[UPDATED THROUGH SEPTEMBER 7, 2010]
California Supreme Court Civil Issues Pending: Other
[UPDATED THROUGH SEPTEMBER 29, 2016]
Is Parental Fault or Neglect Needed for Dependency Jurisdiction? After the Court of Appeal affirmed orders in a juvenile dependency proceeding, the Supreme Court granted review of the following issue: Does Welfare and Institutions Code § 300(b)(1) authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child? In re R.T., S226416, (opinion below B256411, formerly 235 Cal.App.4th 795). Review was granted 6/17/15. Update 1/27/16: Review granted in In re Tyler R., S231144, (opinion below B261136, formerly 241 Cal.App.4th 1250). Briefing deferred pending resolution of In re R.T.
Does Probate Code § 15306.5 Create a 25% Cap for the Bankruptcy Estate on a Beneficiaries Estate? In response to a request under C.R.C., rule 8.548 by the United States Court of Appeals for the Ninth Circuit, the Supreme Court certified the following issue in consolidated appeals: Does Probate Code § 15306.5 impose an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or may the bankruptcy estate reach more than 25 percent under other sections of the Probate Code?” Frealy v. Reynolds, S224985, (9th Cir. No. 12-60068; 779 F.3d 1028; Central District of California; BAP No. 11-1433, Bankr. Case No. 09-14039-MJ, Adversary Case No. 09-01205-MJ.) Certification was granted 4/29/15.
Do Court Rules Conflict With Welfare & Instit. Code Re Application of Indian Child Welfare Act? After the Court of Appeal found that Rules of Court could not change the statutory definition of Indian Children, the Supreme Court granted review on the following issue: Do rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code § 224.1(a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment? In re Abbigail A., S220187 (opinion below C074264, formerly 226 Cal.App.4th 1450. Review granted 9/10/14. Update 4/1/16: Oral argument scheduled for 5/3/16. The briefs are here. Update 5/3/16: Case argued and submitted. Update 7/14/16: Opinion filed. The unanimous Supreme Court affirmed the Court of Appeal in part, agreeing that California Rules of Court, Rule 5.482(c) is invalid because it conflicts with the state statutes, including their incorporation of the federal definition of an Indian child. However, the Supreme Court found that 5.484(c)(2) was consistent with the governing laws, as it merely directs the juvenile court to pursue tribal membership for a child who meets the statutory definition of Indian child
Does Tribal Sovereign Immunity Apply if Daily Operations Are Contracted Out to a Third Party? After the Court of Appeal affirmed the judgment in a civil action, the Supreme Court granted review on the following issue: Is a payday loan company owned by a federally recognized Indian tribe entitled to tribal sovereign immunity, and thus exempt from state regulation, if the day-to-day management of the business is handled by a third party management company that is not affiliated with the tribe and pays the tribe a small percentage of the gross revenues? People v. Miami National Enterprises, S216878 (opinion below B242644, formerly 223 Cal.App.4th 21). Review granted on 5/21/14. Update 8/25/16: Oral argument scheduled for 9/29/16. Update 9/29/16: Cause argued and submitted.
California Supreme Court Civil Issues Pending: Taxation and Assessments
[UPDATED THROUGH SEPTEMBER 29, 2016]
When Is a City Required to Place a Tax Proposal on the Ballot? After the Court of Appeal in an action for administrative mandate reversed the judgment denying a request to compel a ballot measure, the Supreme Court granted review on the following issue: Is a proposed initiative measure that would impose a tax subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election? California Cannabis Coalition v. City of Upland, S234148 (opinon below E063664, 245 Cal.App.4th 970). Petition was granted 6/29/16
Is 1% Increase on Electricity Bills a Tax or a Franchise Fee? After the Second District Court of Appeal reversed the judgment in a civil action, the Supreme Court limited review to the following issue: Is the City of Santa Barbara’s 1 percent increase on its electricity bills (i.e., the 1 percent surcharge) a tax subject to Proposition 218’s voter approval requirement or a franchise fee that may be imposed by the City without voter consent? Jacks v. City of Santa Barbara, S225589, (opinion below B253474, formerly 234 Cal.App.4th 925). Review was granted 6/10/15.
