Review Granted

Duran v. U.S. Bank National Association, S200923­—Review Granted­—May 16, 2012.

This is a wage and hour class action brought by a plaintiff class of 260 current and former “business banking officers” who allegedly were misclassified as outside sales personnel.  The trial court entered judgment for the plaintiff class after a bench trial.  The employer appealed. 

The Court of Appeal, First District, Division One, reversed in a published decision, Duran v. U.S. Bank Nat. Assn. (2012) 203 Cal.App.4th 212, holding the trial court abused its discretion when it denied the defendants’ motion to decertify the class.   The  court held the trial court violated the defendant’s due process rights by deciding class-wide liability based on evidence relating to a 10 percent sample of class members, particularly given the large margin of error in the sampling and the lack of randomness in the sample selection.

The questions presented are: (1) whether a defendant has a due process right to obtain an individual determination of its exemption defense for every class member; and (2) whether class-wide liability may be imposed based on statistical sampling or other forms of representative evidence.

City of Lake Forest v. Evergreen Holistic Collective, S201454 (Lead Case)—Review Granted—May 16, 2012.

City of Lake Forest v. Lake Forest Wellness Center, S201372—Review Granted and Held—May 16, 2012. 

This is a pair of nuisance actions brought by a city against medical marijuana dispensaries, based on a citywide ban against such dispensaries.  The trial court granted preliminary injunctions shutting down the dispensaries as a per se nuisance.  The dispensaries appealed.  In the lead case, the Court of Appeal, Fourth District, Division Three, held in a published opinion, City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, that a ban on medical marijuana dispensaries conflicts with the Medical Marijuana Program Act (Health & Saf. Code, §§ 11362.7–11362.83).

The question presented is whether the Medical Marijuana Program Act requires a city to allow dispensaries to operate at sites where medical marijuana is “collectively or cooperatively . . . cultivate[d].” (Health & Saf. Code, § 11362.775).  This article in the San Francisco Chronicle, and this article, discuss the case in more detail.    

Western States Petroleum Association v. State Board of Equalization, S200475—Review Granted—May 16, 2012.

An association of petroleum producers brought this action against the State Board of Equalization for declaratory relief challenging valuation formulas applied to petroleum refineries. The trial court granted summary judgment for the association.  The Board appealed.  The Court of Appeal, Second District, Division Eight, held in a published decision, Western States Petroleum Assn. v. State Bd. of Equalization (2012) 202 Cal.App.4th 1092, that when appraising industrial or manufacturing property for taxation purposes, the real property and fixtures must be assessed as separate units.

The question presented is whether the trial court’s holding improperly constrains the Board’s ability to perform its constitutional and statutory duties to guide county assessors on appropriate appraisal methodologies by requiring the appraisal of fixtures and real property as separate units despite the fact that the property is sold in the marketplace as a single unit.

Review Denied (with dissenting justices)

None.

Depublished

None. 

State Bar Admission

Garcia on Admission, S202512—Order to Show Cause—May 16, 2012.

The Supreme Court ordered the Committee of Bar Examiners to show cause why Sergio C. Garcia, an undocumented immigrant, should be admitted to the State Bar.  The questions presented include: (1) whether 8 U.S.C. section 1621, subdivision (c), or any other statute, regulation or authority precludes admission of an undocumented immigrant to the State Bar of California; (2) whether any state legislation provides—as specifically authorized by 8 U.S.C. section 1621, subdivision (d)—that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions and, if not, what significance, if any, should be given to the absence of such legislation; (3) whether the issuance of a license to practice law impliedly represents that the licensee may be legally employed as an attorney; (4) the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law; and (5) what, if any, other public policy concerns arise with the admission?

The case has immediately garnered substantial media attention, including from the ABA Journal, The Recorder, the Los Angeles Times, KPCC (Southern California Public Radio), and the San Gabriel Valley Tribune.

