The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

California Supreme Court Civil Issues Pending: ADR

By on Posted in California, Supreme Court Updates

[UPDATED THROUGH SEPTEMBER 14, 2016]

Can Non-Legislative Policy Statements Support Overturning an Arbitration Award?  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, 244 Cal.App.4th 590, mod. 245 Cal.App.4th 63b). Review was granted 4/27/16

Can an Agricultural Employee Rely on the Statutory “Mandatory Mediation and Conciliation” Process?   After the Fifth District Court of Appeal reversed a decision of the Agricultural Labor Relations Board and denied a petition for peremptory writ of mandate, the Supreme Court granted review on the following issues: (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit? Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., S227243, (opinion below F068526, 236 Cal.App.4th 1024). Review was granted 8/21/17.

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, 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.

Who Determines Whether an Agreement Provides for Class Arbitration?
After the Court of Appeal found that the arbitrator should decide, and reversed an order in a civil action, the Supreme Court granted review on the following issue: Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue? Sandquist v. Lebo Automotive, Inc., S220812 (opinion below B244412, formerly 228 Cal.App.4th 65). Review was granted 11/12/14.  Update 1/14/15: Review granted in Network Capital Funding Corp. v. Papke, S222638 (opinion below G049172, formerly 23 Cal.App.4th 503), with briefing deferred pending a decision in Sandquist.  Update 4/1/15: Review granted in Rivers v. Cedar-Sinai Medical Care Foundation, S224592 (opinion below B249979, nonpublished), with briefing deferred pending Sandquist.  Update 6/10/15: Review granted in Universal Protection Service, L.P. v. Superior Court, S225450, (opinion below D066919, formerly 234 Cal.App.4th 1128). Briefing is deferred pending a decision in Sandquist.  Update 10/28/15: After the Third District Court of Appeal denying a petition seeking to challenge arbitration, the Court granted review in Universal Protection Service, LP v. Superior Court, S229442, (opinion below C078557, 239 Cal.App.4th 697). Briefing is deferred pending resolution of Sandquist.  Update 4/1/16: Oral argument scheduled for 5/3/16.  The briefs are here.  Update 5/3/16: Case argued and submitted.  Update 7/28/16: Opinion filed. In a 4-3 decision, the majority concluded that there was no universal presumption on this question, either in federal or state law, and so the issue must be addressed based on the terms of the specific contract at issue. The majority further concluded that the contract language here was sufficiently broad that it assigned to the arbitrator the task of deciding whether the agreement allowed for the arbitration of class actions, and thus affirmed the Court of Appeal’s decision. The dissent concluded that that recent federal cases indicated that classwide arbitrability is a gateway question for purposes of the FAA, and is therefore a question for the court.

California Supreme Court Civil Issues Pending: Torts & Products

By on Posted in California, Products Liability, Supreme Court Updates

[UPDATED THROUGH SEPTEMBER 21, 2016]

Does an Abutting Owner Have a Duty to Provide Safe Passage Across a Public Street? After the Court of Appeal reversed the judgment in a civil action, the Supreme Court granted review on the following issue: Does one who owns, possesses, or controls premises abutting a public street have a duty to an invitee to provide safe passage across that public street if that entity directs its invitees to park in its overflow parking lot across the street? Vasilenko v. Grace Family Church, S235412 (opinion below, C074801, 248 Cal.App.4th 146). Review was granted on 9/21/16.

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, formerly 243 Cal.App.4th 685). Review was granted 4/13/16.

When Is Industry Custom and Practice Admissible in a Strict Products Liability Action? After the Court of Appeal affirmed judgment for the manufacturer, and attempted to reconcile opposing appellate decisions on this issue, the Supreme Court granted review on the following issue: Is evidence of industry custom and practice admissible in a strict products liability action? Kim v. Toyota Motor Corp., S232754 (opinion below B247672, formerly 243 Cal.App.4th 1366, as modified 244 Cal.App.4th 643b). Review was granted 4/13/16.  Update 5/11/16: The Court limited the issue on review to the following: Did the trial court commit reversible error in admitting, as relevant to the risk-benefit test for design defect, evidence of industry custom and practice related to the alleged defect?

