Testing Liability: The Legacy of Brown v. Superior Court in Products Liability

Now over 25 years old, Brown v. Superior Court established a significant precedent regarding medical products liability, and products liability generally. In addition to its specific holdings, Brown has been credited with articulating the three separate theories of products liability—manufacturing defect, design defect, and failure to warn—at a time when these were often lumped into a single claim of strict products liability. The court in Brown unanimously held that:

1)  Strict products liability for defect design does not apply to prescription drugs,

2)  Strict liability for failure to warn in prescription drug cases is limited to information that was reasonably scientifically known or knowable at the time of distribution, and

3)  The market share theory applied in Sindell v. Abbott Laboratories does not apply to breach of warranty or fraud claims and a defendant is only liable for an apportionment equal to its then market share of the subject product.

In the time since Brown, its blanket restriction on design defect claims, which remains a minority rule, has been expanded in California to all implanted medical devices, such as IUDs, breast implants and artificial joints. Attempts to expand it further to selected non-prescription medical products have so far been unsuccessful, although on a case-by-case basis. Conversely, its ruling on warnings follows the national majority rule and has been applied to products claims generally. The market share theory has not seen wide application, presumably in part because of the restrictions imposed by Brown. For more details regarding the history and legacy of Brown, please see my article in the September 2014 issue of Los Angeles Lawyer, which can be found here.

Copyright 2014 Los Angeles Lawyer. Reprinted with permission.

Governor Brown Taps Cuellar to Fill Latest Vacancy on California Supreme Court


Governor Jerry Brown has nominated Stanford law professor Mariano-Florentino Cuellar to fill the most recent vacancy on the California Supreme Court created by the impending retirement of Justice Marvin Baxter. Cuellar is “a renowned scholar who has served two presidents and made significant contributions to both political science and law,” Brown said.  “His vast knowledge and even temperament will – without question – add further luster to our highest court.”

Cuellar was born in Matamoros, Mexico. As a child he crossed the border each day to attend Catholic school in Brownsville, Texas, until he and his family relocated to California’s Imperial Valley when he was 14. 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 his Ph.D. in political science 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. He is currently the Stanley Morrison Professor of Law at Stanford Law School, as well as the Director of Stanford’s Freeman Spogli Institute for International Studies, where he is also a Senior Fellow. 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, focusing 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, leading 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. 

From 2011 to 2013, Cuellar co-chaired the National Equity and Excellence Commission, instituted by Congress to seek ways to improve the performance of public schools. He is currently an Obama appointee to the Council of the Administrative Conference of the United States, which monitors the fairness and efficiency of federal regulatory programs. He is also a board member of the American Constitution Society, often described as a progressive counterpart to the conservative Federalist Society, and the Constitution Project, a non-profit think tank that builds bipartisan consensus on constitutional and legal issues.

Beyond Stanford, Professor Cuellar is associated with the Council on Foreign Relations, the American Bar Association, 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, glimpses of his prospective judicial outlook must be gleaned from his writings and his appearances in the media. A brief survey of his publications reflects an interest and expertise in national and international matters:

  • Governing Security: The Hidden Origins of American Security Agencies, Stanford: Stanford University Press, 2013.
  • “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953, 76 U. Chi. L. Rev. 587 (2009) (arguing that American public law is driven by 1) how the executive branch defines national security and 2) how politicians compete to control public organizations that implement the law, and analyzing the intersection of those dynamics by investigation the history of the U.S. Federal Security Agency and drawing perspectives from separation of powers, organization theory, and the study of American political development.)
  • 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.”)
  • 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 reaching 3 conclusions: “(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.”)
  • 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.”)

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. Cuellar observed earlier this year that such reform “is more likely now than it has been in decades.” 

Cuellar’s own experience with immigration shapes his views on the subject now. He told The Stanford Daily last year that “when you grow up on the border, you realize that a legal demarcation has such a huge effect in distinguishing one country from another, for example, and the whole structure of law shapes who’s a citizen and therefore who counts in one society for another.” He recounted to Stanford Magazine being stopped by a law enforcement agent while jogging along the border in Calexico when he was 16, and being asked to provide his papers. He described the encounter as reflecting the “duality” of law enforcement, whose role is to protect, yet who can also spark fear in the community it polices. He acknowledges, though, that moving to the U.S. with a green card gave him “a clear sense that even the very imperfect country I was joining was an extraordinary place.”

Cuellar has also spoken out about “the problem of staggering education inequity.” “Our nation’s stated commitments to academic excellence,” he has written, “are often eloquent but, without more, an insufficient response to challenges at home and globally.” He has also criticized leaders who “decry but tolerate disparities in student outcomes that are not only unfair, but socially and economically dangerous.” 

Pervading his opinions on these and other topics, however, is a fundamental realism. He describes the core of all his research efforts as “trying to look at how societies and legal systems and organizations take on problems that are so difficult to solve that nobody can really expect that they’re likely to be completely solved – ever.” His conclusion: “The world is as messy and complicated as it is beautiful and full of possibility.” As a result, says Hoover Institution Senior Fellow Abraham Sofaer, Cuellar is “not an ideologue,” but is “interested in … practical solutions.” According to Sofaer, a legal adviser to the U.S. Department of State during Ronald Reagan’s and George H.W. Bush’s presidencies, he and Cuellar “could serve in the same administration.”