What Is the Status of a Payment in Lieu of Taxes by a City Utility under Proposition 26? The Supreme Court granted review after the Court of Appeal reversed the judgment in a civil action on the following issues: (1) Is a payment in lieu of taxes (PILOT) transferred from the city utility to the city general fund a “tax” under Proposition 26 (Cal. Const., art. XIII C, § 1, subd. (e))? (2) Does the exception for “reasonable costs to the local government of providing the service or product” apply to the PILOT (Cal. Const., art. XIII C, § 1, subd. (e)(2))? (3) Does the PILOT predate Proposition 26? Citizens for Fair REU Rates v. City of Redding, S224779, (opinon below C071906, formerly 233 Cal.App.4th 402, as modified 233 Cal.App.4th 1479a). Review was granted 4/29/15.
Does a Taxpayer Who Denies Any Interest in Property Have to Exhaust Administrative Remedies? After the Court of Appeal reversed judgment the Supreme Court granted review on the following issues: (1) Must a taxpayer against whom an escape assessment on personal property has been made exhaust administrative remedies by filing an application with the county’s board of equalization to reduce the assessment if the taxpayer claims that it does not own and has no interest in the assessed property, or does the taxpayer fall within the “nullity” exception to the exhaustion requirement? (2) Is a taxpayer who files an application for changed assessment with the county’s board of equalization subject to a one-year limitations period for paying the assessment and filing an action challenging the assessment, or does the period within which the taxpayer may file such an action begin to run only after the taxpayer has paid the disputed taxes? Williams & Fickett v. County of Fresno, S224476 (opinion below F068652, formerly 232 Cal.App.4th 1250). Review granted 4/22/15.
Can a County Impose a Tax Based on a Change of Real Property Ownership? After the Court of Appeal affirmed the judgment in a civil action, the Supreme Court granted review on the following issue: Does Revenue and Taxation Code § 11911 authorize a county to impose a documentary transfer tax based on a change in ownership or control of a legal entity that directly or indirectly holds title to real property? North Ardmore Avenue v. County of Los Angeles, S222329 (opinion below B248536, formerly 229 Cal.App.4th 1335. Review was granted 1/14/15.
What Taxes Must be Paid for Standing to Bring a Taxpayer Waste Action?
The Supreme Court granted review on the following issue: Must a plaintiff have paid or be liable to pay a property tax to a government entity in order to bring a taxpayer waste action against that entity under C.C.P. § 526a, or can the payment of other taxes confer standing? Wheatherford v. City of San Rafael, S219567 (opinion below A138949, formerly 226 Cal.App.4th 460). Review was granted on 9/10/14. Update 10/29/14: Review granted in Dane v City of Santa Rosa, S221341 (opinion below A138355, nonpublished), with briefing deferred pending a decision in Wheatherford.
How Does Use of Online Travel Company Affect Tax on Hotel Rentals? The Supreme Court granted review on the following issue: When a customer books a hotel room through an online travel company, should the occupancy tax levied on the rent charged by the hotel be calculated based on the retail rate paid by the customer to obtain the right to use the room or on the wholesale amount that the hotel receives from the online travel company after that company has deducted its markup and fees? In re Transient Occupancy Tax Cases, S218400 (opinion below B243800, formerly 225 Cal.App.4th 56). Review was granted 7/30/14. Update 8/25/16: Oral argument scheduled for 9/29/16. The briefs are here. Update 9/29/16: Cause argued and submitted.
California Supreme Court Civil Issues Pending: Civil Rights
[UPDATED THROUGH SEPTEMBER 21, 2016]
What Rights Does an Online Publisher Have Regarding the Court’s Online Content? After the Court of Appeal affirmed the judgment in a civil action, the Supreme Court granted review on the following issues: (1) Does an on-line publisher have a right to notice and an opportunity to be heard before a trial court orders removal of on-line content? (2) Does the statutory immunity provided by 47 U.S.C. 230(c)(1) and (e)(3) bar a trial court from enjoining a website publisher’s actions and potentially enforcing the court’s order by way of contempt or other sanctions? Hassell v. Bird, S235968, (opinion below A143233, 247 Cal.App.4th 1336). Review was granted on 9/21/16.
When Should Special Immigrant Juvenile Findings Be Made? After the Court of Appeal denied a petition for peremptory writ of mandate, the Supreme Court granted review on following issue: Did the trial court err in denying petitioner’s request for an order making findings concerning Special Immigrant Juvenile status (8 U.S.C. §1101(a)(27)(J); see Code Civ. Proc., § 155) and placing her in her mother’s sole legal and physical custody? Bianka M. v. Superior Court, S233757 (opinion below B267454, 245 Cal.App.4th 406). Review granted 5/25/16.
