stand, threatens to eat away at the once-settled body of law that prohibits third-party claimants who were injured by an insured from suing the insured's insurance company for unfair claims settlement practices under California Insurance Code § 790.03.  Over 20 years ago, the State Supreme Court held that only the State's Insurance Commissioner may pursue insurers for improper settlement practices under that statute; § 790.03 does not grant either insureds or third-party claimants the right to sue insurers for violating the statute's prohibitions.  (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287.)

But the new opinion -- from the intermediate appellate court -- would create a loophole that could accommodate a whole fleet of trucks.  (Zhang v. Superior Court (2009) 178 Cal.App.4th 1081.)  According to Zhang, if plaintiff's allegations are not limited to unfair claims handling, but also include "specific" allegations that the insurer "made fraudulent misrepresentations and promulgated misleading advertising" -- i.e., it never intended to pay covered claims -- the complaint will survive the insurer's demurrer challenge.  However, to prevail, plaintiff would be required to prove the insurer made false representations to the public and that the insurer had a policy that was inconsistent with these representations.

Zhang candidly acknowledged it disagreed with a prior opinion which held squarely to the contrary.  (Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061.)  The conflict in the published opinions of the intermediate appellate courts makes Zhang a prime candidate for review by the California Supreme Court.  Indeed, the high court extended its time to rule on the insurer's Petition for Review until March 9.  (Ptn. for Review filed 12/09/09, No. S18542.)

Zhang is a troubling opinion, and Appellate Strategist urges interested parties to support the insurer's petition.  It is easy enough to allege a policy or practice.  Under this decision, that alone is sufficient to defeat the insurer's demurrer against what should have been a stillborn claim.  The value of Moradi-Shalal is that it deals an immediate fatal blow, saving defendants the time and expense of discovery and trial on allegations a plaintiff cannot possibly prove.  If Zhang survives, the insurer cannot defeat the suit short of a motion for summary judgment, and perhaps not even then.

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In 2003, Congress enacted the latest version of the Medicare Act.  It contained far broader language than previous versions on what State law claims it preempted: “The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA [Medicare Advantage] plans which are offered  by MA organizations under this part.” (42 U.S.C. § 1395w-26(b)(3).) 

The scope and meaning of this new preemption language is being litigated around the country, but as yet precious few cases have made their way through the appellate courts.  One that has comes out of California.  In Yarick v. PacifiCare of California (2009) 179 Cal. App. 4th 1158, the State’s intermediate Court of Appeal held the 2003 Act expressly preempted the enrollee’s statutorily-based state causes of action, and impliedly preempted state common law claims.  Yarick also rejected plaintiffs’ argument that the licensing exception within the Medicare Act's preemption clause could save the claims. Months before, the Ninth Circuit Court of Appeals had reached a similar conclusion, but then granted rehearing.  (Uhm v. Humana, Inc. (9th Cir. Docket No. 06-35672).  Since a grant of rehearing vacates a published opinion, the score rolled back to zero. 

Now the score is back to Plans: 1; enrollees: 0.  As of this writing, Yarick is the only published appellate case anywhere in the country to address the preemption defense on the merits. (Previously, the Eleventh Circuit Court of Appeals rejected an argument that the Medicare Act completely preempted state law claims to afford federal court's subject matter jurisdiction. (Dial v. Healthspring of Alabama, Inc. (11th Cir. 2008) 541 F.3d 1044).)    This is an important and recurring issue, and we haven’t heard the last of it.  Expect to see all manner of decisions on this hot-button question from courts around the country.  As those opinions come down, Appellate Strategist will report on them, and provide a running total  box score.

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Can a California trial court reduce a personal injury plaintiff's recovery for medical expenses to reflect the amount actually paid by his health insurer?  That question matters a lot to attorneys, parties and insurers, trying to value claims and where appropriate, seek settlements in thousands of cases every day.

For twenty years, the answer under California law was "yes," as held in Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.  In November, California's Fourth District Court of Appeal held that the answer was "no."  Howell v. Hamilton Meats & Provisions, Inc. [pdf] (2009) 179 Cal.App.4th 686.

