appellate webinar ca supreme court 4-28-2015
TRANSCRIPT
The California Supreme CourtWhat to Expect in 2015Kirk C. JenkinsHall R. MarstonMichael M. WalshSedgwick LLP
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The Supreme Court Data Library
• The Superior Court (county of origin; trial judge)
• The Court of Appeal (District & division; Decision coding; dissents; publication; jurisdiction)
• The Supreme Court (Area of the law; time under submission; result and vote; length of opinions; number of amici; Justice-by-Justice data, including vote, decision coding, opinion joined, recusals; Counsel arguing)
633 2000 - 2014
CIVIL CASES
43 DATA POINTS PER CASE
34,000+ DATA POINTS
Reversal Rates, 2010-2014
Overall Reversal Rate2010 61.1
2011 85.7
2012 76.0
2013 51.7
2014 57.9
Reversal Rates – LA’s 2nd District
2010 2011 2012 2013 2014Division 1 33.3 75 83.3 62.5 66.7
Division 2 25 0 0 100 100
Division 3 66.7 70 57.1 71.4 42.9
Division 4 100 100 83.3 85.7 66.7
Division 5 50 71.4 87.5 100 66.7
Division 6 75 75 50 100 100
Division 7 66.7 83.3 100 75 0
Division 8 66.7 71.4 100 50 50
Reversal Rates – SF’s 1st District
2010 2011 2012 2013 2014Division 1 50 0 0 0 0
Division 2 50 50 50 0 0
Division 3 75 50 50 0 0
Division 4 50 57.1 57.1 60 75
Division 5 66.7 66.7 75 100 50
Reversal Rates – the rest of the state
2010 2011 2012 2013 20143rd District 71.4 88.9 100 100 1004th, Div. 1 58.3 71.4 66.67 83.3 754th, Div. 2 75 100 50 25 04th, Div. 3 25 44.4 87.5 100 1005th District 100 0 100 50 606th District 63.6 58.3 60 71.4 80
Does the area of the law matter – Cases accepted for review, 2010-2014
Defendant Wins at Appellate Court
Plaintiff Wins at Appellate Court
Tort 52.63 47.47
Govt./Administrative 50.00 50.00
Employment 59.09 40.91
Civil Procedure 40.00 60.00
Constitutional 57.14 42.86
Insurance 40.00 60.00
Commercial/Consumer 55.56 44.44
Arbitration 62.50 37.50
Reversal Rates by area of the law, 2010-2014
Defense Wins Reversed
Plaintiff Wins Reversed
Tort 70.00 77.78
Govt./Administrative 50.00 62.50
Employment 46.15 77.78
Civil Procedure 87.50 33.33
Constitutional Law 75.00 33.33
Insurance 50.00 66.67
Commercial/Consumer 100.00 75.00
Arbitration 100.00 100.00
Time Under Submission, 2010-2014
Unanimous Decisions Non-Unanimous Decisions2010 58.42 90.56
2011 58.32 70.75
2012 64.05 84.29
2013 61.08 100.43
2014 62.27 85.83
The Center, 2010-2014 (Non-Unanimous Civil Cases)
2010 2011 2012 2013 2014Corrigan/Cantil-Sakauye
80.00 83.33 90.00 83.33
Corrigan/Chin 91.67 91.30 83.33 90.00 83.33
Cantil-Sakauye/Chin 80.00 83.33 76.47 77.78
The Fourth Vote, 2010-2014
2010 2011 2012 2013 2014Corrigan/Liu 100 88.89 73.33 68.42
Werdegar/Cantil-Sakauye
80 75 89.47 65
Werdegar/Liu 100 88.89 87.5 75
Chin/Liu 100 66.67 57.14 50
Cantil-Sakauye/Liu 50 66.67 75 75
Corrigan/Werdegar 43.48 54.55 52.17 66.67 47.37
Werdegar/Chin 43.48 54.55 52.17 65 38.39
Bristol-Myers Squibb Co. v. Superior CourtCase no. S221038Rev. granted: 11/19/2014
Factual Summary
Plavix product liability against manufacturer
Non-California plaintiffs come from 32 different states; all prescribed Plavix by out of state physicians; all bought, consumed and were injured outside California.