Can a Court Adopt a Policy that Denies a Verbatim Transcript for Appellate Review to Indigent Litigants? After the Fourth District, division one, Court of Appeal affirmed judgment for the defendant, the Supreme Court granted review of the following issue: In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review? Jameson v. Desta, S230899, (opinion below D066793, formerly 241 Cal.App.4th 491). Review was granted 1/27/16.
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.
Can Non-Recreational Property Use Ripen Into an Implied Dedication to Public Use? After the Second District Court of Appeal affirmed in part and reversed in part on cross-appeals, the Supreme Court granted review of the following issue: Does Civil Code § 1009 preclude non-recreational use of non-coastal private property from ripening into an implied dedication of a public road? Scher v. Burke, S230104, (B235892, formerly 240 Cal.App.4th 381). Review was granted 11/24/15.
In Performing Background Checks, How do Employers Decide Whether to Follow ICRAA and CCRA? After the Second District Court of Appeal reversed summary judgment for the defendant and held that both acts apply, the Supreme Court granted review of the following issue: Is the Investigative Consumer Reporting Agencies Act (Civ. Code, § 1786 et seq., “ICRAA”) unconstitutionally vague as applied to background checks conducted on a company’s employees, because persons and entities subject to both that Act and the Consumer Credit Reporting Agencies Act (Civ. Code, §1785.1 et seq., “CCRA”) cannot determine which statute applies? Connor v. First Student, Inc., S229428, (opinion below B256075, formerly 239 Cal.App.4th 526). Review was granted 11/24/15.
Is the Data Collected by “Automated License Plate Readers” Subject to Public Disclosure? After the Second District Court of Appeal denied a petition for writ of mandate to compel the production of police records, the Supreme Court granted review on the following issue: Does information collected by police using “automated license plate readers” — high-speed cameras that automatically scan and record the license plate numbers and time, date and location of every passing vehicle without suspicion of criminal activity — constitute law enforcement “records of . . . investigations” that are permanently exempt from disclosure under the Public Records Act in accordance with Gov. Code § 6254(f)? American Civil Liberties Union Foundation of Southern California v. Superior Court, S227106, (opinion below B259392, formerly 236 Cal.App.4th 673, as modified). Review was granted 7/29/15.
Can Growers by Forced to Support 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.
Under FAA, Are Statutory Claims for Public Injunctive Relief Subject to Mandatory Arbitration? After the Court of Appeal reversed an order denying a petition to compel arbitration, the Supreme Court granted review on following issue: Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration? McGill v. Citibank, N.A., S224086 (opinion below G049838, formerly 232 Cal.App.4th 753). Review was granted 4/1/15. Update 9/8/16: Oral argument scheduled for 10/6/16. Update 9/14/16: Case is to be called and continued to December 2016 calendar.
What Privacy Interest Do Patients Have in Controlled Substance Prescription Data? After the Second District Court of Appeal found no violation of privacy rights, the Supreme Court granted review of the following issues: (1) Do a physician’s patients have a protected privacy interest in the controlled substance prescription data collected and submitted to the California Department of Justice under Health and Safety Code § 11165? (2) If so, is disclosure of such data to the Medical Board of California justified by a compelling state interest? Lewis v. Superior Court, S219811 (opinion below B252032, formerly 226 Cal.App.4th 933). Review was granted on 9/17/14.
When Do Testing Activities Constitute a Taking Which Allows the Application of Precondemnation Entry Statutes? After the Court of Appeal affirmed in part and reversed in part an order granting a petition for precondemnation entry, the Supreme Court limited review to the following issues: (1) Do the geological testing activities proposed by the Dept. of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the 2/22/11, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (CCP §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking? Property Reserve v. Superior Court, S217738 (opinion below C067758, formerly 224 Cal.App.4th 828). Review was granted on 6/25/14. Update 1/13/16: The Court granted review after the Fourth District, division one, Court of Appeal affirmed an order granting a petition for precondemnation entry in Young’s Market Company v. Superior Court, S230808, (opinion below D068213, formerly 242 Cal.App.4th 356). Briefing was deferred pending resolution of Property Reserve. Update 4/1/16: Oral argument scheduled for 5/3/16. The briefs are here. Update 5/3/16: Case argued and submitted. Update 7/21/16: Opinion filed. The Supreme Court declined to resolve the first two issues listed above, assuming for the sake of argument that both sets of activities constituted a taking. In an 8-1 decision, the Court found that the precondemnation entry process established by C.C.P. §§ 1245.010-1245.060, which required a court order and a deposit to cover anticipated damages before the requested activity could begin, constituted a constitutionally valid eminent domain proceeding once it was reformed by the Court to allow for a jury determination of damages. As a result, it was unnecessary to initiate “classic eminent domain proceedings” for such testing. In a concurring opinion, Justice Liu agreed in the result, but found that this process did not invoke the eminent domain requirements at all, but instead that it addressed a reasonable basis to prepare for such proceedings.