On March 10, 2010, the California Supreme Court agreed to review Howell and resolve the conflict.  By virtue of the Court's order, Howell is automatically depublished and non-citable, making Hanif and Nishihama the only precedent on this important question until the Supreme Court speaks in Howell.

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The California Supreme Court's website is a veritable goldmine of information. Unfortunately, it's not organized in a way that allows lawyers and clients to easily track issues the court has accepted for decision. We were the first site to regularly provide comprehensive and up to date information on all civil cases.  The Appellate Strategist has organized the pending issues according to subject matter. We will update periodically, as new reviews are granted, or opinions issue on old ones. Hope it's useful. (Updated through 5/8/13)

• Employment – Compensation & Benefits
• Employment – Other
• Insurance
• Torts & Products
• ADR
• Attorney-Related
• Damages
• B & P 17200/Class Actions/Commercial
• Appeals & Writs
• Civil Procedure/Evidence/Discovery
• Environmental
• Civil Rights
• Taxation and Assessments
• Other

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Terry McCann was an Oklahoma resident in the 1950s. He claimed he was exposed to asbestos from a Foster Wheeler generator at a refinery in Tulsa in 1957. After his alleged exposure, he moved to California in 1975. He was diagnosed with mesothelioma in 2005. He filed suit against Foster Wheeler in California state court.

Oklahoma has a 10-year statute of repose applicable to McCann's claim, which would bar McCann's lawsuit had he filed it in Oklahoma. However, McCann's suit was timely if measured by California's statute of limitations.

Foster Wheeler sought summary judgment, arguing that the timeliness of the action should be governed by Oklahoma law, rather than California law, and that under Oklahoma law McCann's cause of action against Foster Wheeler was barred by Oklahoma's statue of repose. The trial court agreed, finding that Oklahoma law governed the action, and McCann's claims were barred. The Court of Appeal reversed, concluding that McCann's residence in California at the time of his diagnosis trumped Oklahoma's interest in limiting liability embodied by its statute of repose.

The California Supreme Court disagreed: California's interest in affording a remedy to a current resident was insufficient to justify the choice of forum law over the law of another much more significantly involved jurisdiction.

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[UPDATED THROUGH SEPTEMBER 7, 2010]

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[UPDATED THROUGH MAY 8, 2012]

What Are a School District’s Obligations to a Charter School? After the Court of Appeal reversed the trial court, the Court granted review on the following issue: Did the Court of Appeal adopt an incorrect methodology for determining what facilities a school district is required to afford to a charter school in accordance with Education Code § 47614? California Charter Schools Assn. v. Los Angeles Unified School Dist., S208611 (opinion below B242601, formerly 212 Cal.App.4th 689). Review was granted on 4/17/13.

What Is the Statute of Limitations for an Action Challenging Conditions on a Development Project? After the Court of Appeal affirmed the summary judgment in a civil action, the Court granted review to address the following issue: Did the 90-day statute of limitations for challenging an agency decision under the Subdivision Map Act (Gov. Code. § 66499.37) or the 180-day statute of limitations for challenging the imposition of “any fees, dedications, reservations, or other exactions imposed on a development project” (Gov. Code, § 66020) apply to plaintiff’s action challenging the city’s imposition of conditions on a development project pursuant to a local ordinance? Sterling Park, L.P. v. City of Palo Alto, S204771 (opinion below, H036663, nonpublished), review granted 10/31/12.

Should CalPERS Service Credits Be Considered Separate or Community Property?
Did the Court of Appeal err in concluding that one spouse’s four years of CalPERS service credits, which were purchased partly with community funds and were based on his military service before the marriage, were not entirely his separate property and had to be allocated between community and separate property? In re Marriage of Green, S203561 (opinion below A129436, formerly 205 Cal.App.4th 1475, as modified 206 Cal.App.4th 548a), review granted on 8/29/12.