8SEPARATE COMPLAINTS FILED
84 CALIFORNIA PLAINTIFFS
13%
575 NON-CALIFORNIA PLAINTIFFS
87%
BMS presence in California
1.3 %
2501.1
of its U.S. employees
sales representatives
of U.S. sales revenue comes from California.
%
Procedural History
Filed in state court but because California distributor named case was not removable.
Trial court denied motion to quash service of summons finding general jurisdiction.
Court of Appeal reversed, on writ review, finding no general jurisdiction under Daimler, but affirmed on other grounds: there was specific jurisdiction over the non-California plaintiffs because of the California nexus between Plavix and BMS.
Petition for review to Supreme Court granted: issues presented:
for the non-California plaintiffs whether there was general jurisdiction over BMS with respect to Plavix claims, and whether there was specific jurisdiction.
Why is this a big deal?
Ability of experienced products liability counsel to recruit plaintiffs/clients concentrates tremendous clout in hands of few.
Plaintiffs often resist federal forum; defendants frequently prefer federal forum.
Through naming a local defendant, and filing for some local plaintiffs, plaintiffs’ counsel can defeat removal and shop for a forum with the greatest perceived advantage, regardless of jurisdictional limitation in the context of any multi-national corporation with sales in the forum state.
Poses a huge burden on under-funded courts in California, where over 85% of plaintiffs are foreign and for whom California has no interest in resolving their disputes.
What will the Supreme Court do?
On general jurisdiction, Daimler—where is the corporation “at home”—appears to foreclose the exercise of jurisdiction.
Recent changes to the make-up of the court suggest a shift to a more liberal and hence plaintiff-friendly jurisprudence.
However, the financial pressures under which the California courts operation are profound, slowing down average rates of dispositions in some counties by years.
Carnac says “No finding of specific jurisdiction over non-California plaintiffs (the CAFA issue is looming in the background).”
AsbestosKesner v. Superior Court, S219534
(opinion below 226 Cal.App.4th 251)Haver v. BNSF Railway Co., S219919
(opinion below 226 Cal.App.4th 1104)Webb v. Special Electric Co., Inc., S209927
(opinion below 214 Cal.App.4th 595)
Asbestos remains a hot topic
After decades of litigation and 12 years after the last U.S. mine closed, the scope of asbestos liability is still being defined.
Kesner and Haver• Does an employer who uses or manufactures asbestos-
containing products owe a duty to employee’s family?
Webb• Can a supplier of raw asbestos be liable in tort for a failure to
warn?
Each of these cases is fully briefed and waiting for oral argument.
Does an asbestos using employer owe a duty of care to worker’s family members? Kesner v. Superior Court – yes, under a products liability
theory if the employer produces asbestos products Haver v. BNSF Railway Co. – no, if the employer only uses
asbestos products, i.e. a premises liability theory Other Courts of Appeal have addressed the duty for a
secondary toxic exposure
• The consensus: A mere premises owner has no such duty (Campbell, Haver, Oddone, Beckering), but the manufacturer of a toxic product (like asbestos) might (Kesner, Bettencourt)
• Echoes of workers compensation and dual capacity (Bell)
Determining duty re secondary exposure; the major Rowland v. Christian factorsWhen charting new ground on duty, the courts invoke Rowland on general principles establishing duty:
(1) foreseeability of harm to the plaintiff; (2) the degree of certainty plaintiff suffered injury; (3) the closeness of the connection between the
defendant’s conduct and the injury suffered; (4) the moral blame for defendant’s conduct; (5) the policy of preventing future harm; (6) the burden on defendant and consequences to the
community of imposing such a duty; and (7) the availability, cost, and the prevalence of insurance for
the risk involved.