Justice Marvin Baxter, whose position Cuellar has been nominated to fill, is widely regarded as the court’s most conservative justice. On the other hand, Cuellar was described by Hank Greely, another law professor at Stanford, as “certainly to the left of the middle of the American political spectrum.” Greely qualified his description, however, by noting that Cuellar is “fundamentally a pragmatist.” Thus, while Cuellar’s nomination will likely pull the overall outlook of the Court leftward, its new ideological center may be more moderate than Cuellar’s bona fides might indicate. Moreover, Governor Brown’s second consecutive appointment to the state’s highest bench of an academic with no judicial experience (former U.C. Berkley law professor Goodwin Liu was the first) suggests the Court’s new makeup will include a willingness to approach issues from a fresh perspective and, at any rate, an intellectual bent.

Before Cuellar can take his place on the state’s highest bench, his nomination must be approved by California’s Commission on Judicial Appointments, and by the electorate on the upcoming November ballot.

Image courtesy of Flickr by Lauren Mitchell.

Waiting for Iskanian, Part 6 - California Supreme Court to Hand Down Its Opinion This Morning

The California Supreme Court has announced that it will hand down its much-anticipated decision in Iskanian v. CLS Transportation Los Angeles, LLC this morning. According to the Court’s Pending Issues Summary, Iskanian presents 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?

The opinion will be posted by the Court at 10:00 A.M. Pacific time, 12:00 P.M. Central. For our pre-argument previews of Iskanian, see here, here, here, here and here.

We’ll be back later today with our first impressions of the decision.

Image courtesy of Flickr by Luz Adriana Villa.

California Supreme Court to Clarify What's In, What's Out in the Five-Years-to-Trial Rule

According to Section 583.310 of the California Code of Civil Procedure, "An action shall be brought to trial within five years after the action is commenced against the defendant."

On the surface, it seems like a simple rule. But as with so many things, the devil is in the details. During last week's conference, the California Supreme Court agreed to further clarify how to calculate the five-year period, granting a petition for review in Gaines v. Fidelity National Title Insurance Company.

According to Section 583.340, there are only three situations in which the five-year clock pauses – during times that (1) the jurisdiction of the court to try the action was suspended; (2) prosecution or trial of the action was stayed or enjoined; or (3) bringing the action to trial, for any other reason, was impossible, impracticable, or futile.  Once the clock runs out, dismissal is mandatory. Gaines involves the application of the second and third exclusions.

Gaines started in 2006 when two senior citizen homeowners fell behind on their mortgage. An individual defendant contacted the homeowners and identified herself as an employee of the loan holder. She explained that she had given a copy of the homeowners' refinance application to her fiance, who helped homeowners find refinancing loans. Within a few months, after a complicated series of transactions, the fiance and his business partners wound up owning the homeowners' home - which they allegedly bought for $300,000 less than it was worth - and the homeowners held only a month-to-month lease with no option to buy. Around this time, the husband homeowner died.

The surviving wife filed suit in November 2006 against the original loan holder, the loan holder's employee, her fiance and his business partners, and various others. In January 2008, the plaintiff filed a fourth amended complaint adding additional defendants. In April 2008, the plaintiff's counsel successfully obtained an order staying the action for 120 days, excepting only outstanding discovery, and directing the parties to participate in good faith in a mediation. The stay was terminated in November 2008 after the mediation failed to produce a settlement.

The new presiding judge set an August 2009 trial date. Around that time, one of the newly added defendants indicated that it didn't have title to the property after all, and the trial date was vacated. In a declaration filed in November 2009, counsel for that defendant indicated that a bankrupt entity in New York owned the relevant loan, and his client had no interest in the property or the loan.

The wife died in November 2009. Leave was granted two months later to substitute her son as the successor in interest and plaintiff, and the court set yet another trial date in 2010. At a mid-2010 status conference, with the real loan holder still in bankruptcy, the plaintiff's counsel suggested a further continuance to allow time to bifurcate proceedings, carving out the claim against the bankrupt entity and proceeding against the other defendants. Three months later at another status conference, plaintiff's counsel said they were ready to proceed to trial, but one of the defense counsel pointed out that plaintiff had made no attempt to proceed against the bankrupt entity. By February 2011, plaintiff's counsel indicated he had authorization to retain New York counsel to seek relief from the bankruptcy stay as to the missing party. In October 2011, the bankruptcy court entered an order lifting the bankruptcy stay for the missing party as to the plaintiff's claims. Plaintiff amended her complaint to name the bankrupt entity in mid-November 2011, and trial was finally set for August 2012.

In May 2012, one group of defendants moved to dismiss the action under Section 583.310 on the grounds that it had been pending five years without being brought to trial. The trial court granted the motion and - concluding that violation of the five-year statute was jurisdictional - dismissed the remaining defendants as well. A divided Court of Appeal (Second District, Division Eight) affirmed in part and reversed in part.

The trial court declined to exclude the seven-month 2008 stay from the five-year calculation. The Court of Appeal agreed. The Supreme Court had held in Bruns v. E-Commerce Exchange, Inc. that a partial stay was not enough to pause the five-year clock, the court pointed out. Since the 2008 stay in Gaines exempted already-outstanding discovery, it was a partial stay, and Bruns governed. Nor were the defendants estopped from arguing that the 2008 stay counted in the calculation just because they had agreed to it.