Does a Claim of Breach of Fiduciary Duty by the Trustee Trigger a No Contest Clause? Did any of the proposed challenges to the disposition of the trust at issue in this case trigger the trust’s no contest clause? Can a challenge that is founded on an alleged breach of fiduciary duty by a trustee violate a no contest clause? Donkin v. Donkin, S202210 (opinion below B228704, formerly 204 Cal.App.4th 622), review granted on 6/13/12.

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.  Update 12/20/12: Opinion issued. Voting 5-2, the Court reversed the Court of Appeal and held that the beneficiaries do have standing to sue for a prior breach of duty once the settlor has died and the trust becomes irrevocable. Justice Kennard, joined by Justice Werdegar, dissented.

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 Hearing Required Before Revoking a Charter School’s Charter?
In an action for writ of administrative mandate, after the Court of Appeal reversed the judgment setting aside the revocation, the Court granted review of the following issue: Does due process require an evidentiary hearing before a neutral hearing officer or decision-maker prior to the revocation of a charter school's charter by a county board of education? Today’s Fresh Start v. Los Angeles County Office of Education, S195852 (lead opinion below, B212966, formerly 197 Cal.App.4th 436). Review was granted on 10/26/11. Update 5/8/13: Oral argument scheduled for 5/30/13.

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.  Update 5/8/13: Oral argument scheduled for 5/29/13.

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[UPDATED THROUGH MAY 8, 2013]

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.

How Should the Value of a Mobilehome Park Be Assessed? After the Court of Appeal affirmed the judgment in action for writ of administrative mandate, the Court granted review on the following issue: Under Revenue and Taxation Code § 62.1, what is the proper method for determining the assessed value of the real property interest in a mobilehome park after a transfer of a membership interest in the nonprofit corporation that owns the park? Holland v. Assessment Appeals Bd. No. 1, S205876 (opinion below B229656, and opinon on rehearing, formerly 208 Cal.App.4th 1412). Review was granted 12/12/12. The petition for review is here.

To What Degree Are Local Ordinances Controlling Tax Clams Limited by the Government Code? Can a local ordinance preclude the filing of a class claim for a tax refund, or are the provisions of the Government Claims Act excepting from its reach claims brought under a “statute prescribing procedures for the refund . . . of any tax” (Gov. Code, § 905, subd. (a)) inapplicable to local ordinances? McWilliams v. City of Long Beach, S202037, (opinion below B200831, nonpublished opinion). Review granted on 7/11/12.  Update 2/6/13: Oral argument scheduled for 3/5/13. Update 3/5/13: Case argued and submitted. The briefs are here.  Update 4/25/13: Opinion issued. The Court unanimously affirmed the Court of Appeal, holding that a local ordinance cannot bar a class action seeking a tax refund and that the Legislature has determined that the Government Claims Act controls whether such an action is permitted, which, in this case, it is.

Was Property Tax Rule 474 Properly Adopted? This case presents the following issues: (1) Was the economic impact statement prepared by the State Board of Equalization prior to adopting Property Tax Rule 474 (Cal. Code Regs., tit. 18, § 474) adequate under the standards prescribed by Government Code §11346.5? (2) Is Property Tax Rule 474 inconsistent with Revenue and Taxation Code §51(d), and thus invalid pursuant to Government Code §11342.2? Western States Petroleum Assn. v. Board of Equalization, S200475 (opinion below B225932, formerly 202 Cal.App.4th 1092). Review granted on 5/16/12.

How Are Emission Reduction Credits Affected by Limitation  s 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.  Update 5/8/13: Oral argument scheduled for 5/29/13.

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.  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.



 

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[UPDATED THROUGH MAY 8, 2013]

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.

Should a Sexually Violent Predator Act Commitment Petition be Dismissed After The Assessment Protocol Was Found To Be an Improper Regulation?  Was petitioner entitled to dismissal of a petition for commitment under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) when the evaluations originally supporting the filing of the petition were conducted under an assessment protocol that was later found to constitute an invalid regulation and the results of reevaluation under a properly-adopted assessment protocol would have precluded the initial filing of the petition under Welfare and Institutions Code § 6601? The Supreme Court has accepted review in three cases addressing this issue.