Are Outside Communications by Public Employees Still “Public Records”? After the Court of Appeal granted a petition for peremptory writ of mandate, the Supreme Court granted review on the following issue: Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act? City of San Jose v. Superior Court, S218066 (opinion below H039498, formerly 225 Cal.App.4th 75, as modified). Review was granted on 6/25/14. . Update 10/6/16: Oral argument scheduled for 11/2/16. The briefs are here. Update 10/12/16: Case to be called and continued to December 2016 calendar.
Are Laws Restricting Ammunition Sales Unconstitutional? After the Court of Appeal granted a permanent injunction, the Supreme Court granted review on the following issue: Are the Penal Code sections that regulate “ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person, notwithstanding that the ammunition may also be used in some rifles” (Pen. Code, § 16650, subd. (a)) unconstitutional on their face for failure to afford adequate notice of the regulated conduct and/or failure to provide sufficient guidelines to prevent arbitrary enforcement? Parker v. State of California, S215265 (opinion below F062490, formerly 221 Cal.App.4th 340). Review granted 2/19/14. Update 7/20/16: The court ordered supplemental letter briefs addressing whether the passage of Senate Bill No. 1235 (2015–2016 Reg. Sess.) rendered plaintiff’s claims moot.
Should a Potential Dedication Requirement Affect an Eminent Domain Case? The Supreme Court granted review on the following issues: (1) In this eminent domain case, was the constitutionality of the dedication requirement — that the city claimed it would have required in order to grant the property owner permission to put the property to a higher use — a question that had to be resolved by the jury pursuant to article I, section 19, of the California Constitution? (2) Was the dedication requirement a “project effect” that the eminent domain law required to be ignored in determining just compensation? City of Perris v. Stamper S213468 (opinion below E053395, formerly 218 Cal.App.4th 1104). Review granted on 11/13/13. Update 4/1/16: Oral argument scheduled for 5/5/16. Update 4/29/16: Oral argument to be rescheduled in May 2016. Update 5/5/16: Case called and continued to 5/26/16. The briefs are here. Update 5/26/16: Case argued and submitted. Update 8/15/16: Opinion filed. The unanimous Supreme Court reversed the Court of Appeal and found that the issue of whether the theoretical dedication requirement was constitutional was a mixed question of law and fact, but predominated by law. Thus, the issue was properly put to a court. The factual question of whether such a dedication would have been imposed, along with other issues of compensation, then go to a jury. A majority of six then held that the project effect rule generally applies “to situations where it was probable at the time the dedication requirement was put in place that the property designated for public use was to be included in the project for which the property is being condemned.” This established a preliminary factual question for the trial court to decide before the value of compensation is addressed.
California Supreme Court Civil Issues Pending: Environmental
[UPDATED THROUGH AUGUST 29, 2016]
What Steps Are Required for a City to Approve a Development Plan on Coastal Property? After the Fourth District, division 3, Court of Appeal reversed an administrative mandamus judgment disapproving of some actions by the City, the Supreme Court granted review on the following issues: (1) Did the City’s approval of the project at issue comport with the directives in its general plan to “coordinate with” and “work with” the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city’s interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas — as defined in the Cal. Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) — in the environmental impact report for the project? Banning Ranch Conservancy v. City of Newport Beach, S227473, (opinion below, G049691, formerly 236 Cal.App.4th 1341). Review was granted 8/19/15.
What Authority Does the State Water Resources Control Board have to Set the Annual Discharge Fee? After a divided First District Court of Appeal affirmed the Board’s authority to set the annual permit fee, the Supreme Court granted review on the following issues: (1) Does Water Code § 181 permit the State Water Resources Control Board to approve its annual fee under the waste discharge permit program by a majority of the quorum? (2) Does Proposition 26 apply to the waste discharge permit program fee? (3) Does the Board have the initial burden of demonstrating the validity of its fee? (4) Is the fee, which is based on balancing the fees and costs of the waste discharge permit program, an invalid tax unless it separately balances the fees and costs of each of the eight program areas within the program? California Building Industry Assn. v. State Water Resources Control Bd., S226753 (opinion below A137680, as modified, formerly 235 Cal.App.4th 1430 and 236 Cal.App.4th 529a). Review was granted 7/20/15.
