[UPDATED THROUGH OCTOBER 6, 2016]
Which Statute of Limitations Controls for an Alleged Toxic Exposure before Birth? After the Court of Appeal affirmed summary judgment for defendant, the Supreme Court granted review on the following issue: Does the six-year limitations period in C.C.P. § 340.4, which governs actions based on birth and pre-birth injuries and is not subject to tolling for minority, or the two-year limitations period in C.C.P. § 340.8, which applies to actions for injury based upon exposure to a toxic substance and is subject to tolling for minority, govern an action alleging pre-birth injuries due to exposure to a toxic substance? Lopez v. Sony Electronics, Inc., S235357 (opinion below B256792, 247 Cal.App.4th 444). Review was granted 8/24/16.
Can an Unnamed and Uninvolved Class Member Appeal? After the Court of Appeal dismissed the appeal of a class member who challenged the attorney fees awarded to class counsel, the Supreme Court granted review on the following issue: Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.) Hernandez v. Restoration Hardware, Inc., S233983 (opinion below D067091, 245 Cal.App.4th 651). Review was granted 6/22/16.
Does Delayed Discovery Apply to Claim Presentation to Public Entity? After the Court of Appeal reversed the judgment, the Supreme Court granted review on the following issues: (1) Does the delayed discovery rule in Code of Civil Procedure § 340.1 apply to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act must be made? (2) Does Government Code § 905(m), apply to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009? Rubinstein v. Doe No. 1, S234269 (opinion below D066722, 245 Cal.App.4th 1037). Review granted 6/15/16.
When Is the Former Testimony of Non-Parties Admissible? After the Court of Appeal affirmed an order denying a special motion to strike in a civil action, the Supreme Court granted review on the following issues: (1) Is testimony given in a criminal case by persons who are not parties in a subsequent civil action admissible in that action to oppose a special motion to strike? (2) Is such testimony subject to the conditions in Evidence Code § 1290 et seq. for receiving former testimony in evidence? Sweetwater Union School Dist. v. Gilbane Building Co., S233526 (opinion below D067383, 245 Cal.App.4th 19). Review was granted 6/8/16.
Does Exclusion of Expert Opinion Apply to Summary Judgment? After the Court of Appeal affirmed the judgment below, and the exclusion of expert declarations, the Supreme Court granted limited review to the following issue: Does C.C.P. § 2034.300, which requires a trial court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to comply with the rules for exchange of expert witness information, apply to a motion for summary judgment? Perry v. Bakewell Hawthorne, LLC, S233096 (opinion below B264027, formerly 244 Cal.App.4th 712). Review was granted 4/27/16.
May a Taxpayer Suit Enforce Animal Cruelty Laws Despite Civil Code § 3369? After the Court of Appeal affirmed the judgment, and held that its earlier opinion allowing the taxpayer suit to proceed was law of the case, the Supreme Court granted limited review on the following issues: (1) Does Civil Code § 3369 bar taxpayer actions brought under the authority of C.C.P. § 526a seeking to enjoin violations of Penal Code provisions concerning animal abuse? (2) Does the law of the case doctrine foreclose petitioners’ reliance upon that legal argument in this appeal? Leider v. Lewis, S232622 (opinion below B244414, formerly 243 Cal.App.4th 1078, mod. 244 Cal.App.4th 643c). Review was granted 4/27/16.
Does Special Motion to Strike Apply to Claims Which Only Challenge Validity of an Action? After the Court of Appeal reversed an order denying a special motion to strike in a civil action, the Supreme Court granted review of the following issue: Does C.C.P. § 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications? Park v. Board of Trustees of California State University, S229728, (B260047, as modified, formerly 239 Cal.App.4th 1258). Review was granted 12/16/16.
Is a Petition for Relief Needed to Support a Claim When a Timely Application to File a Late Claim Was Filed? After the Court of Appeal Fourth District, division three, affirmed an order denying a petition for relief under the Government Claims Act (Gov. Code, § 810, et seq.), the Supreme Court granted review of the following issue: Must a claimant under the Government Claims Act file a petition for relief from Government Code § 945.4’s claim requirement, as set forth in Government Code § 946.6, if he has submitted a timely application for leave to present a late claim under Government Code § 911.6(b)(2), and was a minor at all relevant times? J.M. v. Huntington Beach Union High School Dist., S230510, (opinion below G049773, formerly 240 Cal.App.4th 1019). Review was granted 12/16/16.