Boysel v. Superior Court, S202324 (opinion below G045202, formerly 204 Cal.App.4th 854), review granted 6/13/12.

Reilly v. Superior Court, S202280 (opinion below G045118, 204 Cal.App.4th 829), review granted 6/13/12.

Wright v. Superior Court, S202320 (opinion blow G045203, formerly 4 Cal.App.4th 879), review granted 6/13/12. 

Update 6/20/12: The Court defers briefing in Boysel and Wright pending the resolution in Reilly.  Update 9/12/12: Review granted in Macy v. Superior Court, S204255 (opinion below H037138, formerly 206 Cal.App.4th 1393, as modified 207 Cal.App.4th 395a). Briefing is deferred pending a decision in Reilly.  Update 5/8/13: Oral argument scheduled for 5/30/13.

Should An Undocumented Immigrant, Otherwise Qualified, Be Admitted to the State Bar? This case includes the following issues: (1) Does 8 U.S.C. §1621(c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission? (2) Is there any state legislation that provides — as specifically authorized by 8 U.S.C. §1621(d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation? (3) Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney? (4) If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law? (5) What, if any, other public policy concerns arise with a grant of this application? In re Garcia on Admission, S202512. This is an original proceeding.

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.

Update 5/16/12: Review granted in City of Lake Forest v. Lake Forest Wellness Center and Collective, S201372 (opinion below, G043817, G043867, nonpublished opinion); and City of Lake Forest v. Evergreen Holistic Collective, S201454 (opinion below G043909; 203 Cal.App.4th 1413, as modified 204 Cal.App.4th 704a). Briefing in both matters is deferred pending a decision in City of Riverside.  Update 8/22/12: Review in Pack v. Superior Court, S197169, is dismissed. The ordinance at issue has been repealed, making the issue moot, and the petitioner has abandoned the federal preemption arguments in favor of issues not previously litigated.   Update 9/19/12: Review granted in County of Los Angeles v. Alternative Medicinal Cannabis Collective, S204663 (opinion below B233419, formerly 207 Cal.App.4th 601) and Caregivers, LLC v. City of Los Angeles, S204684 (opinion below B230436, formerly 207 Cal.App.4th 703), with briefing in each deferred pending resolution of City of Riverside.  Update 12/12/12: Review granted in City of Temucula v. Cooperative Patients Services, Inc., S206085 (opinion below E053310, nonpublished opinion), with briefing deferred pending resolution of City of Riverside.  Update 1/8/13: Oral argument scheduled for 2/5/13.  The briefs are here. Update 2/5/13: Case argued and submitted.  Update 2/27/13: Further proceedings in People v. G3 Holistic, Inc., S198395 (see above) are deferred pending decision in City of Riverside.  Update 5/6/13: Opinion issued. The Court unanimously held that state laws which remove certain state law obstacles permitting medical marijuana use do not preempt local ordinances which declare marijuana dispensaries a nuisance and ban them.

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.  Update 4/4/13: Oral argument scheduled for 5/7/13.  Update 5/7/13: Cause argued and submitted. The briefs are here.

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.

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.  Update 4/4/13: Oral argument scheduled for 5/8/13.  Update 5/8/13: Cause argued and submitted. The briefs are here.

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[UPDATED THROUGH FEBRUARY 27, 2013]

What Are the Procedures for a Petition to Delist a Species Under the California Endangered Species Act? The Court limited review to the following issues: (1) Under the California Endangered Species Act, Fish and Game Code § 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error? (2) If so, does the petition at issue here contain sufficient information to warrant the Commission's further consideration? Central Coast Forest Assn. v. Fish & Game Com., S208181 (opinion below C060569, formerly 211 Cal.App.4th 1433). The Court granted review on 2/27/13.

Does a City Have to Comply with CEQA When Implementing a Voter-Sponsored Initiative Adopted Without Election? After the Court of Appeal granted a petition for peremptory writ of mandate, creating a split in authority, the Court granted review on the following issues: (1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter-sponsored initiative pursuant to Elections Code § 9214(a)? (2) Is the adoption of an ordinance enacting a voter-sponsored initiative under Elections Code § 9214(a), a “ministerial project” exempt from CEQA pursuant to Public Resources Code § 21080(b)(1)? Tuolumne Jobs & Small Business Alliance v. Superior Court, S207173 (opinion below F063849, formerly 210 Cal.App.4th 1006). Review was granted 2/13/13.

