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.

 STATUTORY CONSTRUCTION

  • 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.

ARBITRATION

  • 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.

INSURANCE

  • 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.

CRIMINAL

  • 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.

CIVIL RIGHTS

  • 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.