This latest round of cuts has resulted in an outcry from all corners of the legal  community.  The Chief Justice issued a statement calling the cuts “‘devastating and disheartening.’”  She noted they “‘will seriously compromise the public’s access to their courts and our ability to provide equal access to justice throughout the state.’”  As reported by KQED, Jon Streeter, president of the State Bar, called the cuts “‘unsustainable.’” Former state senator Joe Dunn, now the State Bar’s executive director, said:  “‘Our state judiciary is being economically starved to death.  We’re at a point where it’s reasonable to ask whether recovery is even possible.’”  And framing the issue even more starkly, San Francisco Superior Court Presiding Judge Katherine Feinstein said, “‘It has reached the point where we are becoming a failed state. . . . When you allow two branches of government to kill the third, we start resembling countries that I don’t think we ever envisioned our state would become.’”

From the Governor’s perspective, further cuts to court funding are preferable to cuts to other public services.  Indeed, the Recorder quotes the Governor’s finance director, Ana Matosantos, as saying the Governor’s plan consciously chooses to use local courts’ cash reserves to help cover the budget shortfall.  As a result, courts with cash reserves will be required to rely on them, while the Administrative Office of the Courts likely will allocate a larger proportion of the annual budget to those courts lacking any significant reserves.  Aside from the obvious problem of soon leaving all California courts without any cash reserves to address future budget cuts and other emergencies, some commentators have suggested the Governor’s plan has another flaw:  it would reward inefficiency by punishing well-managed courts by depriving them of their cash reserves while, at the same time, it disproportionately benefits other, less well-managed courts that lack significant reserves.

The Judicial Council has called an emergency meeting for Thursday morning in Sacramento to discuss the Governor’s revised budget.  One wonders whether the Council might at this point consider a lawsuit by the judicial branch asserting that the executive and legislative branches have a constitutional obligation to adequately fund the courts, and cannot impair the judicial branch’s ability to function by cutting its funding below a certain level.

Review Granted

Martinez v. Brownco Construction, S200944—Review Granted—May 9, 2012.

An injured worker and his wife brought this action against a demolition contractor for negligence and loss of consortium.  Following offers to compromise and a later jury trial, the trial court entered judgment on the jury’s verdict, awarding damages to the worker and his wife and also awarding costs.  Both sides appealed the award of costs.  The question presented is whether the last offer in a series of offers to compromise under Code of Civil Procedure section 998 is operative for purposes of the cost-shifting provisions of section 998, subdivision (c).

The Court of Appeal, Second District, Division One, held in a published opinion, Martinez v. Brownco Const. Co., Inc. (2012) 203 Cal.App.4th 507, that where a plaintiff serves a series of offers to compromise under section 998, each new offer does not extinguish the preceding offer and, therefore, the last offer is not necessarily the operative one for purposes of applying section 998’s cost-shifting provision.

Buzenes v. Nuvell Financial Services, S200376—Review Granted and Held—May 9, 2012.

The plaintiff sued the defendant finance companies after the car she purchased was repossessed.  The Court of Appeal, Second District, Division Five, affirmed the trial court’s order denying the defendants’ petition to compel arbitration on the ground that the arbitration provision at issue is unconscionable and unenforceable.  The question presented is whether the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __, 131 S.Ct.  1740, preempts state law rules invalidating mandatory arbitration provisions in consumer contracts on the ground that they are procedurally and substantively unconscionable.  The Supreme Court granted and held pending its decision in Sanchez v. Valencia Holding Company, S199119, which presents the same issue.

Review Denied (with dissenting justices)

Shoyoye v. County of Los Angeles, S201348—Review Denied [Kennard and Werdegar, JJ., voting for review]—May 9, 2012.

This was an action in which an arrestee sued a county for false imprisonment and violation of the Tom Bane Civil Rights Act, Civil Code section 52.1, alleging he was unlawfully detained in jail.  The trial court entered judgment on a jury verdict for the arrestee and awarded damages.  The county appealed. 

In a published decision, Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, the Second Appellate District, Division Four, affirmed in part and reversed in part.  It held a wrongful detention is not remediable under the Tom Bane Civil Rights Act where the only “threat, intimidation, or coercion,” as required for liability under the statute, is inherent in the constitutional violation—here, the wrongful detention—rather than as an independent act.

