Appeals and Writs

• Jurisdiction: California,United States
• Author: By Paul Killion, Katy Graham, Glen Danas, Greg Wolff and Dean Bochner
• Citation: Vol. 2018
• Publication year: 2018

Appeals and Writs

By Paul Killion, Katy Graham, Glen Danas, Greg Wolff and Dean Bochner

California Supreme Court Practice and Procedure

Vacancy on Court for Entire Term

The most interesting aspect of the California Supreme Court's 2017-2018 term is how often the justices agreed in civil cases.

The 2017-2018 term was the first time there was a vacancy on the court for an entire term. Justice Werdegar retired on August 31, 2017, at the end of the previous term, and Governor Brown appointed Joshua Groban to replace her on November 14, 2018, after the 2017-2018 term had ended. Thus, each case on that term's docket was decided by a panel that included a Court of Appeal justice sitting pro tem.

The pro tem's vote altered the outcome of only one civil case and, even then, his vote affected only the second of the Court's two holdings. In T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, the Court agreed unanimously "that a brand-name drug manufacturer's duty to warn extends to consumers of a generic bioequivalent," and split only on the second holding that the brand-name manufacturer's liability does not automatically terminate when it transfers its rights in the drug to a successor manufacturer. (Id. at p. 156.) Thus, the court decided only civil cases in which at least four of the six permanent justices agreed on the primary holding. In 30 of those 39 civil cases, the decision was unanimous. Five more were decided by a 6-to-1 vote, and the separate opinions in those cases were concurrences. Therefore, the Supreme Court agreed on the major points in nearly every civil case decided last term.

Significant Cases

Among the significant cases decided by California's high court were the following:

Hernandez v. Restoration Hardware, Inc.¹ held that an unnamed class member is not an aggrieved party of record under Code of Civil Procedure section 902 with the right to appeal the class action judgment and attorney fees award. To obtain the right to challenge the judgment, the unnamed class member must either move to intervene in the action before the judgment is entered or file a motion to vacate the judgment after it is entered; appearing at a fairness hearing and objecting is not enough.

Dynamex Operations W. v. Superior Court² sought to determine the applicable test for assessing whether a worker is an employee under the wage orders, and thus entitled to various protections like overtime, minimum wages, and meal and rest breaks, or instead is an independent contractor not entitled to those statutory protections. For almost 30 years, courts in California had distinguished employees from independent contractors by applying the Borello test — a multifactor test based primarily upon a company's "right to control" the worker, which often resulted in a worker being deemed an independent contractor. In Dynamex, the California Supreme Court unanimously abandoned the Borello standard in favor of the "ABC Test" (borrowed from the Massachusetts high court) under which a worker is presumptively an employee and is properly considered an independent contractor only if the company hiring the worker establishes all of the following: (A) the worker is free from the control and direction of the hiring company "in connection with the performance of the work, both under the contract for the performance of the work and in fact"; (B) "the worker performs work that is outside the usual course of the hiring company's business"; and (C) the worker is "customarily engaged in an independently established trade, occupation, or business of the same nature" as the work performed for the hiring entity. The Court noted specifically that a failure to meet any one of the three prongs under the ABC test is sufficient to establish that a worker is an "employee," a considerably higher hurdle than the Borello standard.

Regents of University of California v. Superior Court ³ held that the university owed a duty to protect students from foreseeable violent acts committed by fellow students during curricular activities. Upon learning that a student had reported auditory hallucinations and paranoid thoughts and complained of being harassed by other students, the university attempted to provide mental health treatment. Eventually, the student stabbed a fellow student during a chemistry lab, causing severe injuries. Citing the unique nature of the college environment, the court held that a university has a special relationship with its enrolled students "while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services."⁴ A limited duty to protect students from the violent acts of a fellow student arises if "a reasonable university could foresee that its negligent failure to control a potentially violent student, or to warn students who were foreseeable targets of his ire, could result in harm to one of those students.⁵ Whether a particular student "posed a foreseeable risk of violence is a case-specific question, to be examined in light of all of the surrounding circumstances."⁶

