Legal News and Appellate Tips

Here are some legal trends and trivia from this week (links available at the full post):

• Justice Jackson, still in first year on SCOTUS, pens solo dissent in labor case Glacier Northwest v. International Brotherhood of Teamsters. First time a first-termer has penned a solo dissent since Justice Thomas in 1991.

• Manson follower Leslie Van Houten, who took part in murders, is entitled to parole after spending more than 50 years behind bars, a California appeals court ruled, reversing Gov. Gavin Newsom’s decision to deny her release.

• Court of Appeal holds Ventura could get rid of statute of Father Serra, rejecting historical and environmental challenges. (MetNews) (The court may be right. But for the reasons I wrote in an essay a few years ago, “Why did Constantinople get the works? That’s nobody’s business but…”, the city’s decision is unfortunate.)

• Cal. Supreme Court announces it will hear argument on June 27 on the high-profile, long-pending voting rights case, Pico Neighborhood Association v. City of Santa Monica, involving the issue: “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?”

• Ninth Circuit says order disqualifying all prosecutors in the district is unjustified as an “extreme remedy” where only one AUSA’s conduct was questioned.

• No right for a criminal defendant to be present at the jury verdict, despite clear constitutional mandate, Court of Appeal holds.

• Cal. Supreme Court scores high in diversity study.

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension.

In Aaronoff v. Olson, the Second District, Division Two, “exercises[d] its discretion under rule 8.68, California Rules of Court” to partially grant a 60-day request to file a reply brief. The court granted 46 days instead.

On the plaintiff’s original writ petition, the Supreme Court in Aaronoff v. Court of Appeal (Olson) issued an alternative writ directing Division Two “(i) to vacate its . . . order . . . and to issue a new order giving effect to the parties’ stipulated extension as filed . . . or (ii) in the alternative, to show cause before this court why it has not done so.”

The same day, the Court of Appeal changed the reply brief due date to December 16.

The Upshot

When the parties to an appeal stipulate to a briefing extension provided under California Rules of Court, rule 8.212, “[t]he reviewing court may not shorten a stipulated extension.”

Thanks to David Ettinger for reporting on this case. See his post for a more detailed legal analysis of extensions under rule 8.212.

Disclaimer: I joined an amici curiae brief filed with the Supreme Court on December 5, urging the Court to grant the requested relief.

Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.”

In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation.” Ettinger notes that then-Gov. Brown fumed, “Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is.”

Gov. Newsom, on the other hand, has a nearly perfect record on his clemency recommendation requests. Why the change?

Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. The Supreme Court recently amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it. Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

When Governor Gavin Newsom selected Justice Patricia Guerrero as the new Chief Justice, he also “appointed” Judge Kelli Evans to fill the empty seat. But there was some debate about […]

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins Jeff Lewis and me to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a new Supreme Court justice when the state constitution says he needs to “nominate”?

David’s critical coverage of Gov. Newsom’s decision to “appoint” rather than “nominate” drew a phone call from the governor’s office, which he discusses.

We also discuss:

• “Taking one for the team”: how the CJ described her decision to write some of the Court’s more controversial opinions.

• “We don’t need to speak so broadly”: how the CJ described her approach to writing judicial opinions.

• When Gov. Jerry Brown got frustrated with the Supreme Court. Today, the Court grants all of Gov. Newsom’s clemency requests, but it denied many of Gov. Brown’s. Why? Turns out, governors get just as frustrated at summary denials as the rest of us do: “Read the ones who were approved and read the ones who were disapproved,” Gov. Brown challenged, “and you tell me what the rule is.”

In a bizarre ruling earlier this year, the Court of Appeal held that bumble bees are fish, at least for purposes of the California Endangered Species Act. The California Supreme Court was asked to review the result, and the Supreme Court denied review.

But the Supreme Court does not want you to think that that means it agrees that bees are fish. Or vice versa. The Chief Justice specially concurred in the denial of review to explain that denials of review are perfectly enigmatic: it could mean the Court thinks the result was bosh, or that it was brilliant, or that it has no opinion whatsoever.

So don’t read anything in to it.

The California Supreme Court will review a surprising appellate court holding from earlier this year that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months before finally moving to compel arbitration.

The majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 78 Cal.App.5th 470 found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.

The dissent would have found a waiver because “all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.”

David Ettinger notes that the opinion was filed less than two weeks before the U.S. Supreme Court held prejudice to the other side is not essential to finding an arbitration waiver in federal courts. (Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708.)

Blog Note: The Quach opinion was originally unpublished until I filed an amicus request for publication.

What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, **employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead.

But the effect of Viking River may be short-lived. Eric notes that the California Supreme Court may be taking the cue in Justice Sotomayor’s concurrence in granting review in another PAGA case in Adolph v. Uber Technologies, Inc.

Eric also shares his experiences litigating in the California Supreme Court, some other interesting employment cases, and the Dr. Sally Ride Memorial Highway.

CEB has republished my article, “Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases,” about the recent decision in Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312.

Siry held that the remedies under Penal Code section 496(c) — treble damages and attorney fees — are indeed available in business tort cases that fit the description of receipt of stolen property.

This means that many fraud, breach of fiduciary duty, and even breaches of contracts and loans, could carry these steep penalties. These are powerful remedies, and their application to these relatively commonplace lawsuits is now specifically guaranteed by the Supreme Court.

Several appellate courts had declined to extend these remedies to garden-variety business-tort cases on policy grounds. The Supreme Court shared these concerns, but held the language of the statute indicated this was the intent of the legislature.

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

One problem: courts really don’t like section 496. They worry that lawyers will overuse it and turn every garden-variety loan or business-tort case into a civil-theft case. So there arose a split of authority, with some cases enforcing section 496, and others refusing to enforce it.

Breaking the split, the California Supreme Court kept this powerful tool intact. In Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312, the Court held the civil-theft remedies under section 496 applied to a case involving diversion of partnership cash.

But the Court did not throw open the floodgates. The Court noted that the concerns expressed by section 496 naysayers do “give pause.” And Justice Groban, joined by Justice Kruger, concurred to note they do not read the majority as endorsing civil-theft penalties in “most consumer or commercial transactions.”

If you have a civil case involving fraud that amounts to something akin to theft by false pretenses, consider seeking remedies under Penal Code section 496(c). Do not get too creative. But under Siry Investments, policy concerns are no longer a valid basis to refuse to enforce section 496. **