California Supreme Court Civil Issues Pending: Civil Procedure/Evidence/Discovery

[UPDATED THROUGH APRIL 1, 2016]

Does Special Motion to Strike Apply to Claims Which Only Challenge Validity of an Action? After the Court of Appeal reversed an order denying a special motion to strike in a civil action, the Court granted review of the following issue: Does C.C.P. § 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications? Park v. Board of Trustees of California State University, S229728, (B260047, as modified, formerly 239 Cal.App.4th 1258). Review was granted 12/16/16.

Is a Petition for Relief Needed to Support a Claim When a Timely Application to File a Late Claim Was Filed? After the Court of Appeal Fourth District, division three, affirmed an order denying a petition for relief under the Government Claims Act (Gov. Code, § 810, et seq.), the 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 12/16/16.

Does Federal Law Bar the Production of Social Media Records? After the Court of Appeal granted a petition for peremptory writ of mandate, and quashed subpoenas for the production of social media records, the Court granted review of the following issues: (1) Did the Court of Appeal properly conclude that defendants are not entitled to pretrial access to records in the possession of Facebook, Instagram, and Twitter under the federal Stored Communications Act (18 U.S.C. § 2701, et seq.) and People v. Hammon (1997) 15 Cal.4th 117 ? (2) Does an order barring pretrial access to the requested records violate defendants’ right to compulsory process and confrontation under the Sixth Amendment or their due process right to a fair trial? (3) Should this court limit or overrule People v. Hammon? Facebook, Inc. v. Superior Court, S230051, (opinion below A144315, formerly 240 Cal.App.4th 203). Review was granted 12/16/16.

Does the Interim Adverse Judgment Rule Apply to Bar Malicious Prosecution after an Ultimate Finding of Bad Faith? After the Second District Court of Appeal affirmed an order granting a special motion to strike, the Court granted review of the following issues: (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith? (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6? Parrish v. Latham & Watkins, S228277, (opinion below B244841, and after rehearing, formerly 238 Cal.App.4th 81). Review was granted 10/14/95.

Can the Trial Court Consider Late-Filed Documents Regarding a New Trial? After the Fourth District, Division One, Court of Appeal affirmed an order granting a new trial, the Court granted review on the following issue: Are the time constraints in California C.C.P. § 659a jurisdictional such that a court cannot consider late-filed documents? Kabran v. Sharp Memorial Hospital, S227393, (opinion below D064133, formerly 236 Cal.App.4th 1294). Review was granted 7/29/15.

Are Defendants the Prevailing Parties after a Procedural Dismissal? After the Second District Court of Appeal affirmed an order denying an award of attorney fees, the Court granted review of the following issue: Were defendants entitled to an award of attorney fees under Civil Code § 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause? DisputeSuite.com, LLC v. Scoreinc.com, S226652, (opinion below B248694, formerly 235 Cal.App.4th 1261, as modified 236 Cal.App.4th 529e). Review was granted on 7/29/15.

When Does Prejudgment Interest on a Retroactive Disability Award Start? After the Fourth District Court of Appeal, Division 1, reversed the judgment which awarded prejudgment interest on all retroactive amounts, the Court granted review on the following issue: If a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, is prejudgment interest under Civil Code § 3287 calculated from the day after the employee’s last day of regular compensation or the day on which the employee submitted the claim for the benefits? Flethez v. San Bernardino County Employees Retirement Assn., S226779, (opinion below D066959, formerly 236 Cal.App.4th 65). Review was granted 7/15/15.

Are Redacted Attorney Invoices Still Privileged? After the Second District Court of Appeal granted a petition for peremptory writ of mandate, the Court granted review on the following issue: Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted? Los Angeles County Bd. of Supervisors v. Superior Court, S226645, (opinion below B257230, formerly 235 Cal.App.4th 1154). Review was granted 7/8/15. Update 3/23/16: Review granted in Marina Coast Water Dist. v. Public Utilities Com., S230728 (original proceeding). Briefing deferred pending resolution of Los Angeles County Bd. of Supervisors.