Was a Proposed Project Properly Exempted from the California Environmental Quality Act? Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, §§ 15303(a) and 15332, and that the “Significant Effects Exception” set forth in § 15300.2(c), of the regulations did not operate to remove the project from the scope of those categorical exemptions? Berkeley Hillside Preservation v. City of Berkeley, S201116 (opinion below A131254, formerly 203 Cal.App.4th 656, as modified). Review was granted 5/23/12.

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.  Update 10/17/12: Review is granted in City of Hayward v. Trustees of California State University, S203939 (opinion below A131412 (lead case), as modified, formerly 207 Cal.App.4th 446), with briefing deferred pending the resolution of City of San Diego.

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[UPDATED THROUGH MAY 6, 2013]

Does a Second Settlement Offer Under CCP 998 Extinguish the Effect of the First Offer? When a plaintiff makes two reasonable settlement offers under Code of Civil Procedure §998, both of which expire by operation of law, does the second offer extinguish the first such that the later offer is the operative one for purposes of the cost-shifting provisions of § 998 (d)? Martinez v. Brownco Construction Co., Inc., S200944 (opinion below B226665, formerly 203 Cal.App.4th 507) review granted 5/9/12.

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.

Update 5/16/12: Review granted in City of Lake Forest v. Lake Forest Wellness Center and Collective, S201372 (opinion below, G043817, G043867, nonpublished opinion); and City of Lake Forest v. Evergreen Holistic Collective, S201454 (opinion below G043909; 203 Cal.App.4th 1413, as modified 204 Cal.App.4th 704a). Briefing in both matters is deferred pending a decision in City of Riverside.  Update 8/22/12: Review in Pack v. Superior Court, S197169, is dismissed. The ordinance at issue has been repealed, making the issue moot, and the petitioner has abandoned the federal preemption arguments in favor of issues not previously litigated.  Update 9/19/12: Review granted in County of Los Angeles v. Alternative Medicinal Cannabis Collective, S204663 (opinion below B233419, formerly 207 Cal.App.4th 601) and Caregivers, LLC v. City of Los Angeles, S204684 (opinion below B230436, formerly 207 Cal.App.4th 703, as modified), with briefing in each deferred pending resolution of City of Riverside. Update 12/12/12: Review granted in City of Temucula v. Cooperative Patients Services, Inc., S206085 (opinion below E053310, nonpublished opinion), with briefing deferred pending resolution of City of Riverside.  Update 1/8/13: Oral argument scheduled for 2/5/13.  The briefs are here. Update 2/5/13: Case argued and submitted. Update 2/27/13: Further proceedings in People v. G3 Holistic, Inc., S198395 (see above) are deferred pending decision in City of Riverside.  Update 5/6/13: Opinion issued.  The Court unanimously held that state laws which remove certain state law obstacles so as to permit medical marijuana use do not preempt local ordinances which declare marijuana dispensaries a nuisance and ban them.

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[UPDATED THROUGH APRIL 4, 2013]

Is the Judgment Appealable In Light of the Party’s Stipulation to Dismiss?
Was the judgment in this case, which dismissed most of the causes of action with prejudice and the remainder, pursuant to the parties’ stipulation, without prejudice and with a waiver of the applicable statute of limitations, an appealable judgment? Kurwa v. Kislinger, S201619 (opinion below B228078, formerly 204 Cal.App.4th 21), review granted 6/20/12. 

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[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.

 

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[UPDATED THROUGH JANUARY 16, 2013]

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.

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[UPDATED THROUGH JANUARY 17, 2013]

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.