Webb – Does a raw asbestos supplier have a duty to warn individual users? What about sophisticated intermediaries?• A divided Webb panel disregards this, finding a question of
fact as to “whether reasonable efforts to warn downstream users could have been undertaken.”
Warning what they already know about?• Webb also found a potential issue in whether the raw
asbestos supplier provided inadequate warnings to a sophisticated intermediary who admittedly knew about asbestos.
Asbestos is a “defective product”• This prevents a raw suppler from relying on the bulk
supplier/component parts doctrine.
Webb - Sophisticated or Learned Intermediary Doctrine Will the Supreme Court finally weigh in?• While the Supreme Court has affirmed the Sophisticated or
Learned Intermediary Doctrine for medical products, it has yet to opine on this doctrine in other contexts.
The Court has a potential way to back out.• There is a procedural issue in Webb over the trial court
turning a pre-trial motion for non-suit into a JNOV without sufficient notice to plaintiff, so the Supreme Court could dodge the sophisticated intermediary issue.
Flores v. Presbyterian Intercommunity HospitalCase no. S209836Rev. granted: 5/22/13
Factual summary
Plaintiff/patient sued defendant hospital for general negligence and premises liability
Plaintiff alleged she was injured when her bed rail collapsed, causing her to fall to the floor
Procedural history
Hospital successfully demurred on statute of limitations grounds
Trial court held that ensuring that a patient’s bed rails are properly adjusted and latched arises from a duty stemming from professional services.
Court of Appeal reversed: Because the patient alleged that the bed rail collapsed it was ordinary negligence since there was a duty to use reasonable care in maintenance and inspection of equipment.
2yrs LIMITATIONS PERIOD FOR PERSONAL INJURY DUE TO NEGLIGENCE
1yr LIMITATIONS PERIOD FOR PROFESSIONAL MEDICAL MALPRACTICE
Why Supreme Court granted review? The intermediate appellate opinions have been in conflict
since 1975 (there were at least a half a dozen published cases on the subject since).
Flores followed an intermediate appellate opinion written before enactment of legislation to limit malpractice liability.
Outcome will trigger, in all likelihood, a different type of liability coverage, thereby defeating the legislative intent of limiting healthcare provider liability (resulting in higher costs to patients and premium payers).
Outcome also triggers a different, unlimited, measure of damages for pain and suffering.
What will Supreme Court do?
Amici participation from consumer groups and hospitals. New make-up of the Court may indicate why review was
granted now rather than on earlier opinions. The Court of Appeal opinion hinged on the characterization of
the facts, masking the fundamental issue: when a hospital is treating a patient, can there be a dividing line between professional services and a general, nonprofessional duty of care?
REVERSED!
ADR Issues continue to occupy the Court
Sanchez v. Valencia Holding Co. LLC, S199119 (opinion below 201 Cal.App.4th 74)
Sandquist v. Lebo Automotive, Inc., S220812 (opinion below 228 Cal.App.4th 65)
Gaines v. Fidelity National Title Ins. Co., S215990 (opinion below 222 Cal.App.4th 25)
ADR Issues
Sanchez – the Supreme Court returns to FAA PreemptionFAA Preemption and the California Supreme Court before Sanchez Sonic I (2011) and Sonic II (2013)—Sonic I held that an
administrative hearing could not be waived in an employment agreement. In Concepcion (2011), the U.S. Supreme Court found the FAA imposed a broad preemption. Sonic II then reversed, but held the waiver could be struck as unconscionable on a case-by-case basis.
Iskanian (2014)— Class action waivers in employment agreements are enforceable under Concepcion, but the Supreme Court held that representative actions under the Private Attorney General Act could not be waived.
Sanchez – the Supreme Court returns to FAA Preemption (cont.)
Sanchez v. Valencia Holding Co. LLC— Addresses whether the FAA, under Concepcion, preempts state rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable.
Sanchez Oral Argument Set for May 5, 2015, so we can expect a decision by August 2015.
How far does FAA Preemption go?