The Court of Appeal further held that the trial court was within its discretion to find that it was not impossible, impractical or futile to bring the case to trial during the 2008 partial stay.  The plaintiff had failed to establish a causal connection between the stay and missing the five-year deadline, the court found. Moreover, even if the causal connection existed, the court agreed with the trial court's finding that plaintiff had not been reasonably diligent at all times in prosecuting the case. Nor was the fact that certain defendants hadn't formally joined the motion to dismiss a barrier to dismissal, the Court held. As long as those defendants were named in the original complaint, they were entitled to dismissal, even on the court’s own motion.

The Court of Appeal reversed the dismissal only with respect to the bankrupt defendant. That defendant had been named for the first time in the Fourth Amended Complaint, the court pointed out. There's an additional wrinkle here for counsel to be aware of here, however. When a defendant is brought into the action by being identified as a previously sued Doe defendant, the five-year clock begins when the Doe defendant is sued, not when the defendant is finally identified.

Associate Justice Laurence D. Rubin dissented, writing that he would have reversed the trial court's judgment in its entirety. Justice Rubin's dissent is noteworthy to appellate practitioners for its initial section - a scholarly discussion of the abuse of discretion standard and its shortcomings as a guide for appellate decision-making.

We expect Gaines to be decided in eight to ten months.

Image courtesy of Flickr by Alan Cleaver.

One Step Forward, One Step Back: Court of Appeal Denies Arbitration in Imburgia

Fresh on the heels of signs during the Iskanian oral argument that the California Supreme Court might at least partially fall in line behind the rule of Concepcion (subscr. req.), we received a reminder that arbitration clauses continue to receive an uncertain reception in the Courts of Appeal. In Imburgia v. DirecTV, Inc., Division One of the Second Appellate District affirmed a trial court decision invalidating a consumer arbitration clause in its entirety. (See here for a quick sketch of the background law at the federal and California state level.)

The plaintiff in Imburgia filed a putative class action complaint alleging a laundry list of consumer claims: unjust enrichment, declaratory relief, false advertising, and violation of the Consumer Legal Remedies Act, the unfair competition law and Civil Code Section 1671(d). Plaintiff’s theory was that the defendant improperly charged early termination fees to its customers.

The parties litigated for two and a half years, but less than a month after Concepcion was handed down in 2011, the defendant petitioned to compel arbitration. The trial court denied the motion.

Two provisions of the defendant’s then-standard customer agreement were at issue. Section 9 provided that “any legal or equitable claim” relating to the Agreement or service would first be addressed informally, and then through “binding arbitration” under JAMS rules. The clause barred all class claims, both in litigation and arbitration:

Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity . . . If, however, the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire Section 9 is unenforceable.

Section 10 was called “Applicable Law”:

The interpretation and enforcement of this Agreement shall be governed by the rules and regulations of the Federal Communications Commission, other applicable federal laws, and the laws of the state and local area where Service is provided to you . . . Notwithstanding the foregoing, Section 9 shall be governed by the Federal Arbitration Act.

The plaintiffs’ argument on appeal went like this. Class action waivers are unenforceable under the Consumer Legal Remedies Act. The final sentence of Section 9 referring to “the law of your state” means “the law of your state disregarding any impact of the FAA.” Since California law bars class waivers in CLRA cases, “this agreement to dispense with class arbitration procedures [is] unenforceable,” and the entire arbitration clause falls.

The Court of Appeal agreed. The court based this conclusion on two general principles. First, the final sentence of Section 9 is a specific exception to the general invocation of the FAA in Section 10, and a specific contract clause always governs a more general one. Second, the clause was ambiguous as written, and ambiguities must be resolved against the drafter – here, the defendant. In so holding, the Court of Appeal declined to follow directly contrary decisions from the federal district court hearing the parallel MDL action and the Ninth Circuit.

The California Supreme Court should grant review in Imburgia and reverse. Defendants made two arguments before the Court of Appeal which seem to me to dispose of the plaintiff’s “imagine there’s no FAA” argument.

First, the plaintiffs’ arguments, adopted by the Court of Appeal, depend on the proposition that the last sentence of Section 9 and Section 10 conflict. But they don’t. The plaintiff argues that the CLRA bars class waivers. But that tells us nothing. Section 9 does not invoke California law in a vacuum. The clause asks whether “the law of your state would find this agreement . . . unenforceable.” Well, California law couldn't find the defendant's subscriber agreement unenforceable.  The agreement deals with interstate commerce and is therefore subject to the FAA.  If the Supremacy Clause means anything, it's that Concepcion is the law of every jurisdiction, including California.  The class waiver is perfectly valid under Concepcion and Concepcion preempts the CLRA.

Second, Section 10 provides that “Section 9 shall be governed by the Federal Arbitration Act.” As the federal MDL court held, the plaintiffs’ interpretation of Section 9 renders that clause completely meaningless, in violation of the most fundamental principles of contract construction. The Court of Appeal disagreed, describing Section 9 as a “narrow and specific exception to the general provision” of Section 10, which “[i]t does not render . . . meaningless,” but this seems conclusory. Before the Supreme Court, the plaintiffs are likely to have considerable difficulty explaining what practical impact the FAA clause of Section 10 can ever have if their construction of the contract is correct.

The likely petition for review in Imburgia adds another element of uncertainty to the Court’s deliberations over what to do about Iskanian. The Appellate Strategist will be following both cases closely.

Image courtesy of Flickr by Yale Law Library.

California Supreme Court Agrees to Decide Temp Disability Benefits for Police Officers

In the only civil review grant from last week’s conference, the California Supreme Court agreed to review the Third District’s decision in Larkin v. Workers’ Compensation Appeals Board. Larkin involves an issue of what temporary disability payments might be available to full-time, salaried peace officers.