Should An Undocumented Immigrant, Otherwise Qualified, Be Admitted to the State Bar? This case includes the following issues: (1) Does 8 U.S.C. §1621(c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission? (2) Is there any state legislation that provides — as specifically authorized by 8 U.S.C. §1621(d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation? (3) Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney? (4) If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law? (5) What, if any, other public policy concerns arise with a grant of this application? In re Garcia on Admission, S202512. This is an original proceeding.

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.

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[UPDATED THROUGH APRIL 3, 2013]

Was Vacating the Arbitration Award Consistent With Limited Judicial Review? After the Court of Appeal reversed a decision to vacate an arbitration award, the Court granted review on the following issues: (1) Is an employer’s honest belief that an employee was violating company policy or abusing medical leave a complete defense to the employee’s claim that the employer violated the Moore-Brown-Roberti Family Rights Act (Gov. Code §§ 12945.1, 12945.2)? (2) Was the decision below to vacate the arbitration award in the employer’s favor consistent with the limited judicial review of arbitration awards? Richey v. Autonation, Inc., S207536 (opinion below B234711, formerly 210 Cal.App.4th 1516, as modified 211 Cal.App.4th 701b). Review was granted on 2/13/13.

Did U.S. Supreme Court overrule Provisions of California Labor Law?
In reviewing an order compelling arbitration and dismissing class claims, the court granted review on the following issues: (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court’s decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration? Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (opinion below, B235158, formerly 206 Cal.App.4th 949), review granted on 9/19/12. Update 10/29/12: review granted in Caron v. Mercedes-Benz Financial Services USA LLC, S205263 (opinion below, G044550, formerly 208 Cal.App.4th 7), with briefing deferred pending resolution of Iskanian.  Update 12/12/12: Review granted in Reyes v. Liberman Broadcsting, Inc., S205907 (opinion below B235211, formerly 208 Cal.App.4th 1537), with briefing deferred pending resolution of Iskanian.  Update 2/13/13: Review granted in Franco v. Arakelian Enterprises, Inc., S207760 (B232583, formerly 211 Cal.App.4th 314, as modified). Briefing was deferred pending a decision in Iskanian.  Update 4/10/13: Review granted in Flores v. West Covina Auto Group, LLC, S208716 (opinion below B238265, formerly 212 Cal.App.4th 895.) Briefing was deferred pending a decision in Iskanian.

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.  Update: 3/20/13: Review granted in Baltazer v. Forever 21, Inc., S208345 (opinion below B237173, formerly 212 Cal.App.4th 221.) Briefing is deferred pending a decision in Wisdom.

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.

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.  Update 3/7/13: Oral argument scheduled for 4/3/13.  Update 4/3/13: Case argued and submitted. The briefs are here.

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.  Update 10/31/12: The court requested the parties to file supplemental briefs addressing the following question: Do the memorandums of understanding at issue here, including but not limited to their management rights clauses (article 1.9), render the decision whether to impose employee furloughs inarbitrable? Update 3/7/13: Oral argument scheduled for 4/3/13.  Update 4/3/13: Case argued and submitted. The briefs are here.

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[UPDATED THROUGH MAY 8, 2013]

Do Caregivers Assume the Risk of Injuries Inflicted by Alzheimer’s Patients?  After the Court of Appeal affirmed summary judgment, the Court granted review on the following issue: Did the doctrine of primary assumption of the risk bar the complaint for damages brought by an in-home caregiver against an Alzheimer’s patient and her husband for injuries the caregiver received when the patient lunged at her? Gregory v. Cott, S209125 (opinion below B237645, formerly 213 Cal.App.4th 41). Review granted 4/10/13.

What Is the Liability of a Public Entity for the Negligence of a Third Party Which Causes an Accident on a Dangerous Condition? After the Court of Appeal affirmed summary judgment that no dangerous condition existed, the Court granted review and limited briefing to the following issue: May a government entity be held liable if a dangerous condition of public property existed and caused the injuries plaintiffs suffered in an accident, but did not cause the third party conduct that led to the accident? Cordova v. City of Los Angeles, S208130 (opinion below B236195, formerly 212 Cal.App.4th 243). Review granted 3/20/13.

