The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

California Supreme Court Establishes Economic Injury Threshold for Unfair Competition and False Advertising Claims

By Angelo Carosio on January 27, 2011 Posted in Class Actions, Products Liability

The California Supreme Court has declared that “labels matter,” and that under California’s Unfair Competition Law, a consumer’s subjective sense of feeling duped translates to a cognizable economic injury.

The Court’s majority opinion in Kwikset Corporation v. Superior Court (.pdf), issued today, January 27th, held that plaintiffs “who can truthfully allege they were deceived by a product’s label into spending money to purchase the product, and would not have purchased it otherwise, have ‘lost money or property,’” and therefore have standing to sue under California’s Unfair Competition Law and False Advertising Law. The Court reversed a decision of the Fourth District Court of Appeal, and potentially opened the door to class action litigation brought by plaintiffs who have experienced no dissatisfaction with the actual function or performance of a manufacturer’s product.

The plaintiffs brought a class action lawsuit alleging that they purchased locksets manufactured by Kwikset in reliance upon representations that the locks were “Made in U.S.A.” or similarly designated. The locks contained components made in Taiwan or involved latch sub-assembly performed in Mexico. The plaintiffs alleged violations of California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200) for unlawful, unfair, and fraudulent business practices. Their complaint further alleged violation of California’s False Advertising Law (Cal. Bus. & Prof. Code § 17500.)

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

By on January 20, 2011 Posted in California

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

By on January 14, 2011 Posted in California

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

By on January 12, 2011 Posted in California

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.

CA Supreme Court schedules its February 2011 calendar

By on January 7, 2011 Posted in California

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

By Kirk Jenkins on January 6, 2011 Posted in California

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.

Fraud Unmasked in MMR/Autism Litigation

By Hall Marston on January 6, 2011 Posted in Health Care

From the late 1990’s, a wave of litigation and controversy has washed over the public health debate concerning the alleged connection between the then widely-used childhood MMR (measles, mumps and rubella) vaccine and autism. Beyond the scores of lawsuits, including class actions, the whirlwind drove down the vaccination rate (because concerned parents’ reservations about vaccine safety), which in turn increased the rate of disease and corresponding bumps in the morbidity and mortality tables.

The genesis of this maelstrom was a February, 1998 article in the prestigious medical journal Lancet, by Dr. Andrew Wakefield, M.D. Unknown to the journal’s editors, Dr. Wakefield had been on retainer for a British solicitor, Richard Barr, for two years prior to the article’s publication, and ultimately Mr. Barr paid Dr. Wakefield well over half a million dollars, plus expenses. Their apparent objective was to establish a temporal association between vaccination and the onset of autism, to foment litigation against the MMR industry. Beyond the public disgrace, this gambit cost Dr. Wakefield his medical license, forced the Lancet to withdraw and repudiate the article, and tarnished the reputations of other researchers associated with the article.

Chief Justice Ronald M. George: The Most Notable Opinions

By Kirk Jenkins on December 30, 2010 Posted in California

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

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

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

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

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

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

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

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

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

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

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

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

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

By Kirk Jenkins on December 29, 2010 Posted in California

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)

By Kirk Jenkins on December 28, 2010 Posted in California

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.