Depublished

Marriage of Wahl & Perkins, S200790—Depublished—May 9, 2012.

A former husband filed a motion for sanctions based on his former wife’s conduct with respect to two post-dissolution orders.  The trial court ordered $552,153.28 as a sanction.  The former wife appealed.

The Court of Appeal, Sixth District, held in a published opinion, In re Marriage of Wahl and Perkins (2012) 203 Cal.App.4th 108, that (1) the court was not required to issue a contempt order or judicial declaration before awarding sanctions; (2) the court could award the former husband attorney’s fees incurred in litigation in another state; (3) the award of $552,153.28 in sanctions was not unreasonable; and (4) the former wife’s appeal was frivolous and warranted appellate sanctions.

The Supreme Court denied review and, on its own motion, ordered the Court of Appeal decision depublished.

This year, the court will be working overtime during those last two pre-summer calendars.  Following an unusually heavy calendar last week, the court will hear a total of another 25 arguments — 18 in San Francisco on May 29, 30, and 31, and 7 in Los Angeles on June 5 and 6.  Continuing a trend, most of the cases (19 of the 25) are criminal matters, including 5 automatic death penalty appeals.

The court will hear the following cases (with the issues presented as stated on the court’s website):

Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC:  (1) Is a homeowners association bound by an arbitration provision contained in the covenants, conditions, and restrictions for a common interest development that were executed and recorded prior to the time the association came into existence?  (2) Did the Court of Appeal err by applying the state law doctrine of unconscionability only to the arbitration provision, and not to other provisions in the covenants, conditions and restrictions, in light of federal law prohibiting the application of state law to treat arbitration provisions differently from other provisions of the same agreement?  (See Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265.)

Parks v. MBNA America Bank N.A.:  (1) Is Civil Code section 1748.9, which requires credit card issuers to make certain disclosures on checks issued to cardholders for cash advances from the cardholders’ credit card accounts, preempted by the National Bank Act (12 U.S.C. section 21 et seq.)?  (2) Is 12 Code of Federal Regulations section 7.4008, which was promulgated under the National Bank Act by the Office of the Comptroller of the Currency and which provides that state laws that impair a nationally chartered bank’s non real-estate banking powers are not applicable to nationally chartered banks, a valid regulation?

Leung v. Verdugo Hills Hospital:  Should the common law rule that a release for consideration of one joint tortfeasor operates as a release of the joint and several liability of all joint tortfeasors be abandoned in light of statutory and case law modifications of the joint and several liability rule?

People v. Valdez:  [This is an automatic appeal from a June 1997 judgment of death.  The court's website does not list issues for such appeals.]

People v. Duenas:  [This is an automatic appeal from a January 1999 judgment of death.  The court's website does not list issues for such appeals.]

People v. Gonzales:  [This is an automatic appeal from a January 1998 judgment of death.  The court's website does not list issues for such appeals.]

State of California v. Continental Insurance Co.:  (1) When continuous property damage occurs during the periods of several successive liability policies, is each insurer liable for all damage both during and outside its period up to the amount of the insurer’s policy limits?  (2) If so, is the “stacking” of limits – i.e., obtaining the limits of successive policies – permitted?

In re W.B.:  Is Welfare and Institutions Code section 224.3, which requires tribal notification under the Indian Child Welfare Act (25 U.S.C. section 1901 et seq.) of a juvenile delinquency proceeding (Welf. & Inst. Code, section 602) when a juvenile is charged with an act that would be a crime if committed by an adult, preempted because it expands jurisdiction to proceedings expressly excluded from the Act?

People v. Runyan:  Did the trial court err in awarding restitution to a manslaughter victim’s estate as a “direct victim” of the crime within the meaning of Penal Code section 1202.4, subdivision (k)(2)?

People v. Turnage:  (1) Does Penal Code, section 148.1, subdivision (d), violate equal protection principles because a violation is punishable as an alternative felony-misdemeanor without a finding that a person was placed in sustained fear? (See Pen. Code, section 11418.1.)  (2) If so, what is the proper remedy?