Do Pumping Charges and Water Rate Ratios Violate Propositions 218 or 26? After the Court of Appeal reversed the judgment in a civil action, the Supreme Court limited review to the following issues: (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26? (2) Does the rate ratio mandated by Water Code § 75594 violate Proposition 218 or Proposition 26? City of San Buenaventura v. United Water Conservation Dist., S226036, (opinon below B251810, formerly 235 Cal.App.4th 228, as modified 235 Cal.App.4th 956b). Review was granted 6/24/15. Update 3/23/16: Review granted in Great Oaks Water Co. v. Santa Clara Valley Water Dist. S231846 (opinion below H035260, formerly 242 Cal.App.4th 1187). Briefing deferred pending resolution of City of San Buenaventura.
Does an EIR Need to Address Greenhouse Gas Emission Goals in Executive Order? After the Court of Appeal affirmed the judgment below, the Supreme Court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? Cleveland National Forest Foundation v. San Diego Assn. of Governments, S223603, (opinion below D063288, formerly 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a). Review was granted 3/11/15.
What Is the Scope of ICCTA Preemption? After the Court of Appeal affirmed the judgments in actions for writ of administrative mandate, the Supreme Court granted review on the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property? Friends of the Eel River v. North Coast Railroad Authority, S222472 (opinion below A139222, formerly 230 Cal.App.4th 85). Review was granted 12/10/14.
What Conditions Can the Cal. Coastal Comm. Impose on Permits and Does Proceeding with Construction Waive a Challenge? After the Court of Appeal reversed the judgment in an action for writ of administrative mandate, the Supreme Court granted review on the following issues: (1) Did plaintiffs, who objected in writing and orally to certain conditions contained within a coastal development permit approved by defendant California Coastal Commission and who filed a petition for writ of mandate (C.C.P. § 1094.5) challenging those conditions, waive their right to challenge the conditions by subsequently executing and recording deed restrictions recognizing the existence of the conditions and constructing the project as approved? (2) Did the permit condition allowing plaintiffs to construct a seawall on their property, but requiring them to apply for a new permit in 20 years or to remove the seawall, violate Public Resources Code § 30235 or the federal Constitution? (3) Were plaintiffs required to obtain a permit to reconstruct the bottom portion of a bluff-to-beach staircase that had been destroyed by a series of winter storms, or was that portion of the project exempt from permitting requirements pursuant to Public Resources Code § 30610(g)(1)? Lynch v. California Coastal Com., S221980 (opinion below D064120, formerly 229 Cal.App.4th 658). Review was granted 12/10/14.
What Is the Scope of Review Under CEQA? After the Court of Appeal reversed judgment for the City rejecting a petition for administrative mandate , the Supreme Court granted review concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.) Sierra Club v. County of Fresno, S219783 (opinion below F066798, formerlly 226 Cal.App.4th 704). Review was granted 10/1/14.
When Do Testing Activities Constitute a Taking Which Allows the Application of Precondemnation Entry Statutes? After the Court of Appeal affirmed in part and reversed in part an order granting a petition for precondemnation entry, the Supreme Court limited review to the following issues: (1) Do the geological testing activities proposed by the Dept. of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the 2/22/11, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (CCP §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking? Property Reserve v. Superior Court, S217738 (opinion below C067758, formerly 224 Cal.App.4th 828). Review was granted on 6/25/14. Update 1/13/16: The Court granted review after the Fourth District, division one, Court of Appeal affirmed an order granting a petition for precondemnation entry in Young’s Market Company v. Superior Court, S230808, (opinion below D068213, formerly 242 Cal.App.4th 356). Briefing was deferred pending resolution of Property Reserve. Update 4/1/16: Oral argument scheduled for 5/3/16. The briefs are here. Update 5/3/16: Case argued and submitted. Update 7/21/16: Opinion filed. The Supreme Court declined to resolve the first two issues listed above, assuming for the sake of argument that both sets of activities constituted a taking. In an 8-1 decision, the Court found that the precondemnation entry process established by C.C.P. §§ 1245.010-1245.060, which required a court order and a deposit to cover anticipated damages before the requested activity could begin, constituted a constitutionally valid eminent domain proceeding once it was reformed by the Court to allow for a jury determination of damages. As a result, it was unnecessary to initiate “classic eminent domain proceedings” for such testing. In a concurring opinion, Justice Liu agreed in the result, but found that this process did not invoke the eminent domain requirements at all, but instead that it addressed a reasonable basis to prepare for such proceedings.