Does Federal Law Bar the Production of Social Media Records? After the Court of Appeal granted a petition for peremptory writ of mandate, and quashed subpoenas for the production of social media records, the Supreme Court granted review of the following issues: (1) Did the Court of Appeal properly conclude that defendants are not entitled to pretrial access to records in the possession of Facebook, Instagram, and Twitter under the federal Stored Communications Act (18 U.S.C. § 2701, et seq.) and People v. Hammon (1997) 15 Cal.4th 117 ? (2) Does an order barring pretrial access to the requested records violate defendants’ right to compulsory process and confrontation under the Sixth Amendment or their due process right to a fair trial? (3) Should this court limit or overrule People v. Hammon? Facebook, Inc. v. Superior Court, S230051, (opinion below A144315, formerly 240 Cal.App.4th 203). Review was granted 12/16/16.
Does the Interim Adverse Judgment Rule Apply to Bar Malicious Prosecution after an Ultimate Finding of Bad Faith? After the Second District Court of Appeal affirmed an order granting a special motion to strike, the Supreme Court granted review of the following issues: (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith? (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6? Parrish v. Latham & Watkins, S228277, (opinion below B244841, and after rehearing, formerly 238 Cal.App.4th 81). Review was granted 10/14/95.
Can the Trial Court Consider Late-Filed Documents Regarding a New Trial? After the Fourth District, Division One, Court of Appeal affirmed an order granting a new trial, the Supreme Court granted review on the following issue: Are the time constraints in California C.C.P. § 659a jurisdictional such that a court cannot consider late-filed documents? Kabran v. Sharp Memorial Hospital, S227393, (opinion below D064133, formerly 236 Cal.App.4th 1294). Review was granted 7/29/15. Update 10/6/16: Oral argument scheduled for 11/2/16. The briefs are here.
Are Defendants the Prevailing Parties after a Procedural Dismissal? After the Second District Court of Appeal affirmed an order denying an award of attorney fees, the Supreme Court granted review of the following issue: Were defendants entitled to an award of attorney fees under Civil Code § 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause? DisputeSuite.com, LLC v. Scoreinc.com, S226652, (opinion below B248694, formerly 235 Cal.App.4th 1261, as modified 236 Cal.App.4th 529e). Review was granted on 7/29/15.
When Does Prejudgment Interest on a Retroactive Disability Award Start? After the Fourth District Court of Appeal, Division 1, reversed the judgment which awarded prejudgment interest on all retroactive amounts, the Supreme Court granted review on the following issue: If a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, is prejudgment interest under Civil Code § 3287 calculated from the day after the employee’s last day of regular compensation or the day on which the employee submitted the claim for the benefits? Flethez v. San Bernardino County Employees Retirement Assn., S226779, (opinion below D066959, formerly 236 Cal.App.4th 65). Review was granted 7/15/15.
Are Redacted Attorney Invoices Still Privileged? After the Second District Court of Appeal granted a petition for peremptory writ of mandate, the Supreme Court granted review on the following issue: Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted? Los Angeles County Bd. of Supervisors v. Superior Court, S226645, (opinion below B257230, formerly 235 Cal.App.4th 1154). Review was granted 7/8/15. Update 3/23/16: Review granted in Marina Coast Water Dist. v. Public Utilities Com., S230728 (original proceeding). Briefing deferred pending resolution of Los Angeles County Bd. of Supervisors. Update 9/8/16: Oral argument scheduled for 10/6/16. The briefs are here. Update 10/6/16: Cause argued and submitted.
Can Complaint Be Only Partially Subject to a Special Motion to Strike? The Supreme Court granted review after the Court of Appeal affirmed an order denying a special motion to strike in a civil action, on the following issue: Does a special motion to strike under Code of Civil Procedure § 425.16 authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute? Baral v Schnitt, S225090, (opinion below B253620, formerly 233 Cal.App.4th 1423). Review was granted 5/13/15. Update 4/1/16: Oral argument scheduled for 5/5/16. The briefs are here. Update 5/5/16: Case argued and submitted. Update 7/27/16: Review granted in Crossroads Investors, L.P. v. Federal National Mortgage Assn., S234737 (opinion below C072585, 246 Cal.App.4th 529). Briefing deferred pending a decision in Baral. Update 8/1/16: Opinion filed. The unanimous Supreme Court resolved the dispute between the appellate courts on this issue and concluded that an anti-SLAPP motion to strike only applied to those allegations or claims that invoked protected activities, even if those claims were mixed in with claims of unprotected activities in a single cause of action as pled by plaintiff. The unprotected allegations would be unaffected by the motion. In doing so, the Court overruled Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.