Do Public Universities Have a Duty to Warn Students about other Students?  After the Second District Court of Appeal granted a petition for peremptory writ of mandate, finding that a public university has no such general duty, the Supreme Court granted review of the following issue: Do California public institutions of higher education and their employees have a duty of care to their students while in the classroom to warn them of and protect them from foreseeable acts of violence by fellow students? Regents of University of California v. Superior Court, S230568, (opinion below B259424, formerly 240 Cal.App.4th 1296). Review was granted 1/20/16.

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 12/16/15.

Does the Right to Repair Act Bar Other Common Law Claims for Damages?  After the Fifth District Court of Appeal granted a petition for peremptory writ of mandate, thus staying the litigation, the Supreme Court granted review on the following issue: Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home? McMillin Albany LLC v. Superior Court, S229762, (opinion below F069370, formerly 239 Cal.App.4th 1132). Review was granted 11/24/15.

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

Does Employer Using Asbestos Owe a Duty to Employee’s Family?
The Supreme Court granted review in a pair of cases on the following issue: If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing? Haver v. BNSF Railway Co., S219919 (opinion below B246527, formerly 226 Cal.App.4th 1104, as modified 226 Cal.App.4th 1376b); and Kesner v. Superior Court, S219534 (opinion below A136378, formerly 226 Cal.App.4th 251). Review was granted on 8/20/14.  Update 2/11/15: Review granted in Beckering v. Shell Oil, S223526 (opinon below B256407,  nonpublished opinion), with briefing deferred pending a decision in Haver.  Update 5/12/16: Oral argument scheduled for 6/2/16.   Update 5/17/16: Case called and continued to September 2016 calendar. The Haver and Kesner cases are consolidated. Update 6/2/16: Case called and continued to September 2016.  Update 8/3/16: Oral argument calendared for 9/7/16. The briefs are here.  Update 9/7/16: Cause argued and submitted.

What Is the Duty of Salespersons from the same Brokerage Firm Who Handles Both Sides of a Residential Sale? The Supreme Court granted review of the following issue: When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code §2079.13(b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality and counseling to both? Horiike v. Coldwell Banker Residential Brokerage Co., S218734 (opinion below B246606, formerly 225 Cal.App.4th 427). Review was granted 7/16/14.  Update 5/12/16: Oral argument scheduled for 6/2/16. Update 5/17/16: Case called and continued to September 2016 calendar.  Update 8/3/16: Oral argument rescheduled for 9/8/16. Update 8/8/16: Oral argument rescheduled to 9/7/16. The briefs are here.  Update 9/7/16: Cause argued and submitted.

 

 

California Supreme Court Civil Issues Pending: Insurance

By on Posted in California

UPDATED THROUGH OCTOBER 12, 2016]

How Is a Covered Loss Divided Between Two Primary Insurers When One Has “Other Insurance” and “Limits Reductions” Clauses?   The Supreme Court certified review following a request under California Rules of Court, rule 8.548, by the U.S. Court of Appeals for the Second Circuit. The Supreme Court initially ordered briefing deferred pending a determination whether to restate the questions presented. On 10/12/16, the Supreme Court stated the issues as follows: Issue 1: When two primary liability insurers agree that their policies cover the same loss, may the primary insurer whose policy contains an “other insurance” clause (stating that its insurance is excess over any “other insurance or . . . self-insurance plan that covers a loss on the same basis”) enforce that clause in an action for equitable contribution brought by the primary insurer who defended and settled the insured’s claim and whose policy does not contain an other-insurance clause? Issue 2: In the same equitable contribution action described in Issue 1, when the amount paid by the primary insurer that settled the claim exceeds the non-settling primary insurer’s liability policy limits, what is the effect, if any, of the non-settling insurer’s “limits reduction” clause (stating that “[a]ll payments made under any local policy issued to [the insured] by us or any other insurance company will reduce the Limits of Insurance of this policy”)? Migdal Insurance Co. v. Insurance Co. of the State of Pennsylvania, S236177 (proceedings below, 2nd Cir. No. 15-2588-cv; __ Fed.Appx. __, 2016 WL 3639102). Review was granted on 9/14/16.