Are NPDES Requirements Subject to Reimbursement? After the Court of Appeal affirmed the judgment below, the Supreme Court granted review on the following issue: Are the requirements in the National Pollutant Discharge Elimination System (NPDES) permits issued to real parties in interest by the regional water quality control board state mandates subject to reimbursement under article XIII B, section 6, subdivision (b), of the state Constitution? Dept. of Finance v. Comm. on State Mandates, S214855 (opinion below B237153, formerly 220 Cal.App.4th 740, as modified 221 Cal.App.4th 166d). Review granted 1/29/14. Update 5/12/16: Oral argument scheduled for 6/2/16. The briefs are here. Update 6/2/16: Case argued and submitted. Update 8/29/16: Opinion filed. In a 4-3 decision, the Supreme Court reversed and found that there was no federal law or regulation which imposed these conditions or which required the state to impose them. Instead, the Court found that the permit conditions were imposed as a result of the state’s discretionary action. The Court then remanded for consideration of issues not previously reached or raised on appeal. Update 9/13/16: Petition for rehearing filed. Update 9/14/16: Time to consider petition is extended to 11/27/16.
What Is the Standard of Review for a Subsequent EIR? After the Court of Appeal affirmed the judgment in an action for writ of administrative mandate, the Supreme Court granted review on the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)? Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061, (opinion below A135892, nonpublished opinion). Review granted 1/15/14. Update 4/1/16: Oral argument scheduled for 5/4/16. The briefs are here. Update 5/4/16: Case argued and submitted. Update 5/11/16: Submission of the matter is vacated and the Court directed the parties to submit supplemental briefs in the following questions: (1) Under California Environmental Quality Act (CEQA) Guidelines § 15162, what standard of judicial review applies to an agency’s determination that no EIR is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration? (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479–1482.) (2) Does CEQA Guidelines § 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute? (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073–1074 with Benton at pp. 1479–1480.). Update 6/23/16: Cause is resubmitted. Update 9/19/16: Opinion issued. The unanimous Supreme Court reversed the Court of Appeal, and held that the agency’s decision was subject to review for substantial evidence. The Court explained that when an agency proposes changes to a previously approved project, its environmental review obligations depend on the effect of the proposed changes on the decision making process and not on any abstract notion of whether this is a ”new” project. An agency that proposes project changes must determine whether it can rely on the previous environmental document in light of the proposed changes and, whether major revisions to the previous environmental document are required due to the existence of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence. The Court held there is no place in this scheme for the courts to impose their own determination of whether the final proposal is a new project or a modified version of an old one.
What Are the Procedures for a Petition to Delist a Species Under the California Endangered Species Act? The Supreme Court limited review to the following issues: (1) Under the California Endangered Species Act, Fish and Game Code § 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error? (2) If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration? Central Coast Forest Assn. v. Fish & Game Com., S208181 (opinion below C060569, formerly 211 Cal.App.4th 1433). The Court granted review on 2/27/13.
California Supreme Court Civil Issues Pending: Civil Procedure/Evidence/Discovery
[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.
California Supreme Court Civil Issues Pending: Judicial & Appellate Review
[UPDATED THROUGH SEPTEBMER 29, 2016]
Can You Appeal a Claim That Was Dismissed Without Prejudice With a Waiver of the Statute of Limitations? After the Court of Appeal dismissed an appeal as being untimely and from a nonfinal judgment, the Supreme Court granted review on the issue of whether plaintiff can take an appeal regarding causes of action in a cross-complaint that were dismissed without prejudice with a waiver of the statute of limitations? Kurwa v. Kislinger, S234617 (opinion below B264641, nonpublished opinion). Review was granted 8/10/16.
Is Denial of Motion to Vacate Judgment Separately Appealable? After the Court of Appeal granted a motion to dismiss the appeal as untimely, the Supreme Court granted limited review of the following issue: Is the denial of a motion to vacate the judgment under C.C.P. § 663 separately appealable? Ryan v. Rosenfeld, S232582 (nonpublished order, entered 1/13/16, in case A145465). Review was granted 4/27/16.
Does Law of the Case Doctrine Bar Issue Being Raised on Second Appellate Review? After the Court of Appeal affirmed the judgment, and held that its earlier opinion allowing the taxpayer suit 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.