The petitioner filed a claim for temporary disability payments after he sustained various injuries in the course of his employment as a police officer for the City of Marysville. The workers’ compensation judge denied the claim, the Workers Compensation Appeals Board affirmed, and the Court of Appeal affirmed the Board.

The claim turned on the meaning of Labor Code Section 4458.2, which provides:

If an active peace officer of any department as described in Section 3362 suffers injury or death while in the performance of his or her duties as a peace officer . . . then, irrespective of his or her remuneration from this or other employment or from both, his or her average weekly earnings for the purposes of determining temporary disability indemnity and permanent disability indemnity shall be taken at the maximum fixed for each, respectively, in Section 4453 . . .

Section 3362 simply deemed police officers as “employees” of the relevant government: “Each male or female member registered as an active policeman or policewoman of any regularly organized police department . . . shall . . . be deemed an employee of such county, city, town or district for the purpose of this division and shall be entitled to receive compensation from such county, city, town or district in accordance with the provisions thereof.”

The petitioner argued that he was an active peace officer, so the statute authorized temporary disability benefits at the set rate for him. But that “would be an absurd result,” the Court of Appeal found.

The Court pointed out that Section 3362 appears in an Article of the Labor Code called “Employees.” The Code offers the broadest possible definition of “employee” – “every person in the service of an employer” – and carves out limited exceptions for volunteers and independent contractors. So it was undisputed that the petitioner was an “employee” of the City. There was no need for Section 3362 to separately say so.

The Sections in the immediate neighborhood of 3362 are concerned with deeming certain persons who would not ordinarily be considered employees to be such for purposes of entitlement to workers compensation benefits. Section 3361 addresses volunteer firefighters, Section 3364 volunteer members of a sheriff’s reserve, and Sections 3365, 3366 and 3367 those who voluntarily assist law enforcement and firefighters upon request. In each section, the affected individuals are deemed employees and awarded temporary disability at the maximum rate. The idea, the Court wrote, was to encourage public service by volunteers. Without these provisions, one injured in the voluntary service of a government entity might lose his or her income for a time and have no means of support, since workers’ comp from his or her regular employer wouldn’t be available.

If Section 3362 was intended to apply only to salaried officers, volunteer peace officers would have no recourse if injured while they were working. This would “punish them for their service,” the Court wrote, and “leave such volunteers in a markedly different position than volunteers of other public safety agencies. This cannot be what the Legislature intended.”

We expect Larkin to be decided in eight to ten months.

Image courtesy of Flickr by Nic Walker.

California Supreme Court Depublishes Decision on Finality from the Register of Actions

Depublication orders usually aren’t exactly the most earthshaking thing on the California Supreme Court’s weekly conference summaries. Nevertheless, I took particular notice of one on last week’s summary: Dattani v. Lee. Dattani is worthy of note for a couple of reasons. First, the Court took the unusual step of depublishing the Court of Appeal’s opinion on its own motion – nobody had filed a depub request. Second (and more importantly), Dattani underlines one of the most important lessons in all of appellate law (see the end of this post for the takeaway).

It’s not uncommon for those of us in the defense bar to find that a common legal theory serves as the foundation for many but not all of a plaintiff’s claims. If the trial court rejects that theory pre-trial, the plaintiff faces a dilemma: go to trial with what are often sideshow claims before getting appellate review, or seek an interlocutory appeal.

Every jurisdiction has various avenues to possible interlocutory review; in California, it’s usually through a petition for writ of mandate, while in Illinois, Rules 304, 306, 307 or 308 might serve, depending on the facts. But the thing is, in most cases, review is discretionary. The appellate court can simply refuse to hear the matter – and usually, that’s exactly what happens. Interlocutory orders that are reviewable as of right are rare.

To understand the significance of Dattani, it’s necessary to briefly revisit a major decision the Supreme Court handed down last year: Kurwa v. Kislinger. In Kurwa, the plaintiff sued for breach of fiduciary duty and assorted related claims. The parties traded claims and cross-claims for defamation.

Before trial, the court held that once the parties formed a corporation, they didn’t owe each other any fiduciary duties. That was pretty much that for the fiduciary duty count and all the related stuff. But there was nothing final about the ruling: the defamation counts were still viable.

So the parties worked out a deal. The plaintiff dismissed the fiduciary duty and related claims with prejudice. Both parties dismissed their defamation claims without prejudice and swapped waivers of the statute of limitations. Then off the plaintiff went to the Court of Appeal.

Ultimately, it didn’t work. The Supreme Court pointed out that given the statute of limitations waiver, the parties were apparently planning to go right back to court regardless of what happened on appeal, so the dismissals weren’t final and appealable.

Fast forward to Dattani.

Dattani arose from a four-count complaint. In 2012, the trial court granted the defendant summary adjudication on the first count. When the defendant appeared for trial in September 2012 on the remaining claims, the plaintiff’s attorney said he was dismissing those claims to pursue an appeal.

The request for dismissal was filed on the proper Judicial Council form. The court’s register of actions for that day stated that “a dismissal of all the other causes of action” had been filed and removed the matter from the master calendar. But the section of the Judicial Council form for the clerk to note whether dismissal had been entered as requested was never filled in.

Seven months later, on April 16, 2013, the trial court filed a take-nothing judgment prepared by the plaintiffs’ counsel stating that the “remaining causes of action” had been dismissed on September 10. On May 6 – less than thirty days later – the plaintiffs filed a notice of appeal.

