[UPDATED THROUGH OCTOBER 5, 2016]
When Is an Agency Agreement a Public or Legislative Issue for Purposes of a Motion to Strike? After the Court of Appeal reversed an order granting a special motion to strike in a civil action, the Supreme Court limited review to the following issues: (1) Did plaintiffs’ causes of action alleging the breach of and interference with an exclusive agency agreement to negotiate the designation and development of a National Football League (NFL) stadium and related claims arise out of a public issue or an issue of public interest within the meaning of C.C.P. § 425.16? (2) Did plaintiffs’ causes of action arise out of communications made in connection with an issue under consideration by a legislative body? Rand Resources, LLC v. City of Carson, S235735 (opinion below, B264493, 247 Cal.App.4th 1080). Review was granted on 9/21/16.
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.
When May a General Contractor Withhold Retention Payments? After the Court of Appeal affirmed in part and reversed in part the judgment below, the Supreme Court granted review on the following issue: May a contractor withhold retention payments when there is a good faith dispute of any kind between the contractor and a subcontractor, or only when the dispute relates to the retention itself? United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., S231549 (opinion below B258860, formerly 243 Cal.App.4th 151). Petition was granted 3/16/16.
Does Insurance Code Apply to a Contract which Contains some Risk Distribution Terms? After the Court of Appeal affirmed judgment for the defendant, the Supreme Court granted review on the following issue: Was a self-storage facility’s storage rental agreement, which included provisions arguably meeting the definition of “insurance” (see Ins. Code, §§ 22, 1758.75), subject to regulation under the Insurance Code when the principal purpose of the agreement between the parties was the rental of storage space rather than the shifting and distribution of risk? Heckart v. A-1 Self Storage, Inc., S232322 (opinion below D066831, formerly 243 Cal.App.4th 525). Petition granted on 3/16/16.
When can Plaintiff Obtain Employee Contact Information to Prepare a Representative Action? After the Second District Court of Appeal denied a petition for peremptory writ of mandate, the Supreme Court granted review on the following issues: (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information? (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.) Williams v. Superior Court, S227228, (opinion below B259967, formerly 236 Cal.App.4th 1151). Review was granted 8/19/15.
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.
Can Growers by Forced to Support a California Trade Commission? After the Fifth District Court of Appeal affirmed the judgment upholding the statutory scheme for the Commission, the Supreme Court granted review of the following issue: Under Article 1, section 2(a), of the California Constitution, can the California Table Grape Commission compel unwilling produce growers to contribute for generic commercial advertising? Delano Farms Co. v. California Table Grape Com., S226538, (opinion below F067956, formerly 235 Cal.App.4th 967). Review was granted 7/22/15.
Can Second Lowest Bidder State a Claim for Intentional Interference with Prospective Economic Advantage Against the Winning Bidder? After the Court of Appeal reversed the judgment in a civil action, the Supreme Court granted review on the following issues: (1) In the context of competitive bidding on a public works contract, may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with California’s prevailing wage law after the contract was awarded? (2) To state a cause of action for intentional interference with prospective economic advantage, must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendant’s interference, or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder? Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc., S225398, (opinion below B255558; 234 Cal.App.4th 748). Review was granted 6/10/15.
Does Raising an Affirmative Defense Trigger the Attorney Fees Provision of a Contract or Civil Code § 1717? After the Court of Appeal reversed an order denying attorney fees the Supreme Court granted review on the following issues: (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement? (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense? Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536 (opinion below A138306, formerly 231 Cal.App.4th 805). Review was granted on 3/18/15.
Can a Court Base Class Action Attorney Fees on a Common Fund Percentage? After the Court of Appeal affirmed a civil judgment, the Supreme Court granted review on the following issue: Does Serrano v. Priest (1977) 20 Cal.3d 25 permit a trial court to anchor its calculation of a reasonable attorney’s fees award in a class action on a percentage of the common fund recovered? Lafitte v. Robert Half Internat., Inc., S222996 (opinion below B249253, formerly 231 Cal.App.4th 860). Review was granted 2/25/15. Update 5/4/16: Oral argument scheduled for 5/27/16. The briefs are here. Update 5/27/16: Case argued and submitted. Update 8/11/16: Opinion filed. The unanimous Supreme Court affirmed the lower courts and distinguished Serrano on the grounds that it was addressing a reasonable attorney fee in connection with an award under the private attorney general doctrine. The Supreme Court confirmed that when an attorney fee is awarded out of a common fund preserved or recovered by means of litigation, the award is not per se unreasonable merely because it is calculated as a percentage of the common fund.
What Definition of Employee and Independent Contractor Controls in Wage and Hour Class Action? After the Court of Appeal granted in part and denied in part a writ petition, the Supreme Court granted review on the following issue: In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control? Dynamex Operations West, Inc. v. Superior Court S222732 (opinion below B249546, formerly 230 Cal.App.4th 718). Review was granted 1/28/15.
Do Inapplicable Fees and Backdating Violate the Automobile Sales Finance Act? After the Court of Appeal affirmed in part and reversed in part the judgment in a civil action, the Supreme Court granted review on the following issues: (1) Does the inclusion of inapplicable smog check and smog certification fees in an automobile purchase contract violate the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.)? (2) Does backdating a second or subsequent finance agreement to the date of the first finance agreement for purchase of a vehicle violate the Act? Raceway Ford Cases, S222211 (opinion below E054517, formerly 229 Cal.App.4th 1119). Review granted 12/17/14. Update 9/8/16: Oral argument scheduled for 10/5/16. The briefs are here. Update 10/5/16: Cause argued and submitted.
Can an Employee Who Retires Still Bring a Claim Under Labor Code §203, and Can It Be Against the State Instead of the Hiring Agency? After the Court of Appeal found that retirees can bring such a claim, but affirmed dismissal of the State Controller’s Office as unnecessary, the Supreme Court granted review on the following issues: (1) When bringing a putative class action to recover penalties against an “employer” under Labor Code § 203, may a former state employee sue the “State of California” instead of the specific agency for which the employee previously worked? (2) Do Labor Code § 202 and § 203, which provide a right of action for an employee who “quits” his or her employment, authorize a suit by an employee who retires?
McLean v. State of California, S221554 (opinion below, C074515, formerly 228 Cal.App.4th 1500). Review was granted on 11/25/14. Update 5/4/16: Oral argument scheduled for 5/26/16. The briefs are here. Update 5/26/16: Case argued and submitted. Update 8/18/16: Opinion filed. The unanimous Supreme Court affirmed the Court of Appeal, concluding that Labor Code §§ 202 and 203 apply when employees retire from their employment, and that it the decision to name the State of California as a defendant, instead of the hiring agency, was not grounds for dismissal.
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 C.C.P. §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 the Proposed Development Consistent with the City’s General Plan? After the Court of Appeal affirmed in part and reversed in part in an action for writ of administrative mandate, the Supreme Court granted review of the following issue: Is the proposed development project of low density housing at issue in this case consistent with the city’s general plan? Orange Citizens for Parks & Recreation v. Superior Court, S212800 (opinion below G047013, G047219, formerly 217 Cal.App.4th 1005). Review granted 10/28/13. Update 8/25/16: Oral argument scheduled for 9/29/16. The briefs are here. Update 9/29/16: Cause argued and submitted.