Does the 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.

Can the Insurance Commissioner Set Requirements For Replacement Value and Declare Non-Compliance as an Unfair Trade Practice? After the Second Appellate District Court of Appeal affirmed judgment against the Commissioner, the Supreme Court granted review of the following issues: (1) Does the Unfair Insurance Practices Act (Ins. Code, § 790, et seq.) give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement, and therefore an unfair trade practice, for purposes of the act? (2) Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions (a)-(e) of section 2695.183 of title 10 of the California Code of Regulations is a “misleading” statement with respect to the business of insurance? (Cal. Code of Regs., tit. 10, § 2695.183(j).) Association of California Ins. Companies v. Jones, S226529 (opinion below B248622, formerly at 235 Cal.App.4th 1009). Review was granted 7/13/15.  Update 9/8/16: Oral argument scheduled for 10/5/16. Update 9/14/16: Case is to be called and continued to November 2016 calendar.  Update 10/5/16: Case called and continued. Update 10/6/16: Oral argument scheduled for 11/2/16. Update 10/12/16: Oral argument rescheduled for 11/1/16. The briefs are here.

 

California Supreme Court Civil Issues Pending: Labor/Employment/Workers’ Compensation

By on Posted in California, Employment, Supreme Court Updates

[UPDATED THROUGH SEPTEMBER 29, 2016]

When Are Substitute Teachers Entitles to Unemployment Benefits?  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: Are substitute teachers and other on-call paraprofessional employees entitled to unemployment insurance benefits when they are not called to work during a summer school term or session. United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd., S235903, (opinion below, A142858, A143428, 247 Cal.App.4th 1235). Review was granted on 9/14/16.

Does Federal de Minimis Standard Apply to State Unpaid Wages Claim?  At the request the U.S. Court of Appeals for the Ninth Circuit, under California Rules of Court, rule 8.548, the Supreme Court accepted review of the following question: Does the federal Fair Labor Standard Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under California Labor Code §§ 510, 1194, and 1197?   Troester v. Starbucks Corp., S234969 (9th Circ. No. 14-55530; nonpublished order). Review was accepted on 8/17/16.

How to Calculate Overtime Pay for Mixed Compensation? After the Court of Appeal affirmed the judgment, the Supreme Court granted review on the following issue: What is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus? Alvarado v. Dart Container Corp. of California, S232607  (opinion below E061645, 243 Cal.App.4th 1200). Petition granted on 5/11/16.

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, formerly 243 Cal.App.4th 685). Review was granted 4/13/16.

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.

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.

Can an Agricultural Employer Refuse to Bargain with an Elected Union, and What Penalties Follow from such Actions? After the Fifth District Court of Appeal affirmed in part and reversed in part a decision of the Agricultural Labor Relations Board, the Supreme  Court granted review on the following issues: (1) May an employer assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union? Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., S227270, (opinion below, F069419, formerly 236 Cal.App.4th 1079).  Review granted 8/19/15.

Can an Agricultural Employee Rely on the Statutory “Mandatory Mediation and Conciliation” Process?   After the Fifth District Court of Appeal reversed in part and sustained in part a mandamus order of the Agricultural Labor Relations Board, and denied a petition for peremptory writ of mandate, the Supreme Court granted review on the following issues: (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit?  Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., S227243, (opinion below F068526, formerly 236 Cal.App.4th 1024). Review was granted 8/21/15.

What is the Status of Employees on Break but Still On Call?  The Supreme Court granted review, after the Court of Appeal reversed the judgment in a civil action, on the following issues: (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?  Augustus v. ABM Security Services, Inc., S224853, (lead case below, B243788, formerly 233 Cal.App.4th1065). Review was granted 4/29/15. Update 8/3/16: Oral argument scheduled for 9/7/16. Update 8/8/16: Oral argument continued to 9/29/16.   The briefs are here.  Update 9/29/16: Cause argued and submitted.