The defendants moved to dismiss the appeal, arguing that the plaintiff’s mere request for dismissal of all remaining claims was the equivalent of a final judgment as of the day it was filed – in September 2012, long before the notice of appeal was filed. The Court of Appeal agreed.

There’s a line of cases going back thirty years allowing plaintiffs or cross-plaintiffs to in essence manufacture finality after losing on a key point of law by voluntarily dismissing the remaining claims. The rationale is that even though voluntary dismissals aren’t generally appealable, in such cases it’s not really a voluntary act – it amounts to a request for entry of judgment on the adverse ruling of law.

The Court of Appeal concluded that Kurwa isn’t to the contrary. Sure, the Supreme Court refused to allow an appeal from a voluntary dismissal, but in the Dattani court’s view, finality hadn’t been destroyed in Kurwa by the voluntary dismissal itself – the problem was the mutual statute of limitations waivers.

Bottom line, the Dattani court held, even though no judgment was filed until seven months later, the mere filing of the notice of voluntary dismissal, coupled with the earlier loss on the pretrial order, amounted to a final and appealable judgment. Since that happened in September 2012 and the notice of appeal wasn’t filed until May 2013, the notice of appeal was untimely, and the appeal was dismissed for lack of jurisdiction.

Although the Supreme Court regularly reminds us that an order to depublish isn’t an expression of their opinion one way or the other about the Court of Appeal’s opinion, it seems clear that the Supreme Court didn’t want a published Dattani opinion knocking around in the Official Reports. Nevertheless, the takeaway seems clear. Consider the Dattani facts one more time. There was no judgment entered at the time the Court of Appeal says finality happened. The plaintiff had filed a notice of dismissal, but the section of the form reserved for the clerk to note that dismissal had actually occurred hadn’t been filled in. The only indication anywhere (apparently) that the court staff regarded the matter as concluded was the register of actions.

A timely notice of appeal is jurisdictional everyplace I’m aware of. In most jurisdictions, there’s no remedy for an untimely filing; even in places where one exists, it’s extremely limited.

So if you’re even in the same zip code as anything that seems remotely like the end of the line in a case, extraordinary caution is called for. Confirm everything, assume nothing, and check everywhere (remember that register of actions from Dattani). Finality – and the possible tolling of the time to appeal – is an intricate area of the law. Nevertheless, it’s a question counsel has to get right.

Image courtesy of Flickr by John Morgan.

The Future is Here - Is the Internet a Place?

The California Supreme Court has certified a question for review posed by the Ninth Circuit – Is the internet a “place of public accommodation” as described in the California Disabled Persons Act (“DPA”), Civil Code §§ 54, et seq.? The DPA provides at § 54.1(a)(1) that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and privileges of . . . places of public accommodation . . . and other places to which the general public is invited.” Finding no resolution in existing California law, the Ninth Circuit asked for guidance on the question of whether DPA’s reference to “places of public accommodation” includes web sites, which, at best, are “non-physical places.”

In Greater Los Angeles Agency on Deafness (GLAD) v. Cable News Network (CNN), GLAD filed a class action suit against CNN for failing to provide closed captioning with all of its online videos, and thereby limiting access to those materials by hearing impaired viewers. GLAD alleged violations of DPA and the California Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (“Unruh Act”) and sought declaratory and injunctive relief. CNN removed the matter to federal court and filed an unsuccessful motion to strike under California’s anti-SLAPP statute. The district court found that the provision of closed captioning did not raise a free speech issue for CNN and it did not address the merits. In a published opinion, the Ninth Circuit reversed, finding that forcing CNN to add closed captioning to its news content arose from its freedom of expression because it would necessarily change how CNN presented the news. The court then struck the Unruh Act claim, finding that GLAD had not shown it would probably satisfy the intentional discrimination requirement.

Turning to the DPA claim, the Ninth Circuit concluded that GLAD had demonstrated a probability of success regarding the constitutional and preemption defenses raised by CNN. However, to address the merits of the DPA claim, the court first needed to determine whether the DPA even applied to a “virtual location” on the internet. While the internet was certainly not considered when the DPA was originally passed in 1968, it is also true that, as presently used, internet websites often operate as “non-physical places,” such as stores, classrooms, gaming halls and public forums. Since lower California courts, state and federal, are divided on this issue, the Ninth Circuit certified the question for the California Supreme Court. The increasing importance of the internet for commerce and public discourse demonstrate the potential significance of this ruling, and allow a prediction of multiple amicus briefs.

Image courtesy of Flickr by LearnerWeb.

The Perils of Small Errors: California Supreme Court Publishes Lower Court's Foreclosure Opinion


In its second noteworthy action during Wednesday's conference, the California Supreme Court granted a request to publish an August 2013 opinion from the Appellate Division of the Santa Clara County Superior Court in The Bank of New York Mellon v. Preciado. Preciado carries noteworthy lessons about the perils of small errors in foreclosure cases.

Certain property in Alviso, California was owned and occupied until 2011 by the appellants. In the summer of 2011, the property was acquired by the respondent bank at a trustee's sale pursuant to foreclosure. The bank served a written notice to quit, and 90 days later, filed two unlawful detainer complaints against appellants.