Sonic II relied on the general contract principle of unconscionability to strike waivers in arbitration agreements, avoiding Concepcion’s preemption of laws that specifically burden arbitration.
In Sanchez the Supreme Court requested additional briefing on when a contract term is unconscionable; and the Court of Appeal found the arbitration provisions both substantively and procedurally unconscionable.
The question now is probably scope – will the Supreme Court require a more rigorous factual showing of unconscionability, or establish broad findings that are easily applied to pro forma consumer purchase agreements?
Sandquist – Who decides whether class arbitration is waived? The Arbitrator: The arbitrator decides procedural issues,
including whether a class action is available. This is the majority rule, following Bazzle, a plurality U.S.S.C. decision.
The Court: Availability of class actions decides whose claims will be arbitrated, which should be decided by the court.
The Courts of Appeal are now split on this issue; Sandquist supports majority rule, and a grant and hold (Network Capital) supports the minority.
Sandquist is fully briefed and waiting for argument.
Gaines – Effect of mediation stay on 5-year trial deadline?What constitutes a “partial stay”?
• In Bruns (2011), the Supreme Court held that a partial stay, (e.g., a discovery stay), does not toll the 5-year deadline.• In Gaines, the court stayed all litigation but for responding
to pending discovery requests, pending mediation. Why is the Court addressing a fact-specific question over implementing its recent Bruns ruling?
The issue in review focused on a stay for purposes of mediation, so it appears the Court may be reconsidering Bruns to better support mediation efforts.
Cordova v. City of Los AngelesSupreme Court case no.: 208130Rev. granted: 3/20/13
Factual summary
Wrongful death action against the City of Los Angeles. Decedents’ car, driven by an unlicensed driver, was traveling at
68 miles per hour on a surface street in the lane closest to the center meridian, where the speed limit was 35 miles per hour.
Another driver, traveling at 66 miles per hour in the next lane, side-swiped the decedents’ car, forcing it onto the meridian where it crashed into a large tree.
The allegation was that the roadway was defectively designed and maintained because it did not have a “clear zone,” which is an area that must be unobstructed to allow drivers to remain on the roadway.
Procedural history
City moves for summary judgment. • The speed limit was set by a survey showing 85% of the
vehicles moved at roughly that speed. • An expert opined that the design conformed to the City’s
Bureau of Engineering plans. • The tree, although not part of the design, was readily
apparent to attentive drivers. • “Clear zone” standards do not apply in urban setting,
primarily due to the relatively slow rate of speed of non-negligent traffic. • The tree was an appropriate distance from the curb, and
provided other benefits.
Procedural history
Plaintiffs’ opposition:
• The tree had scars, indicating prior impacts with vehicles. Trees are the second most commonly hit fixed objects on roadways.
• Highway Patrol reported 142 accidents in that stretch of road, 32 were side-swipe accidents, resulting in four other fatalities.
• According to national standards, objects of 4-6 inches should not be placed in “clear zones.” In planting trees on meridians, City does not consider effect of potential impact with vehicles.
• Thus, the accident was foreseeable.
Procedural history
Trial court granted the motion: a tree was not a dangerous condition, the accident was caused by the other driver’s criminal conduct, and “clear zones” were bad policy. The court excluded much of plaintiffs’ evidence.
Court of Appeal opinion:
• Affirmed.
• The tree was not a dangerous condition as a matter of law because the tree did not cause the other driver’s negligence.
Issue on which Supreme Court granted review:
• May a government entity be held liable if a dangerous condition of public property existed and caused the injuries plaintiffs suffered in an accident, but did not cause the third party conduct that led to the accident?
Lee v. Hanley, S220775 (opinion below 227 Cal.App.4th 1295)
Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C., S211645 (opinion below 216 Cal.App.4th 1444)
Attorney’s Fees
Lee – When is an attorney performing “professional services”? C.C.P. § 340.6: 1 year to bring an action, other
than for fraud, “arising in the performance of professional services”
Previous cases have applied § 340.6 to disputes over unconscionable fees (Levin) the failure to distribute settlement funds (Prakashpalan), and against non-clients in malicious prosecution actions (Yee, but see Roger Cleveland).