How Does an Employer Apply the Day of Rest under Labor Code §§ 551, 552 and 556?  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 issues in consolidated appeals: “(A) California Labor Code § 551 provides that ‘[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.’ Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period? (B) Labor Code § 556 exempts employers from providing such a day of rest ‘when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.’ (Emphasis added.) Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week? (C) Labor Code § 552 provides that an employer may not ‘cause his employees to work more than six days in seven.’ What does it mean for an employer to ‘cause’ an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else? Mendoza v. Nordstrom, S224611 (9th Cir,. No. 12-57130; 778 F.3d 834, Central District of California; 8:10-cv-00109-CJC-MLG.)  Certification granted on 4/29/15.

Which 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, formelly 230 Cal.App.4th 718).  Review was granted 1/28/15.

Does Federal Law Preempt the Recovery of Civil Penalties for Unfair Competition?  After the Court of Appeal granted a writ petition, the Supreme Court granted review on the following issue: Does federal law preempt a district attorney’s attempt to recover civil penalties under California’s unfair competition law based on an employer’s violation of workplace safety standards that resulted in the deaths of two employees? Solus Industrial Innovations, LLC v. Superior Court, S222314 (opinion below G047661, formerly 229 Cal.App.4th 1291).  Review was granted 1/14/15.

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 the decision to name the State of California as a defendant, instead of the hiring agency, is not grounds for dismissal.

Does Employer Using Asbestos Owe a Duty to Employee’s Family?
The Supreme Court granted review in a pair of cases on the following issue: If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing? Haver v. BNSF Railway Co., S219919 (opinion below B246527, formerly 226 Cal.App.4th 1104, as modified 226 Cal.App.4th 1376b); and Kesner v. Superior Court, S219534 (opinion below A136378, formerly 226 Cal.App.4th 251). Review was granted on 8/20/14.  Update 2/11/15: Review granted in Beckering v. Shell Oil, S223526 (opinon below B256407, nonpublished opinion), with briefing deferred pending a decision in Haver.  Update 5/12/16: Oral argument scheduled for 6/2/16. Update 5/17/16: Case to be called and continued to September 2016 calendar. The Haver and Kesner cases are consolidated. Update 6/2/16: Case called and continued to September 2016.  Update 8/3/16: Oral argument calendared for 9/7/16. The briefs are here.  Update 9/7/16: Cause argued and submitted.

 

Torts

By on Posted in Florida

UPDATED THROUGH March 30, 2017

Medical Malpractice – Presuit Requirements.  [1] Is a trial court’s determination that a plaintiffs’ corroborating presuit expert does not meet the statutory requirements reviewed for an abuse of discretion or under a de novo standard of review?  [2]  In analyzing purported presuit discovery violations, is an appellate court required to consider either the prejudice to the defendants or the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993)?  Morris v. Muniz, No. SC16-931 (review granted Jan. 19, 2017).  DCA decision:  189 So. 3d 348 (Fla. 1st DCA Apr. 27, 2016).  Status:  briefing; no oral argument.

Stand-Your-Ground-Law – Res Judicata/Collateral Estoppel.  Certified Conflict:  Does a criminal defendant who successfully establishes immunity from criminal prosecution under Florida’s Stand-Your-Ground-Law, § 776.032(1), Fla. Stat., have to prove it again in a subsequent civil suit arising from the same incident?  Kumar v. Patel, No. SC16-1457 (review granted Oct. 14, 2016).  DCA decision:  196 So. 3d 468 (Fla. 2d DCA June 29, 2016).  Status:  briefing; no oral argument.

Engle-Progeny Tobacco Cases – Preemption.  Certified Question:  Whether federal law implicitly preempts state law tort claims of strict liability and negligence by Engle progeny plaintiffs based on the sale of cigarettes.  R.J. Reynolds Tobacco Co. v. Marotta, No. SC16-218 (review granted Mar. 8, 2016).  DCA decision:  182 So. 3d 829 (Fla. 4th DCA Jan. 6, 2016).  Status:  decision pending; Oral Argument Video (Nov. 1, 2016); briefing complete (July 28, 2016).