Can Homeowners Hold Architect Hired by Residential Developer for Negligence?
After the Court of Appeal reversed demurrers sustained by the trial court, the Court granted review on this issue: May an architect who provides services to a residential developer be liable to the eventual purchasers of the residences for negligence in the rendition of those services? Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP, S208173 (opinion below A134542, formerly 211 Cal.App.4th 1301). Review was granted 2/27/13.

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.

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.

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.  Update 5/8/13: Oral argument scheduled for 5/29/13.

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).  The petition for review was granted on 3/23/11.

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[UPDATED THROUGH MAY 4, 2013]

Can Complaint Allegations Constitute “Disparagement" To Trigger Coverage? After the Court of Appeal affirmed summary judgment for the insurer, the Court granted review on this issue: Did the allegations of the complaint constitute disparagement for purposes of insurance coverage or the duty to defend under the “advertising injury” provision of defendant’s insurance policy? Hartford Casualty Ins. Co. v. Swift Distribution, Inc., S207172 (opinion below B234234, formerly 210 Cal.App.4th 915) Review was granted on 2/13/13.

Is the Henkel Corp. Opinion Inconsistent With Ins. Code § 520? After the Court of Appeal denied a petition for peremptory writ of mandate, the Court granted review on the following issue: Are the limitations on assignment of third party liability insurance policy benefits recognized in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 inconsistent with the provisions of Insurance Code § 520? Fluor Corp. v. Superior Court, S205889 (opinion below, G045579, formerly 208 Cal.App.4th 1506). Review was granted 12/12/12.

Did an Added Form Provided With The Policy Become Part of the Policy? After the Court of Appeal reversed the judgment in a civil action, the Court granted review on the following issues: (1) Was a form, which was included in the envelope containing policy documents sent to the insured and which stated that the insured was covered for any vehicle he drove, part of the insurance policy? (2) If so, did that form create an ambiguity in coverage that should be construed against the insurer? American States Ins. Co. v. Ramirez, S205073 (opinion below, E052849, nonpublished opinion), review granted 10/24/12.

Can Misconduct Disqualify a Discharged Employee From Unemployment Benefits?
Did the trial court properly find that employee misconduct within the meaning of Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671 disqualified a discharged employee from receiving unemployment insurance benefits? Paratransit, Inc. v. Unemployment Ins. Appeals Bd., S204221 (opinion below, C063863, formerly 206 Cal.App.4th 1319), review granted on 9/26/12.

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.

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 is scheduled for 5/8/13.  Update 5/8/13: Cause argued and submitted. The briefs are here.

 

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[UPDATED THROUGH APRIL 17, 2013]

Is the Employer’s Honest Belief That the Employee Was Violating Medical Leave Policy a Defense Under the Family Rights Act? After the Court of Appeal reversed a decision to vacate an arbitration award, the Court granted review on the following issues: (1) Is an employer’s honest belief that an employee was violating company policy or abusing medical leave a complete defense to the employee’s claim that the employer violated the Moore-Brown-Roberti Family Rights Act (Gov. Code §§ 12945.1, 12945.2)? (2) Was the decision below to vacate the arbitration award in the employer’s favor consistent with the limited judicial review of arbitration awards? Richey v. Autonation, Inc., S207536 (opinion below B234711, formerly 210 Cal.App.4th 1516, as modified 211 Cal.App.4th 701b). Review was granted on 2/13/13.

Is a Judgment Through Mandamus Review a Prerequisite for a Whistleblower Action by a Doctor Whose Privileges Were Terminated? After the Court of Appeal affirmed in part and denied in part an order denying a special motion to strike in a civil action, the Court granted review on the following issue: Must a physician obtain a judgment through mandamus review setting aside a hospital’s decision to terminate the physician’s privileges prior to pursuing a whistleblower retaliation action underHealth and Safety Code § 1278.5? Fahlen v. Sutter Central Valley Hospitals, S205568 (opinion below F063023, formerly 208 Cal.App.4th 557).  Review was granted 11/14/12.