Is there Jurisdiction for a Nonresident Plaintiff Against a Nonresident Manufacturer? After the Court of Appeal found specific jurisdiction, after concluding there was no general jurisdiction in light of recent USSC decisions, the Supreme Court granted review on the following issues: (1) Did the plaintiffs in this action who are not residents of California establish specific jurisdiction over their claims against the nonresident pharmaceutical drug manufacturer? (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 571 U.S. __ [134 S.Ct. 746, 187 L.Ed.2d 624]? Bristol-Myers Squibb Co. v. Superior Court, S221038 (opinion below A140035, formerly 228 Cal.App.4th 605; in an issue arising from JCCP 4748). Review was granted on 11/17/14. Update 7/22/15: Review granted in BNSF Railway Co. v. Superior Court, S226284 (opinion below B260798, formerly 235 Cal.App.4th 591), after the Second Appellate District found general jurisdiction lacking. Briefing is deferred pending decision in Bristol-Myers Squibb Co. v. Superior Court. Update 5/12/16: Oral argument scheduled for 6/2/16. The briefs are here. Update 6/2/16: Care argued and submitted. Update 8/29/16: Opinion filed. The Court unanimously held that there was no basis for general jurisdiction. However, in a 4-3 decision, the Supreme Court affirmed the Court of Appeal, with the majority finding specific jurisdiction over the nonresident pharmaceutical product claims alleged here. While acknowledging that the product was not developed or manufactured in California, and that the nonresident plaintiffs had no connection with California, the majority noted that Bristol-Myers “maintains substantial operations in California.” The majority then concluded that the claims by residents and nonresidents were based on the same national conduct, that these claims were sufficiently related to the existing California contacts, and that Bristol Myers did not show that the assertion of specific jurisdiction would be unreasonable. The majority also stated the specific jurisdiction must be decided on a case-by-case basis. The dissent found no evidence of contacts with California that would support specific jurisdiction over the claims of nonresidents.
Can City Officials Invoke CCP §425.16 Against an Allegation that They Had a Financial Interest in the Contract? The Supreme Court granted review of the following issue: Did votes by city officials to approve a contract constitute conduct protected under CCP §425.16 despite the allegation that they had a financial interest in the contract? City of Montebello v. Vasquez, S219052 (opinion below B245959, formerly 226 Cal.App.4th 1084). Review was granted 8/13/14. Update 6/24/15: review granted in FTR International v. Board of Trustees, S226521, (lead case below B242220, nonpublished opinion.) Briefing is deferred pending a decision in Vasquez. Update 5/4/16: Oral argument scheduled for 5/26/16. The briefs are here. Update 5/26/16: Case argued and submitted. Update 8/8/16: Opinion filed. A unanimous Supreme Court agreed with the lower courts that the public enforcement exception to CCP §425.16(d) does not apply because this lawsuit was not brought in the name of the people by a public official acting as a public prosecutor, but by an outside law firm in the city’s own name. The Court then split 5-2 over the issue of protected conduct, with the majority finding that votes by city officials in favor of the contract were protected activity under the anti-SLAPP law. The majority found that the councilmembers’ votes, as well as statements made in the course of their deliberations at the city council meeting where the votes were taken, qualify as “any written or oral statement or writing made before a legislative . . . proceeding.” C.C.P. § 425.16(e)(1). In this regard they reversed the Court of Appeal. The dissenters would have affirmed the Court of Appeal’s conclusion that this was not protected conduct.
Is Failure to Issue a Statement of Decision Reversible Per Se? After the Court of Appeal affirmed the judgment in a civil action, the Supreme Court granted review on the following issue: Is a trial court’s error in failing to issue a statement of decision upon a timely request reversible per se? F.P. v. Monier, S216566 (opinion below C062329, formerly 222 Cal.App.4th 1087). Review was granted 4/16/14
Can the Court Award Attorney Fees After Striking the Complaint for Lack of Jurisdiction? After the Court of Appeal reversed an order awarding attorney fees in a civil action, the Supreme Court granted review on the following issue: If the trial court grants a special motion to strike under CCP § 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by § 425.16(c)? Barry v. State Bar of California, S214058 (opinion below B242054, formerly 218 Cal.App.4th 1435). Review granted on 11/27/13. Update 10/6/16: Oral argument scheduled for 11/2/16. The briefs are here.