Engle-Progeny Tobacco Cases – Comparative Fault.  Does Florida’s comparative fault statute apply to Engle-progeny cases when the plaintiff has prevailed on an intentional tort claim?  Schoeff v. R.J. Reynolds Tobacco Co., No. SC15-2233 (review granted May 26, 2016).  DCA decision: 178 So. 3d 487 (Fla. 4th DCA Nov. 4, 2015) Status:  decision pending; Oral Argument Video (Mar. 8, 2017); briefing complete (Oct. 10, 2016).

Medical Malpractice – Admissibility of Testimony from Subsequent Treating Physician.  Does the prohibition announced in Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014)—that a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care—apply to a co-treating/consultant physician testifying as a “hybrid” treating physician expert witness?  Cantore v. West Boca Med. Ctr., Inc., No. SC15-1926 (review granted Oct. 11, 2016).  DCA decision: 174 So. 3d 1114 (Fla. 4th DCA Sept. 24, 2015).  Status:  decision pending; briefing complete (Mar. 23, 2017); no oral argument.

Medical Malpractice – Admissibility of Testimony from Subsequent Treating Physician.  Does the prohibition announced in Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014)—that a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care—apply to a co-treating/consultant physician testifying as a “hybrid” treating physician expert witness?  Gutierrez v. Vargas, No. SC15-1924 (review granted Oct. 10, 2016).  DCA decision: 176 So. 3d 315 (Fla. 3d DCA Aug. 26, 2015).  Status:  decision pending; briefing complete (Jan. 11, 2017); no oral argument.

Medical Malpractice – Amendment 7 – External Peer Review Reports.  Do external peer review reports fall within the ambit of Amendment 7 which provides patients with a right of “access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident”?  Edwards v. Thomas, No. SC15-1893 (review granted Oct. 10, 2016).  DCA decision:  175 So. 3d 820 (Fla. 2d DCA July 10, 2015), sub nom. Bartow HMA, LLC v. Edwards.  Status:  oral argument is scheduled for May 2, 2017; briefing complete (Feb. 24, 2017).

Negligence – Railroad’s Duty of Care to Employee.  Does a railroad’s duty under the Federal Employer’s Liability Act, 45 U.S.C. § 51, to provide employees with a safe work place with prompt medical care include reasonably anticipating foreseeable medical emergencies and the problems that may arise if they occur in a remote area?  Sells v. CSX Transp., Inc., No. SC15-1639 (review granted Feb. 19, 2016).  DCA decision:  170 So. 3d 27 (Fla. 1st DCA May 4, 2015).  Status:  decision pending; Oral Argument Video (Mar. 6, 2017); briefing complete (Dec. 12, 2016).

Equitable Subrogation – Subsequent Tortfeasor.  Certified Question:  Is a party that has had judgment entered against it entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not been fully satisfied?  Holmes Regional Med. Ctr., Inc. v. Allstate Ins. Co., No. SC15-1555 (review granted June 10, 2016).  DCA decision:  171 So. 3d 163 (Fla. 5th DCA July 24, 2015).  Status:  decision pending; briefing complete (Nov. 7, 2016); no oral argument.

Medical Malpractice Presuit Notice – Validity of 2013 Amendments.  Are the 2013 amendments to the medical malpractice presuit notice sections of the Florida Statutes (§§ 766.106, 766.1065), which allow for presuit ex parte interviews between potential defendants and the potential claimant’s treating health care providers and require the potential claimant to sign a written waiver of federal privacy protection concerning relevant medical information before instigating a medical malpractice lawsuit, unconstitutional or preempted by the Health Insurance Portability Accountability Act of 1996 (HIPAA)?  Weaver v Myers, No. SC15-1538 (review granted Apr. 13, 2016).  DCA decision:  170 So. 3d 873 (Fla. 1st DCA July 21, 2015).  Status:  decision pending; Oral Argument Video (Dec. 8, 2016); briefing complete (Aug. 24, 2016).