Note: the legislative history would possibly limit this to only malpractice actions.
Lee: “the performance of professional services” does not include converting a client’s money after the case is over.
The matter is fully briefed and waiting for oral argument.
Hartford Casualty Ins. Co. – Can an insurer get reimbursement from independent counsel? The court upheld orders (1) requiring Hartford to
pay independent counsel fees, (2) barring reliance on CC §2860, and (3) denying motion to disqualify counsel.
Hartford sought reimbursement of excessive fees directly from counsel, alleging contract and quasi-contract theories.
Held: Hartford only has right or reimbursement from insured, but it has no relationship with independent counsel on which to base a claim.
Scope of Bass? This was set for oral argument on May 5, but is
being rescheduled.
Note: Court of Appeal expressly excluded issue of whether a direct suit was allowable for a claim of fraudulent billing practices.
State Dept. of State Hospitals v. Superior CourtSupreme Court case no.: S215132Rev. granted: 2/11/14
Factual summary
Wrongful death action arising from murder of plaintiff’s sister by recently released inmate, incarcerated for rape.
Four days after his release from prison, the inmate raped and murdered plaintiff’s 15 year old sister.
Plaintiff alleged defendants breached a mandatory duty by failing to have the inmate fully evaluated by two psychiatrists or psychologist as required by California’s Sexually Violent Predators Act.
Plaintiff alleged that had the inmate not been unlawfully released, her sister would have been alive today.
Procedural history
Defendants—State Dept. of State Hospitals, and former directors of agency—demurred on grounds that the complaint failed to state causes of action against them because of sovereign immunity for failure to perform discretionary acts.
Trial court overruled the demurrer. Defendants sought a writ of mandate to compel trial court to
vacate ruling. Writ granted by Court of Appeal because of significant legal
issues concerning sovereign immunity. Court of Appeal held: (1) Defendants were not immune
because duty to properly examine inmate was mandatory not discretionary, but (2) Plaintiff could not as a matter of law prove causation.
Why was review granted?
Questions presented: (1) Did the State perform a full evaluation of the inmate as required by statute? (2) Did the Court of Appeal err as matter of law in holding plaintiff could not prove causation?
The petition for review claimed that thousands of inmates convicted of sexual crimes have been released on only a “file” review, rather than a full evaluation including “in person” evaluations. The Court of Appeal rejected this as a basis of liability.
Petition also cited conflicts of authority on “full evaluation” point.
No amicus participation.
What will Supreme Court do?
A Supreme Court opinion—Landeros v. Flood—held that causation in a case where defendants failed to report suspected child abuse under a California statute could not be determined as a matter of law.
Given swing to the left on the Court, reversal is expected. Case was argued in early March, 2015; expect decision by
early June.
Shaw v. Superior Court, S221530 (opinion below 229 Cal.App.4th 12)
deSaulles v. Community Hosp. of the Monterey Peninsula, S219236 (opinion below 225 Cal.App.4th 1427)
Procedural Issues
Shaw – Can a right to a jury trial be decided by writ of mandate? The trial court ruled there was no right to a jury trial, but
responding to a writ petition, the appellate court disagreed. In Nessbit (1931), the Supreme Court ruled that mandate was
not justified and that appeal was the proper means to test the right to a jury.
A later appellate decision, Byram, reached a different result, apparently unaware of Nessbit. Shaw agreed and tried to side step Nessbit on its facts.
Apparently, the Court is reconsidering Nessbit, and may have broader application to the proper basis for a writ petition.
This case is fully briefed and waiting for oral argument.
deSaulles – When a defendant pays for a dismissal, who is the prevailing party? Defendant: (1) won summary adjudication on one claim, (2)
paid for the dismissal with prejudice of two claims, and (3) obtained a judgment for the rest, which noted the settlement and stating that plaintiff shall take nothing.
Who is the prevailing party under C.C.P. § 1032?