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Troester v. Starbucks Corp.⁷ held that the de minimis doctrine, a rule applicable under the Fair Labor Standards Act, does not apply under the California Labor Code. The de minimis doctrine, the Court noted, is an application of the maxim de minimis non curat lex, which means "[t]he law does not concern itself with trifles." Under the de minimis doctrine, in determining whether a small amount of time worked off the clock is compensable, a court considers (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work. The employer, Starbucks, had succeeded in dismissing the class action suit on summary judgment in the trial court, by invoking the doctrine and arguing that the plaintiff's off-the-clock work, which totaled about four to 10 minutes per shift, was too small and difficult to matter to be com-pensable. Reversing, the Supreme Court held that employees like the class representative in Troester must be paid for regularly occurring work that lasts several minutes per day.

Sheppard, Mullin, Richter&Hampton, LLP v. J-M Manufacturing Co, Inc.⁸ held that a law firm's conflict of interest in simultaneously representing the plaintiff in this action and one of the public entity defendants in an unrelated action, without disclosing this conflict and obtaining an express waiver, rendered unenforceable its engagement agreement with the plaintiff, including that agreement's arbitration clause. This was so despite the fact that both clients had executed engagement agreements that purported to waive all conflicts of interest, current or future. But this ethical violation did not categorically disentitle the law firm from recovering the value of its services in quantum meruit; the matter was remanded to the trial court to address this issue in the first instance.

Binge on the California Supreme Court

This was the second term that the Supreme Court had live streaming of its oral arguments. The live broadcasts and archived sessions were viewed nearly 26,000 times.

Appellate Court Developments

Criminal Caseloads Could Slow Civil Appeals in 2019

Criminal matters have long represented more than half of our state's appellate court workload,⁹ but that imbalance may increase as the courts apply recent decisions (and confront new questions) about the interpretation, reach, and retroactivity of recent criminal reforms.¹⁰ The reforms include voter initiatives reducing many offenses to misdemeanors,¹¹ increasing parole opportunities,¹² and giving greater procedural protections to juvenile offenders.¹³ There are also recent judicial decisions holding that California's cash-bail system is unconstitutional and that individualized bail hearings must be conducted in the trial courts.¹⁴ Recent legislative reforms give sentencing relief to some offenders¹⁵ and eliminate California's cash-bail system altogether.¹⁶ Implementation of the latter reform has been rendered uncertain by an emerging 2020 referendum sponsored by the bail bond industry.

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Collectively, these reforms have unsettled many nearly final criminal cases¹⁷ and given rise to an unusual number of transfers, remands, and appeals that are consuming appellate court resources. In 2019, the appellate courts will also need to develop new expertise to hear death penalty appeals for the first time under Proposition 66's "expedited" process.¹⁸

New Rules Governing the Appellate Record Strive to Improve Access and Efficiency

New settled-statement rules became effective in 2018, and there is a new form appellants may use to propose a settled statement.¹⁹ The changes are intended to reduce barriers for litigants and burdens on the courts.²⁰ Appellants can now elect to use the settled-statement procedure without seeking court approval if either (1) the trial court proceedings were not reported or (2) the appellant has obtained a fee and costs waiver order.²¹

The appellant's notice of election or motion must comply with new content requirements.²² The respondent may now elect to pay for a reporter's transcript if the appellant moves or elects to use a settled statement and the proceedings were reported.²³ The respondent must make this election within 10 days and furnish a certified copy of the transcripts, a deposit, or the reporter's waiver of the deposit whereupon any motion to prepare a settled statement will be dismissed and the reporter will be directed to prepare a transcript.²⁴ The settled-statement procedure may no longer be used as a substitute for a clerk's transcript to provide a record of documents from the lower court proceeding.²⁵ New provisions specify the contents of proposed settled statements and govern the trial court's procedure for reviewing them.²⁶ The appellant's proposed settled statement must include the points it is raising on appeal, to which the appeal is...