Property

By on Posted in Florida

UPDATED THROUGH March 30, 2017

Foreclosure – Statute of Limitations.  Certified Conflict:  Can a foreclosure action, which is governed by a five-year statute of limitations, be based on payment defaults older than five years when the complaint alleges that the borrower was in a continuing state of default?  Bollettieri Resort Villas Condo. Ass’n v. The Bank of N.Y. Mellon, No. SC16-1680 (review granted Nov. 2, 2016).  DCA decision: 198 So. 3d 1140 (Fla. 2d DCA Aug. 26, 2016).  Status:  decision pending; briefing complete (Mar. 20, 2017); no oral argument.

Ad Valorem Tax Exemption – City Marina.  Certified Question:  In light of Florida Department of Revenue v. City of Gainesville, 918 So. 2d 250 (Fla. 2005), does a municipally owned and operated marina still qualify as a traditionally exempt “municipal or public purpose” under Article VII, Section 3(a) of the Florida Constitution?  Treasure Coast Marina, LC v. City of Ft. Pierce, No. SC16-1107 (review granted Aug. 25, 2016).  DCA decision:  195 So. 3d 1141 (Fla. 4th DCA May 31, 2016).  Status:  oral argument is scheduled for Apr. 5, 2017; briefing complete (Jan. 11, 2017).

Copyright Protection – Sound Recordings,  Questions Certified by the Eleventh Circuit Court of Appeals:  (1) Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance?  (2) To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction?  (3) To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction?  (4) To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition / misappropriation, common law conversion, or statutory civil theft under Fla. Stat. § 772.11 and Fla. Stat. § 812.014?  Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. SC16-1161 (review acknowledged July 5, 2016).  11th Cir. decision:  827 F.3d 1016 (June 29, 2016).  Status:  oral argument is scheduled for Apr. 6, 2017; briefing complete (Jan. 23, 2017).

Payment-in-lieu-of-Taxes (PILOT) Agreement – Ad Valorem Tax Exemption.  The Court answered the certified question in the negative.  It held that PILOT Agreements that require payments equaling the ad valorem taxes that would otherwise be due but for a statutory tax exemption do not violate section 196.1978, Florida Statutes (2000), and Article VII, § 9(a) of the Florida Constitution.  City of Largo, Florida v. AHF-Bay Fund, LLC, No. SC15-1261 (review granted Dec. 8, 2015).  DCA decision: 169 So. 3d 133 (Fla. 2d DCA Apr. 22, 2015).  Status: decided; Corrected Slip Opinion (Mar. 16, 2017); Oral Argument Video (Sept. 1, 2016); briefing complete (Apr. 15, 2016).

Eminent Domain – Harris Private Property Rights Protection Act.  Conflict Certified:  Can the owner of property adjacent to property that was subject to governmental action maintain a cause of action under the Harris Act?  Hardee Cnty., Fla. v. FINR II, Inc., No. SC15-1260 (review granted Aug. 18, 2015).  DCA decision: 164 So. 3d 1260 (Fla. 2d DCA June 10, 2015).  Status:  oral argument rescheduled to Thurs., Feb. 9, 2017; briefing complete (Dec. 29, 2015).

Eminent Domain – Harris Private Property Rights Protection Act. Question Certified: May a property owner maintain an action pursuant to the Harris Act if that owner has not had a law, regulation, or ordinance directly applied to the owner’s property which restricts or limits the use of the property? Smith v. City of Jacksonville, No. SC15-534 (review granted May 22, 2015). DCA decision: 159 So. 3d 888 (Fla. 1st DCA Feb. 26, 2015). Status:  oral argument rescheduled to Thurs., Feb. 9, 2017; briefing complete (July 11, 2016); suggestion of mootness denied (Mar. 18, 2016).

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Foreclosure – Statute of Limitations.  Rephrased Question Certified:  The Court answered the following rephrased certified question in the negative:  Does acceleration of payments due under a residential note and mortgage with a reinstatement provision in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal of the first foreclosure suit?  Bartram v. U.S. Bank. Nat’l Ass’n, No. SC14-1265; The Plantation at Ponte Vedra v. U.S. Bank Nat’l Ass’n, No. SC14-1266; Gratsiani v. U.S. Bank Nat’l Ass’n, No. SC14-1305 (review granted and cases consolidated Sept. 11, 2014).  DCA decision:  140 So. 3d 1007 (Fla. 5th DCA Apr. 25, 2014). Status:  motions for rehearing denied (Mar. 16, 2017); decided (Nov. 3, 2016); Corrected Slip Opinion (Mar. 16, 2017); Oral Argument Video (Nov. 4, 2015); briefing complete (Mar. 17, 2015).