Can a Court Adopt a Policy that Denies a Verbatim Transcript for Appellate Review to Indigent Litigants? After the Fourth District, division one, Court of Appeal affirmed judgment for the defendant, the Supreme Court granted review of the following issue: In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review? Jameson v. Desta, S230899, (opinion below D066793, formerly 241 Cal.App.4th 491). Review was granted 1/27/16.
Is a Petition for Relief Needed to Support a Claim When a Timely Application to File a Late Claim Was Filed? After the Fourth District, division three, Court of Appeal 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.
Is Order Partially Granting Writ of Administrative Mandate Appealable? After the Court of Appeal dismissed an appeal from an order on a petition for writ of administrative mandate, the Supreme Court granted review on the following issue: Is a trial court order granting in part and denying in part a physician’s petition for writ of administrative mandate regarding a hospital’s disciplinary action and remanding the matter to the hospital for further administrative proceedings an appealable order? Dhillon v. John Muir Health, S224472 (case below A143195; dismissed on court’s own motion). Review was granted 4/8/15.
Can a Right to a Jury Trial Be Decided by Writ of Mandate?
The Supreme Court granted review of the following issues: (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal? (See Nessbit v. Superior Court (1931) 214 Cal. 1.) (2) Is there a right to jury trial on a retaliation cause of action under Health & Safety Code § 1278.5? Shaw v. Superior Court, S221530 (opinion below B254958, formerly 229 Cal.App.4th 12). Review was granted 11/12/14.
What Is the Scope of Review Under CEQA? After the Court of Appeal reversed judgment for the City rejecting a petition for administrative mandate, the Supreme Court granted review concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.) Sierra Club v. County of Fresno, S219783 (opinion below F066798, formerlly 226 Cal.App.4th 704). Review was granted 10/1/14.
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.
What Is the Standard of Review for a Subsequent EIR? After the Court of Appeal affirmed the judgment in an action for writ of administrative mandate, the Supreme Court granted review on the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report (EIR), a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)? Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061, (opinion below A135892, nonpublished opinion). Review granted 1/15/14. Update 4/1/16: Oral argument scheduled for 5/4/16. The briefs are here. Update 5/4/16: Case argued and submitted. Update 5/11/16: Submission of the matter is vacated and the Court directed the parties to submit supplemental briefs in the following questions: (1) Under California Environmental Quality Act (CEQA) Guidelines § 15162, what standard of judicial review applies to an agency’s determination that no EIR is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration? (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479–1482.) (2) Does CEQA Guidelines § 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute? (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073–1074 with Benton at pp. 1479–1480.) Update 6/23/16: Cause is resubmitted. Update 9/19/16: Opinion issued. The unanimous Supreme Court reversed the Court of Appeal, and held that the agency’s decision was subject to review for substantial evidence. The Court explained that when an agency proposes changes to a previously approved project, its environmental review obligations depend on the effect of the proposed changes on the decision making process, and not on any abstract notion of whether this is a ”new” project. An agency that proposes project changes must determine whether it can rely on the previous environmental document in light of the proposed changes and whether major revisions to the previous environmental document are required due to the existence of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence. The Court held there is no place in this scheme for the courts to impose their own determination of whether the final proposal is a new project or a modified version of an old one.
California Supreme Court Civil Issues Pending: Commercial/Class Actions
[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.
California Supreme Court Civil Issues Pending: Healthcare Related
[UPDATED THROUGH SEPTEMBER 8, 2016]
What Are the Liability Limits of a Brand Name Manufacturer? After the Court of Appeal reversed to allow plaintiff to file an amended complaint after the demurrer was sustained, the Supreme Court granted review on the following issue: May the brand name manufacturer of a pharmaceutical drug that divested all ownership interest in the drug be held liable for injuries caused years later by another manufacturer’s generic version of that drug? T.H. v. Novartis Pharmaceuticals Corp., S233898 (opinion below D067839, 245 Cal.App.4th 589). Review was granted 6/8/16.
May an Injured Worker Bring a Separate Medical Malpractice Claim Against Workers’ Compensation Utilization Review Company? After the Court of Appeal sustained the demurrer, but reversed to allow leave to amend, the Supreme Court granted review of the following issues: (1) Is a claim by an injured worker for medical malpractice brought against a workers’ compensation utilization review company barred by workers’ compensation as the exclusive remedy? (2) Does a workers’ compensation utilization review company that performs medical utilization reviews on behalf of employers owe a duty of care to an injured worker? (3) Did the Court of Appeal err in finding that plaintiffs should be given leave to amend their complaint in this case? King v. CompPartners, Inc., S232197 (opinion below E063527, 243 Cal.App.4th 685). Review was granted 4/13/16.