In re Bacigalupo:   The court issued an order to show cause limited to claims that the prosecution withheld potentially mitigating evidence that may have affected the penalty determination in a death penalty case.

People v. McKinzie:  [This is an automatic appeal from an August 1999 judgment of death.  The court's website does not list issues for such appeals.]

Coito v. Superior Court:  Is the statement of a witness that is taken in writing or otherwise recorded verbatim by an attorney or the attorney’s representative entitled to the protection of the California work product privilege?

People v. Aranda:  Is the trial court’s failure to give a standard reasonable doubt instruction (CALJIC No. 2.90) reversible per se or is such failure subject to harmless error review?  If so, should harmless error be assessed under People v. Watson (1956) 46 Cal.2d 818, or Chapman v. California (1967) 386 U.S. 18?

People v. Sauceda-Contreras:  (1) After defendant had been given his Miranda rights, did his statement – “If you can bring me a lawyer . . . that way I can tell you everything that I know and everything that I need to tell you and someone to represent me” – constitute a clear invocation of his right to counsel that required questioning to cease and did not permit the interrogating officers to attempt to clarify what defendant meant?  (2) Was any error in the admission of defendant’s subsequent statements harmless beyond a reasonable doubt?

People v. Caballero:  Does a sentence of 110 years to life for a juvenile convicted of committing non-homicide offenses constitute cruel and unusual punishment under the Eighth Amendment on the ground it is the functional equivalent of a life sentence without the possibility of parole?  (See Graham v. Florida (2010) 560 U.S. __ , 130 S.Ct. 2011, 176 L.Ed.2d 825.)

People v. Gonzalez:  (1) Was the evidence sufficient to convict defendant of first degree provocative act murder?  (2) Was the instructional error in failing to tell jurors that defendant had to personally premeditate an attempted murder in order to be guilty of first degree provocative act murder harmless beyond a reasonable doubt?

People v. Houston:  [This is an automatic appeal from a September 1993 judgment of death.  The court's website does not list issues for such appeals.]

In re Greg F.:  Can a juvenile court dismiss a juvenile wardship petition in the interests of justice and commit a juvenile ward to the Department of Juvenile Justice on the basis of a prior sustained petition, even though Welfare and Institutions Code section 733 prohibits such a commitment of a juvenile ward unless “the most recent offense alleged in any petition and admitted or found to be true by the court” is a offense specified in subdivision (c) of that section and the offense alleged in the dismissed petition was not one of those specified offenses?

People v. Lara:  Does a trial court have discretion to dismiss or strike a prior serious felony conviction under Penal Code section 1385 in order to award the defendant additional presentence credits under Penal Code section 4019?

LeFiell Manufacturing Co. v. Superior Court:  Can the spouse of an injured worker claim damages for loss of consortium in an action at law brought by the injured worker under Labor Code section 4558 for damages allegedly caused by an employer’s knowing removal of or failure to install a safety guard on a power press?

People v. Lopez:  (1) Was defendant denied his right of confrontation under the Sixth Amendment when the trial court admitted into evidence the results of blood-alcohol level tests and a report prepared by a criminalist who did not testify at trial?  (2) Was the error prejudicial in light of the testimony of a supervising criminalist about testing procedures at the lab?  (3) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court’s decision in People v. Geier (2007) 41 Cal.4th 555?

People v. Dungo:  (1) Was defendant denied his right of confrontation under the Sixth Amendment when one forensic pathologist testified to the manner and cause of death in a murder case based upon an autopsy report prepared by another pathologist?  (2) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court’s decision in People v. Geier (2007) 41 Cal.4th 555?

People v. Rutterschmidt:  (1) Was defendant denied her right of confrontation under the Sixth Amendment when a supervising criminalist testified as to the result of drug tests and the report prepared by another criminalist?  (2) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court’s decision in People v. Geier (2007) 41 Cal.4th 555?

In re Coley:  Does defendant’s sentence of 25 years to life under the three strikes law for failing to update his sex offender registration within five days of his birthday constitute cruel and unusual punishment?