Insurance

By on Posted in Florida

UPDATED THROUGH March 30, 2017

Meaning of “Suit” in CGL Policies – Chapter 558 Notices.  Question Certified by the Eleventh Circuit Court of Appeals:  “Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a ‘suit’ within the meaning of the CGL policies issued by C&F to ACI?”  Altman Contractors, Inc. v. Crum & Forster Spec. Ins. Co., No. SC16-1420 (review acknowledged Aug. 8, 2016).  11th Cir. decision:  832 F.3d 1318 (Aug. 2, 2016).  Status:  oral argument scheduled for Apr. 6, 2017; briefing complete (Jan. 23, 2017).

Attorneys’ Fees – Insurance Coverage.  Certified Conflict:  Are attorneys’ fees awarded pursuant to a proposal for settlement considered “costs” within the “Additional Payments” provision of an insurance policy that covers “All reasonable costs incurred by an insured at our request.”  GEICO v. Macedo, No. SC16-935 (review granted Oct. 19, 2016).  DCA decision:  190 So. 3d 1155 (Fla. 1st DCA May 6, 2016).  Status:  decision pending; briefing complete (Jan. 24, 2017); no oral argument.

Personal Injury Protection (PIP) Benefits – Reimbursement Per Medicare Fee Schedule.  The Court answered the following certified conflict issue in the affirmative: Where the principal PIP coverage clause in a policy for medical benefits states that it will pay “eighty percent of reasonable expenses for medically necessary” services, does the following provision clearly and unambiguously elect/give notice, in accordance with the Florida Supreme Court’s decision in Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013), to reimburse medical benefits solely and exclusively according to the amounts permitted in the Medicare fee schedules and related limitations of section 627.736(5)(a)2–5, Florida Statutes: “Any amounts payable under this coverage shall be subject to any and all limitations authorized by section 627.736 or any other provisions of the Florida Motor Vehicle No–Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.”  Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298 (review granted Jan. 20, 2016).  DCA decision:  177 So. 3d 19 (Fla. 4th DCA Aug. 19, 2015).  Status:  rehearing denied (Mar. 27, 2017); decided (Jan. 26, 2017); Slip Opinion; Oral Argument Video (Sept. 1, 2016); briefing complete (May 2, 2016).

Government

By on Posted in Florida

UPDATED THROUGH March 30, 2017

Ad Valorem Tax Exemption – City Marina.  Certified Question:  In light of Florida Department of Revenue v. City of Gainesville, 918 So. 2d 250 (Fla. 2005), does a municipally owned and operated marina still qualify as a traditionally exempt “municipal or public purpose” under Article VII, Section 3(a) of the Florida Constitution?  Treasure Coast Marina, LC v. City of Ft. Pierce, No. SC16-1107 (review granted Aug. 25, 2016).  DCA decision:  195 So. 3d 1141 (Fla. 4th DCA May 31, 2016).  Status:  oral argument scheduled for Apr. 5, 2017; briefing complete (Jan. 11, 2017).

Local Ordinance Allowing Police Oversight – Unconstitutionality.  Is a City of Miami ordinance creating a Civil Investigative Panel to oversee the sworn police department preempted by section 112.533(1), Florida Statutes (2007), and therefore unconstitutional?  D’Agastino v. City of Miami, No. SC16-645 (review granted June 28, 2016).  DCA decision: 189 So. 3d 236 (Fla. 3d DCA Mar. 16, 2016).  Status:  decision pending; Oral Argument Video (Feb. 7, 2017); briefing complete (Oct. 24, 2016).