Is Order Partially Granting Writ of Administrative Mandate Appealable? After the Court of Appeal dismissed an appeal from an order on a petition for writ of administrative mandate, the Supreme Court granted review on the following issue: Is a trial court order granting in part and denying in part a physician’s petition for writ of administrative mandate regarding a hospital’s disciplinary action and remanding the matter to the hospital for further administrative proceedings an appealable order? Dhillon v. John Muir Health, S224472, (case below A143195; dismissed on court’s own motion). Review was granted 4/8/15.
Is there a Right to a Jury Trial under Health & Safety Code § 1278.5?
The Supreme Court granted review of the following issues: (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal? (See Nessbit v. Superior Court (1931) 214 Cal. 1.) (2) Is there a right to jury trial on a retaliation cause of action under Health & Safety Code § 1278.5? Shaw v. Superior Court, S221530 (opinion below B254958, formerly 229 Cal.App.4th 12). Review was granted 11/12/14.
What Privacy Interest Do Patients Have in Controlled Substance Prescription Data?
After the Court of Appeal found no violation of privacy rights, the Supreme Court granted review of the following issues: (1) Do a physician’s patients have a protected privacy interest in the controlled substance prescription data collected and submitted to the California Department of Justice under Health and Safety Code § 11165? (2) If so, is disclosure of such data to the Medical Board of California justified by a compelling state interest? Lewis v. Superior Court, S219811 (opinion below B252032, formerly 226 Cal.App.4th 933). Review was granted on 9/17/14.
What Is the Obligation of an HMO when it Delegates Emergency Reimbursements to an IPA that becomes Insolvent? After the Court of Appeal reversed the judgment below, the Supreme Court granted review on the following issues: (1) Does the delegation — by a health care service plan (HMO) to an independent physicians association (IPA), under Health and Safety Code §1371.4(e) — of the HMO’s responsibility to reimburse emergency medical service providers for emergency care provided to the HMO’s enrollees relieve the HMO of the ultimate obligation to pay for emergency medical care provided to its enrollees by non-contracting emergency medical service providers, if the IPA becomes insolvent and is unable to pay? (2) Does an HMO have a duty to emergency medical service providers to protect them from financial harm resulting from the insolvency of an IPA which is otherwise financially responsible for the emergency medical care provided to its enrollees? Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., S218497 (opinion below B238867, and upon rehearing, formerly 225 Cal.App.4th 237). Review was granted 7/16/14. Update 8/3/16: Oral argument scheduled for 9/8/16. The briefs are here. Update 9/8/16: Cause argued and submitted.
California Supreme Court Civil Issues Pending: Attorney Related
[UPDATED THROUGH SEPTEMBER 8, 2016]
What Interest Does a Dissolved Law Firm have in an Ongoing Legal Matter Which Was Handled on an Hourly Basis? Following a request by the U.S. Court of Appeals for the Ninth Circuit under California Rules of Court, rule 8.548, the Supreme Court granted review on this issue: Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis? Heller Ehrman LLP v. Davis Wright Tremaine LLP, S236208 (Requesting case – 9th Cir. Nos. 14-16314, 14-16315, 14-16317, 14-16318; __ F.3d __, 2016 WL 4011194.) Review was granted 8/31/16.
Can a Sophisticated and Represented Party Give Informed Consent to a Future Conflict, and Does a Harmless Conflict Bar Collection of Fees ? After the Court of Appeal reversed the judgment which confirmed an arbitration award upholding the engagement agreement and finding that counsel was entitled to all of its fees, the Supreme Court granted review on the following issues: (1) May a court rely on non-legislative expressions of public policy (i.e., California Rules of Professional Conduct, Rule 3-310), to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work? Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., S232946 (opinion below B256314 (as modified), 244 Cal.App.4th 590, mod. 245 Cal.App.4th 63b). Review was granted 4/27/16.
Does the Interim Adverse Judgment Rule Apply to Bar Malicious Prosecution after an Ultimate Finding of Bad Faith? After the 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.
Are Redacted Attorney Invoices Still Privileged? After the 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.
Does Raising an Affirmative Defense Trigger the Attorney Fees Provision of 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.
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.