• A defendant in whose favor a dismissal is entered.
• A defendant where neither plaintiff nor defendant obtains any relief.
• A defendant when plaintiff does not recover any relief against that defendant.
• The party with a net monetary recovery.
deSaulles finds plaintiff is the prevailing party The trial court found neither was entitled to mandatory costs
and awarded discretionary costs to defendant. deSaulles found that the settlement, entered on the eve of
trial and in open court was “accomplished through the legal process” and therefore counted as a “net monetary recovery.”
• Conflict with Chinn, which held that settlement monies cannot be considered as part of a net recovery.
deSaulles also found defendant was not entitled to costs because (1) the judgment was not a dismissal, (2) settlement proceeds were relief plaintiff obtained against defendant.
This case is fully briefed and waiting for oral argument.
Solus Industrial Innovation, LLC v. Superior CourtSupreme Court case no.: S217651Rev. granted: 1/14/15
Factual summary
Solus, a plastics manufacturer, installed a water heater intended for residential use which exploded killing two workers.
Cal/OSHA found the heater exploded because of a failed safety valve and absence of other safety features due to manipulation and misuse.
Cal/OSHA referred matter to district attorney who filed criminal and civil charges.
The civil charges were brought under the state unfair competition laws and sought civil penalties in an amount of up to $2500/day per employee for a period of roughly 18 months (about $2.74 million). Penalties under the state regulatory scheme would have been roughly $100,000.
Procedural history
Trial court overruled Solus’ demurrer, but certified the question for intermediate review.
Court of Appeal original denied Solus’ petition for a writ of mandate, but was directed by Supreme Court to consider petition on the merits.
Court of Appeal held in a published opinion that the civil action was preempted by the federal OSHA statutory scheme.
Writ of mandate issued directing trial court to sustain demurrer.
Second petition for review to Supreme Court granted on question of whether federal law preempts the district attorney’s civil action.
The preemption issue
Under the Supremacy Clause, the federal government has power to preempt state law concerning matters within the authority of Congress.
Preemption is either explicit or implied (where it is clear Congress intended to occupy the whole filed by comprehensive legislation, or where compliance with both federal and state requirements is impossible, or where state law obstructs accomplishment of Congress’ purposes).
Under federal OSHA, Congress directed the Secretary of Labor to set mandatory standards for occupational safety and health applicable to all businesses affecting interstate commerce.
The preemption issue (cont.)
• But, there are two exceptions: (1) Federal OSHA does not supersede any state worker’s compensation law; and (2) A State may submit a plan for the development and enforcement of state standards. Those standards must be at least as effective of
corresponding federal standards, and The Secretary must approve the state plan and standards
(unless local conditions justify exceptions from the federal standards).
Why did Supreme Court grant review? California’s unfair competition law was enacted after the
Secretary approved California’s plan. Thus, there has never been Secretary approval of using the
UCL as an enforcement mechanism for state-promulgated safety regulations.
Unlike other California Supreme Court preemption cases, OSHA permits state regulations only with approval, thus no independent regulations (such as UCL enforcement) can be established without Secretary approval.
Important state rights issues, important financial consequences, and possibly one of the earliest indication that the new make-up of the Supreme Court is expressing itself and its priorities.
Sedgwick’s Appellate Task Force
California
Hall R. MarstonDouglas L. CollodelMichael M. WalshMatthew A. Reed
S. Vance Wittie
Texas
Kirk C. Jenkins (also San Francisco)
Agelo L. Reppas
Illinois
Robert C. WeillErin E. Dardis
Florida
Washington D.C.
Peter C. Condron Aaron F. Mandel
New York
Questions?
Kirk C. [email protected]: @KirkCJenkinsOne N. Wacker Drive, #4200, Chicago, IL 60606(312) 641-9050
Hall R. [email protected]
Michael M. [email protected] S. Figueroa, 19th Floor, Los Angeles, CA 90017(213) 426-6900
Appellate StrategistIllinois Supreme Court Review
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