Home Venue Privilege – Joint Tortfeasor Exception.  The Court concluded that jurisdiction was improvidently granted and therefore dismissed this case which involved the following issue:  Does the joint tortfeasor exception to the home venue privilege apply to a sheriff who is alleged to be vicariously liable for the negligence of one of his deputy’s in rear-ending another vehicle?  Shaw v. Hunter, No. SC16-118 (review granted May 25, 2016).  DCA decision: 182 So. 3d 784 (Fla. 1st DCA Dec. 31, 2015).  Status:  dismissed based on lack of jurisdiction (Mar. 9, 2017); Oral Argument Video (Feb. 8, 2017); briefing complete (Aug. 29, 2016).

Payment-in-lieu-of-Taxes (PILOT) Agreement – Ad Valorem Tax Exemption.  The Court answered the certified question in the negative.  It held that PILOT Agreements that require payments equaling the ad valorem taxes that would otherwise be due but for a statutory tax exemption do not violate section 196.1978, Florida Statutes (2000), and Article VII, § 9(a) of the Florida Constitution.  City of Largo, Florida v. AHF-Bay Fund, LLC, No. SC15-1261 (review granted Dec. 8, 2015).  DCA decision: 169 So. 3d 133 (Fla. 2d DCA Apr. 22, 2015).  Status: decided; Corrected Slip Opinion (Mar. 16, 2017); Oral Argument Video (Sept. 1, 2016); briefing complete (Apr. 15, 2016).

Slot Machine Gaming – Local Referenda. Certified Question: “Whether the Legislature intended that the third clause of section 551.102(4), Florida Statutes, enacted in 2009, authorize[s] expansion of slot machines beyond Miami-Dade and Broward Counties via local referendum in all other eligible Florida counties without additional statutory or constitutional authorization after the effective date of the act? Gretna Racing, LLC v. State Dep’t of Business & Prof. Reg., SC15-1929 (review granted Dec. 1, 2015). DCA decision: 178 So. 3d 15 (Fla. 1st DCA Oct. 2, 2015). Status: decision pending; Oral Argument Video (June 7, 2016); briefing complete (Mar. 29, 2016).

Eminent Domain – Harris Private Property Rights Protection Act.  Conflict Certified:  Can the owner of property adjacent to property that was subject to governmental action maintain a cause of action under the Harris Act?  Hardee Cnty., Fla. v. FINR II, Inc., No. SC15-1260 (review granted Aug. 18, 2015).  DCA decision: 164 So. 3d 1260 (Fla. 2d DCA June 10, 2015).  Status:  decision pending; Oral Argument Video (Feb. 9, 2017); briefing complete (Dec. 29, 2015).

Eminent Domain – Harris Private Property Rights Protection Act. Question Certified: May a property owner maintain an action pursuant to the Harris Act if that owner has not had a law, regulation, or ordinance directly applied to the owner’s property which restricts or limits the use of the property? Smith v. City of Jacksonville, No.  SC15-534 (review granted May 22, 2015). DCA decision: 159 So. 3d 888 (Fla. 1st DCA Feb. 26, 2015). Status:  decision pending; Oral Argument Video (Feb. 9, 2017); briefing complete (July 11, 2016); suggestion of mootness denied (Mar. 18, 2016).

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Family Law/Probate

By on Posted in Florida

UPDATED THROUGH March 30, 2017

Right to Marry – Ward.  Certified Question:  Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?  Smith v. Smith, No. SC16-1312 (review granted Aug. 25, 2016).  DCA decisions:  199 So. 3d 911 (Fla. 4th DCA Mar. 2, 2016); 195 So. 3d 416 (Fla. 4th DCA June 29, 2016) (on motion to certify question of great public importance).  Status:  decision pending; briefing completed (Sept. 28, 2016 [no answer brief filed]); no oral argument (removed from the oral argument calendar by Court order).

Divorce – Interspousal Gifts – Donative Intent.  The Court held that the competent substantial evidence standard, not the preponderance of credible evidence standard of appellate review, applies to a trial court’s finding that a party had donative intent.  Hooker v. Hooker, No. SC15-1881 (review granted Mar. 18, 2016).  DCA decision: 174 So. 3d 507 (Fla. 4th DCA Aug. 26, 2015).  Status:  decided; Slip Opinion (Mar. 30, 2017); Oral Argument Video (Nov. 1, 2016); briefing complete (Aug. 16, 2016).

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