Can Complaint Be Only Partially Subject to a Special Motion to Strike? The Court granted review after the Court of Appeal affirmed an order denying a special motion to strike in a civil action, on the following issue: Does a special motion to strike under Code of Civil Procedure § 425.16 authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute? Baral v Schnitt, S225090, (opinion below B253620, formerly 233 Cal.App.4th 1423). Review was granted 5/13/15. Update 4/1/16: Oral argument scheduled for 5/5/16.

Does Inadvertent Disclosure Through a Public Records Request Waive Attorney-Client Privilege and Work Product Protections? What is the Consequence to the Attorney who Refuses to Return Them? After the Court of Appeal affirmed the trial court order, the Court granted review of the following issues: (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act request waive those privileges and protections? (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them? Ardon v. City of Los Angeles, S223876 (opinion below B252476, formerly 232 Cal.App.4th 175). Review was granted 3/11/15. Update 10/14/15: Review was granted in Newark Unified School Dist. v. Superior Court, S229112 (opinion below A142963, formerly 239 Cal.App.4th 33), after the Court of Appeal granted a petition for a peremptory writ of mandate. Briefing was deferred pending resolution of Ardon. Update 3/17/16: Opinion issued. The unanimous Court reversed the lower court orders and held that an inadvertent disclosure did not constitute a waiver under Gov. Code § 6254.5, and that a governmental entity’s inadvertent release of privileged documents under the Public Records Act does not waive the privilege. Since there were no lower court rulings on disqualification, that issue was remanded for further proceedings.

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 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.

Can City Officials Invoke CCP §425.16 Against an Allegation that They Had a Financial Interest in the Contract? The Court granted review of the following issue: Did votes by city officials to approve a contract constitute conduct protected under CCP §425.16 despite the allegation that they had a financial interest in the contract? City of Montebello v. Vasquez, S219052 (opinion below B245959, formerly 226 Cal.App.4th 1084). Review was granted 8/13/14. Update 6/24/15: review granted in FTR International v. Board of Trustees, S226521, (lead case below B242220, nonpublished opinion.) Briefing is deferred pending a decision in Vasquez.

When Defendant Pays for a Dismissal, Who is the Prevailing Party Regarding Costs? The Court granted review on the following issue: When plaintiff dismissed her action in exchange for the defendant’s payment of a monetary settlement, was she the prevailing party for purposes of an award of costs under CCP § 1032(a)(4), because she was “the party with a net monetary recovery,” or was defendant the prevailing party because it was “a defendant in whose favor a dismissal is entered”? deSaulles v. Community Hospital of the Monterey Peninsula, S219236 (opinion below H038184, formerlly 225 Cal.App.4th 1427). Review was granted 7/23/14. Update 12/3/15: Oral argument scheduled for 1/5/16. The briefs are here. Update 1/5/16: Case argued and submitted. Update 3/10/16: Opinion issued. A divided Court, 5-2, affirmed the Court of Appeal. The majority held that, unless the parties make some other arrangement, when a defendant pays money to a plaintiff in order to settle a case, that constitutes a “net monetary recovery” for the defendant , and a dismissal pursuant to such a settlement is not a “dismissal in defendant‘s favor” under § 1032(a)(4). The dissent by Justice Kruger disagreed with the second point, but would find that such a dismissal did satisfy § 1032(a)(4). Since both parties cannot recover costs as a matter of right, the dissent would apply the next sentence in § 1032(a)(4), which gives the trial court the discretion to award costs in situations not resolved by the statue.