The actions were tried, and judgment was entered for the bank, awarding possession, rent and damages. But when the sheriff tried to execute the writ, he discovered that the property was actually in Alviso; the complaints - and therefore the writ - said it was in San Jose. The bank went back to court seeking an ex parte order to amend the judgment, which the trial court granted. The appellants appealed.

On appeal, the appellants argued that they were never properly served with the notices to quit. C.C.P. Section 1162 provides three methods of service: (1) personal delivery; (2) either leaving a copy with a person of suitable age and discretion at home or business, or mailing to the residence if the tenant is absent from both the home and business; or (3) if the home or business can't be ascertained, or no person of suitable age and discretion can be found, then by posting conspicuously at the property, and mailing to the defendant's attention at the property. Strict compliance is required.

At trial, the resident denied ever receiving the notice to quit. The bank responded with the declaration of its registered process server, who said that "after due and diligent effort," he had posted a copy of the notices at the address, and mailed them to the owner's post office box address. The trial court accepted that showing and entered judgment.

Not so fast, the Appellate Division said. Although substituted service was fine without a showing of reasonable diligence, it does require showing that personal service was attempted, and neither the resident nor a person of suitable age or discretion could be found. There was no such showing in the process server's declaration. Since strict compliance was required, the judgment for possession had to be reversed.

But that wasn't the only problem. In order to perfect its title, the bank was required to show strict compliance with Civil Code Section 2924. That requires proof of all elements of a valid sale.

Under a deed of trust, power to sell the property rests in the trustee. Well, the Deed of Trust in Preciado identified one entity as the Trustee. The Trustee's Deed of Sale identified another entity entirely as "acting as Trustee." Since there was no evidence that one entity had substituted for the other as trustee, the sale was faulty and the judgment had to be reversed.

The lesson of Preciado seems clear: at least in foreclosure cases, any error could be fatal.


Image courtesy of Flickr by Jeff Turner.

The California Supreme Court Confirms the Power of Local Governments to Regulate Medical Marijuana

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.

California Supreme Court To Tackle Arbitration, Foreclosures and Peer Review in Upcoming Oral Arguments

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.

Don't Panic - The Fall of Pendergrass and Restoring the Full Fraud Exception to the Parol Evidence Rule May Not Be as Bad as You Think.

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. 

Primary Assumption of the Risk - 20 Years Later, Nalwa Confirms the Vitality and Breadth of Knight.

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.

CA Supreme Court Accepts Review In Valdez v. W.C.A.B. (Warehouse Demo Services)

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.

California Supreme Court Hears Argument in Pivotal Asbestos Product Liability Case

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. 

A Claim for Medical Expenses Is Limited to the Rate Negotiated by Plaintiff's Insurer - So Rules The California Supreme Court in Howell


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.

Employers Liable Only Once For Employee Negligence - California Follows the Majority Rule

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.

Preemption, Standing and Vexatious Litigants on California Supreme Court's May Argument Docket

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.

California Supreme Court to Address Liability for Residential Parties Serving Alcohol

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.

California Supreme Court Schedules Oral Argument for April

  • 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.

The California Supreme Court Issues Unanimous Opinions Addressing Insurance, Consumer Protection and ADR

  • 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.

A Profile of the California Supreme Court (minus Justice Moreno)

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. 

A Unanimous CA Supreme Court Upholds Mediation Confidentiality

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.

Associate Justice Carlos Moreno of the California Supreme Court

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.

Justice Moreno authored several notable opinions in his last year on the Supreme Court.

  • Ruiz v. Podolsky (2010) 50 Cal.4th 838. Finding that all wrongful death claimants are bound by arbitration agreements entered into pursuant to C.C.P. § 1295 , at least when the language of the agreement manifests an intent to bind these claimants.
  • Pearson Dental Supplies v. Superior Court (Turcios) (2010) 48 Cal.4th 665. In which the Court concluded that an arbitrator award was properly vacated when it prevented an employee from pursuing unwaivable statutory rights due to legal error, but that an arbitration agreement that require arbitration of administrative claims was enforceable.
  • International Society for Krishna Consciousness, Inc. v. City of Los Angeles (2010) 48 Cal.4th 446. Upholding City of Los Angeles’ ordinance limiting solicitation of monetary donations by religious groups at Los Angeles International Airport. Whether or not LAX was a public forum for free expression under the California Constitution, the ordinance was valid as a reasonable time, place, and manner restriction of expressive rights to the extent that it prohibited soliciting immediate donations. It was not substantially broader than necessary to address the problems caused by immediate solicitation of donations and did not unduly impinge on the group’s ability to convey its religious message.
  • People v. McKee (2010) 47 Cal. 4th 1172. Upheld the requirement that defendant, after his initial commitment under Sexually Violent Predators Act, must prove by a preponderance of evidence that he was no longer an SVP. This requirement did not violate due process; in his initial commitment, defendant had been found beyond a reasonable doubt to meet the definition of “SVP.”
  • People v. Martinez (2010) 47 Cal. 4th 911. Trial court did not err in admitting all of defendant's statements at trial. Defendant had been Mirandized five times before, including the previous night. The record therefore record failed to support any inference he was unaware of his rights or the significance of his waiver of counsel.

For a sampling of previous important opinions written by Justice Moreno earlier in his tenure on the Court, see our 2009 profile here.

CA Supreme Court schedules its February 2011 calendar

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.

California Supreme Court Justice Carlos Moreno Announces Retirement

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.

Chief Justice Ronald M. George: The Most Notable Opinions

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.4th 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.

Chief Justice Ronald M. George's Supreme Court Tenure (Part Three of Four)

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.