Is a Medical Report Obtained Outside of a Medical Provider Network Admissible in a Workers’ Compensation Proceeding? After the Court of Appeal annulled two en banc decisions by the Workers’ Compensation Appeals Board, the Court granted review on this issue: Does Labor Code § 4616.6 exclude from evidence reports of a treating physician obtained by an applicant outside of his or her employer’s Medical Provider Network? Valdez v. Workers’ Comp. Appeals Bd., S204387 (opinion below B237147, formerly 207 Cal.App.4th 1), review granted on 10/10/12.

Did the U.S. Supreme Court Overrule Provisions of California Labor Law?
In reviewing an order compelling arbitration and dismissing class claims, the court granted review on the following issues: (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court’s decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration? Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (opinion below, B235158, formerly 206 Cal.App.4th 949), review granted on 9/19/12. Update 10/29/12: Review granted in Caron v. Mercedes-Benz Financial Services USA LLC, S205263 (opinion below, G044550, formerly 208 Cal.App.4th 7), with briefing deferred pending resolution of Iskanian.  Update 12/12/12: Review granted in Reyes v. Liberman Broadcsting, Inc., S205907 (opinion below B235211, formerly 208 Cal.App.4th 1537), with briefing deferred pending resolution of Iskanian.  Update 2/13/13: Review granted in Franco v. Arakelian Enterprises, Inc., S207760 (B232583, formerly 211 Cal.App.4th 314, as modified). Briefing was deferred pending a decision in Iskanian.  Update 4/10/13: Review granted in Flores v. West Covina Auto Group, LLC, S208716 (opinion below B238265, formerly 212 Cal.App.4th 895.) Briefing was deferred pending a decision in Iskanian.

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).  The petition for review is here. Review was granted 3/28/12.  Update: 3/20/13: Review granted in Baltazer v. Forever 21, Inc., S208345 (opinion below B237173, formerly 212 Cal.App.4th 221.) Briefing is deferred pending a decision in Wisdom.

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). The petition was granted 11/16/11.  Update 2/17/13: The Court requested the parties to submit supplemental briefs addressing the following question: Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of “state labor and employment laws” (Lab. Code, § 1171.5; Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000), an award of compensatory remedies, including back pay? (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137.)

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 was 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 was granted 7/13/11.  Update 10/31/12: The court requested the parties to file supplemental briefs addressing the following question: Do the memorandums of understanding at issue here, including but not limited to their management rights clauses (article 1.9), render the decision whether to impose employee furloughs inarbitrable?  Update 3/7/13: Oral argument scheduled for 4/3/13.  Update 4/3/13: Case argued and submitted. The briefs are here.

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). The petition for review is here. Review was granted 6/15/11. Update 2/6/13: Oral argument scheduled for 3/5/13.  Update 3/5/13: Case argued and submitted. The briefs are here.

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[UPDATED THROUGH APRIL 3, 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.

Can Commission Payments be Reallocated Under California Law? 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: “May an employer, consistent with California’s compensation requirements, allocate an employee’s commission payments to the pay periods for which they were earned?” Peabody v. Time Warner Cable, Inc., S204804 (9th Cir. Order is here, 689 F.3d 1134). Certification was granted on 10/17/12.

Can Misconduct Disqualify a Discharged Employee From Unemployment Benefits?
Did the trial court properly find that employee misconduct within the meaning of Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671 disqualified a discharged employee from receiving unemployment insurance benefits? Paratransit, Inc. v. Unemployment Ins. Appeals Bd., S204221 (opinion below, C063863, formerly 206 Cal.App.4th 1319), review granted on 9/26/12.

Class Certification of Wage and Hour Classification Claims. This case presents issues concerning the certification of class actions in wage and hour misclassification litigation and the use of representative testimony and statistical evidence at trial of such a class action. Duran v. U.S. Bank National Assn., S200923 (opinion below A125557, formerly 203 Cal.App.4th 212, as modified 203 Cal.App.4th 1042b). Review was granted 5/16/12. 

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).  Review was granted 9/9/09.  The petition for review is here. 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.  Update 3/7/13: Oral argument scheduled for 4/3/13. Update 4/3/13: Case argued and submitted. The briefs are here.
 

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