Chief Justice Ronald M. George's Early Judicial Career (Part Two of Four)

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.

Retiring Chief Justice Ronald M. George -- First of a Series

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.

Orders Compelling Compliance with a Legislative Subpoena Are Appealable in California

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.

California Supreme Court Upholds an Expanded Application of Private Attorney General Fees

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.

The Forgotten Election - Three California Supreme Court Justices Stand For Election Tomorrow

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:

California Supreme Court Sets Oral Argument for December 2010

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.


California Supreme Court To Review the Potential Scope of § 17200 Claims

The Supreme Court has granted review in two civil cases:

  • 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.


The California Supreme Court Schedules Oral Argument For Four Civil Cases

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.


California Supreme Court To Address Public Forum Doctrine and Nursing Care For Diabetic Students

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.

California Supreme Court's Workload Continues to Increase

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.

This week the California Supreme Court has set three civil matters for oral argument in October

  • 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.

California Supreme Court Grants Review in Another Preemption Case

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.

California Commission Confirms Judicial Nominations, Including for Chief Justice

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: 

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

California Supreme Court Issues Two Opinions - Addressing Collateral Estoppel and Compelling Arbitration of Medical Malpractice Wrongful Death Claims

  • 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.

No Private Right of Action Under Labor Code § 351 for Claim that Employer Wrongfully Took Tips

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.

California Supreme Court Clarifies Application of Triple-Penalty For Elder Claims

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.


The California Supreme Court Accepts Review - Can an Appellant Recover as Costs on Appeal the Interest Paid on Sums Borrowed To Secure a Letter of Credit Used to Secure a Surety Bond?

The California Supreme Court has accepted review in Rossa v. D.L. Falk Construction, to review the issue of whether California Rules of Court, rule 8.278(d)(1)(F), which permits a successful appellant to recover "the cost to obtain a letter of credit as collateral," allows the recovery of interest paid on sums borrowed to fund a letter of credit used to secure a surety bond. The Court of Appeal denied the claim, finding no statutory basis for awarding such costs. In doing so, Rossa first distinguished Cooper v. Westbrook Torrey Hills (2000) 81 Cal.App.4th 1294, which allowed the recovery of interest incurred in making a cash deposit pending appeal. However, Rossa then went on to “question its holding,” referring to the “obvious faultline” in Cooper’s analysis, arguing that Cooper is “further undermined” by a lack of statutory support and that it “stands as a conspicuous exception to the principles that costs are awarded only if statutorily authorized, and that such statutes are strictly construed.” Presumably, the Supreme Court accepted review in Rossa with the intention of resolving this conflict between the First and Fourth Districts. For more procedural details about the review in Rossa, see the Appeals & Writs update page.

The California Supreme Court Holds That Evidentiary Objections on Summary Judgment Aren't Waived Just Because the Trial Court Never Rules

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.

Schwarzenegger Nominates Justice Tani Cantil-Sakauye For Chief Justice of the California Supreme Court

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.”

California Chief Justice Ronald M. George Announces Retirement

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.

The California Supreme Court Further Restricts the Peculiar Risk Doctrine

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.

California Supreme Court Holds To Strict Interpretation Of Anti-Spam Statute

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.

California Supreme Court Grants Review in Six Civil Cases

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


  • 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.


California Supreme Court Rejects Attempt to Expand Definition of Employer

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.

California Supreme Court Dismisses Hertz Without Review


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

The California Supreme Court Addresses the Commercial Speech Exception to the Anti-SLAPP Statute

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.


The Supreme Court specified the elements for applying the commercial speech exception as follows: "[w]e interpret section 425.17(c) to exempt from the anti-SLAPP law a cause of action arising from commercial speech when

  • (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services;
  • (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services;
  • (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services or in the course of delivering the person’s goods or services; and
  • (4) the intended audience for the statement or conduct meets the definition set forth in section 425.17(c)(2).


California Supreme Court 5/12/10 Conference

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.


The California Supreme Court Sets A Busy Civil Calendar

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.


California State University Whistleblowers Have One Less Hurdle to Jump

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.


The California Supreme Court Limits Scope of Arbitration Awards

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.

California Supreme Court 4/21/10 Conference


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.

Taxpayer Action Draws Significant Amicus Interest

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.

Supreme Court Short List Profiles: Justice Carlos Moreno of the California Supreme Court

Appellate Strategist has posted several times in the last week about names being discussed as possible nominees to replace retiring Justice John Paul Stevens. But a list of names, however important, says little about the nominees. We therefore begin our series of short profiles of those whose names top the list. We begin with Carlos Moreno, an Associate Justice of the California Supreme Court.

The recipient of 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. He has a solid background as a trial judge, having served on the Los Angeles Superior Court and the U.S. District Court of Appeal, Central District of California. He was appointed to the California Supreme Court in 2001.

Moreno’s standing as a legal scholar is beyond dispute. He has a well-deserved reputation for integrity that cuts across ideological boundaries, and a good judicial temperament, though he has been known to politely but firmly challenge attorneys who make bald statements about legal propositions, often asking “what’s your authority for that, counsel?” (That is not a criticism, by the way.) He construes statutes as they are written, even if he disagrees with the underlying policy, subscribing to the (sometimes novel) view that that is a jurist’s job. His substantive specialties include criminal cases and arbitration.

Join us below the jump for a sampling of recent opinions he has authored.


  • Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal. 4th 133. Concluding that Cal. Code Civ. Proc., § 998 costs are available to parties conducting arbitration pursuant to Ins. Code, § 11580.2, even when those costs, if added to the arbitration award, exceed the policy limit. However, prejudgment interest was not available because the action was not an action for personal injury within the meaning of Civ. Code, § 3291.
  • In re Tobacco II Cases (2009) 46 Cal. 4th 298. Construed Proposition 64’s standing requirements in the Unfair Competition Law (Bus. & Prof. Code, § 17200, et seq.). The UCL standing requirements apply only to class representatives, not to all absent class members.
  • Van Horn v. Watson (2008) 45 Cal. 4th 322. This well-publicized “Good Samaritan” case construed a Health & Safety Code statute – immunizing from liability those who rendered emergency “medical” care at the scene of a medical emergency – concluding the statute did not immunize defendant, a passerby, who removed plaintiff from the vehicle. Arguably an example of reading statutory language as it is written.
  • Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134. Concluding disgorgement of profits is not an available remedy in an individual action brought under California’s Unfair Competition Law (Cal. Bus. & Prof. Code, §§ 17200, et seq.) The UCL only permits restitution, and disgorgement of profits does not qualify.


  • Gentry v. Superior Court (2007) 42 Cal. 4th 443. Remanding to determine whether a class arbitration waiver was substantively and procedurally unconscionable.
  • Discover Bank v. Superior Court (2005) 36 Cal. 4th 148. Finding the Court of Appeal erred in holding that the Federal Arbitration Act barred a California court from refusing to enforce class action waiver that was unconscionable. One-sided, exculpatory waivers in adhesion contracts, to extent they operate to insulate a party from liability under California law, are often unconscionable.
  • Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634. Concluding that plaintiffs – who alleged a cellular phone company’s arbitration provision was unconscionable –  lacked standing to sue under the Consumer Legal Remedies Act absent an allegation they had been damaged by the company’s purportedly unlawful practice.
  • Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal. 4th 557.  Holding the Mandatory Fee Arbitration Act did not preclude enforcement of an arbitration agreement between a law firm and a client.


  • TRB Investments, Inc. v. Fireman's Fund Ins. Co. (2006) 40 Cal. 4th 19. The word “construction,” as used in an insurance policy, could not reasonably be understood to be limited only to the erection of new structures, but instead contemplated all building, whether new construction, renovations, or additions, which required the substantial and continuing presence of workers on the premises.
  • Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal. 4th 747. Affirmed judgment for an insurer because the policy language effectively excluded all perils that could have contributed to the insured’s loss. Particularly given the direct and well-known relationship between rain and landslide, a reasonable insured would have understood that the words “contribute in any way with” connoted an intention to exclude rain that induced a landslide.
  • MacKinnon v. Truck Ins. Exch. (2003) 31 Cal. 4th 635. Declining to apply technical rules of insurance policy interpretation to produce an absurd result. Spraying for an infestation of insects does not qualify as a “pollutant” for purposes of a pollution exclusion defining “pollutant” as “chemicals” and “irritants.” Such a reading would mean that applying iodine to a cut fell within the pollution exclusion.


  • People v. Elliot (2005) 37 Cal. 4th 453. The jury was not required to find premeditated intent to impose the special circumstance of torture against a murder defendant who inflicted more than 80 stab wounds on the victim. 
  • People v. McKee (2010) 47 Cal. 4th 1172. Upheld the requirement that defendant, after his initial commitment under Sexually Violent Predators Act, must prove by a preponderance of evidence that he was no longer an SVP. This requirement did not violate due process; in his initial commitment, defendant had been found beyond a reasonable doubt to meet the definition of “SVP.”
  • People v. D'Arcy (2010) 48 Cal. 4th 257. Finding substantial evidence from which a rational jury could have found beyond a reasonable doubt that the victim’s killing constituted torture murder. Admission of the victim's tape-recorded statements to police as a dying declaration did not violate defendant’s right to confrontation.
  • People v. Martinez (2010) 47 Cal. 4th 911. Trial court did not err in admitting all of defendant's statements at trial. Defendant had been Mirandized five times before, including the previous night. The record therefore record failed to support any inference he was unaware of his rights or the significance of his waiver of counsel.


  • International Society for Krishna Consciousness, Inc. v. City of Los Angeles (2010) [pdf]  Upholding City of Los Angeles’ ordinance limiting solicitation of monetary donations by religious groups at Los Angeles International Airport. Whether or not LAX was a public forum for free expression under the California Constitution, the ordinance was valid as a reasonable time, place, and manner restriction of expressive rights to the extent that it prohibited soliciting immediate donations.  It was not substantially broader than necessary to address the problems caused by immediate solicitation of donations and did not unduly impinge on the group’s ability to convey its religious message.
  • Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824. Construing the Unruh Civil Rights Act as barring discrimination in favor of married couples, and against registered partners. However, prior to enactment of the domestic partner act, the defendant’s policy was not discriminatory on its face.
  • Elisa B. v. Superior Court (2005) 37 Cal.4th 108. California law recognized parental relationships involving two women.
  • Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141. Overturning permanent injunction against vocal critic of restaurant business, that barred all future defamatory statements by defendant and her agents, including a prohibition of reporting to government agencies. The injunction was broader than necessary to provide relief while minimizing the restriction of expression.

California Supreme Court 4/14/10 Conference

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.

California Supreme Court: Is The Economic Crisis Having An Effect On The State's Highest Court?

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.