Does a Stay for Purposes of Mediation Toll the 5-year Limit to Bring the Matter to Trial? After the Court of Appeal affirmed in part and reversed in part the judgment in a civil action, the Court granted review on the following issue: Was this action properly dismissed for the failure to bring it to trial within five years or should the period during which the action was stayed for purposes of mediation have been excluded under C.C.P. § 583.340(b) or (c)? Gaines v. Fidelity National Title Ins. Co., S215990 (opinion below B244961, formerly 222 Cal.App.4th 25). Review granted on 4/16/14. Update 7/29/15: The Court directed the parties to file supplemental letter briefs on the following issues: (1) Did the trial court’s April 3, 2008 order “striking the current Trial Date of September 22, 2008” constitute a stay of the “trial of the action” under C.C.P. § 583.340, subdivision (b)? (2) What factors distinguish between a stay of trial and a continuance of trial for purposes of C.C.P. § 583.340(b)? Update 10/29/15: Oral argument scheduled 12/2/15. The briefs are here. Update 12/2/15: Case argued and submitted. Update 2/25/16: Opinion filed. Divided 5-2, the Court affirmed the appellate court and the dismissal of this action, with Justice Corrigan writing for the majority. The Court held that this stipulated “mediation stay” was only a partial stay and so did not satisfy C.C.P. § 583.340(b), and that it also did not result in circumstances of “impossibility, impracticability, or futility” under C.C.P. § 583.340(c), and therefore found no exception to the 5-year dismissal rule of C.C.P. § 583.310. The Court noted that the plaintiffs (1) “made meaningful progress toward resolving the case” during the stay, including the completion of all pending discovery and pursuing mediation, (2) remained “in control of the circumstances,” including entering into the voluntary stay, and (3) failed to show due diligence during the 120-day stay, which ended up being 217 days long. Justice Kruger dissented, joined by Justice Liu, insisting that the original 120 days in which the court stayed the action falls within the statutory language, i.e., that the “prosecution or trial of the action was stayed or enjoined” by the trial court, making trial impracticable, and further citing the Legislative preference that cases be resolved on their merits.

Is Failure to Issue a Statement of Decision Reversible Per Se? After the Court of Appeal affirmed the judgment in a civil action, the court granted review on the following issue: Is a trial court’s error in failing to issue a statement of decision upon a timely request reversible per se? F.P. v. Monier, S216566 (opinion below C062329, formerly 222 Cal.App.4th 1087). Review was granted 4/16/14

Can the Court Award Attorney Fees After Striking the Complaint for Lack of Jurisdiction? After the Court of Appeal reversed an order awarding attorney fees in a civil action, the Court granted review on the following issue: If the trial court grants a special motion to strike under CCP § 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by § 425.16(c)? Barry v. State Bar of California, S214058 (opinion below B242054, formerly 218 Cal.App.4th 1435). Review granted on 11/27/13.

Can a Trial Court Treat Pre-Trial Motions For Nonsuit and Directed Verdict as a Post Trial JNOV Motion? The Court granted review on the following issues: (1) Should a defendant that supplied raw asbestos to a manufacturer of products be found liable to the plaintiffs on a failure to warn theory? (2) Was the trial court’s decision to treat defendant’s pre-trial motions for nonsuit and for a directed verdict as a post-trial motion for judgment notwithstanding the verdict procedurally improper, and if so, was it sufficiently prejudicial to warrant reversal? Webb v. Special Electric Co., Inc., S209927, (opinion below B233189, formerly 214 Cal.App.4th 595, as modified). Review was granted on 6/12/13. Update 1/21/15: Review granted in Gottschall v. Crane Co., S222887 (opinion below A136516, formerly 230 Cal.App.4th 1115), with briefing deferred until a decision in Webb. Update 2/10/16: Oral argument scheduled for 3/1/16. The briefs are here. Update 3/1/16: Case argued and submitted.

Which Limitations Period Controls a Negligence Action Against a Hospital for Equipment Failure? The Court granted review on the following issues after the Court of Appeal reversed an order of dismissal: (1) Does the one-year statute of limitations for claims under the Medical Injury Compensation Act (CCP § 340.5) or the two-year statute of limitations for ordinary negligence (CCP § 335.1) govern an action for premises liability against a hospital based on negligent maintenance of hospital equipment? (2) Did the injury in this case arise out of “professional negligence,” as that term is used in § 340.5, or ordinary negligence? Flores v. Presbyterian Intercommunity Hospital, S209836 (opinion below, B235409, formerly 213 Cal.App.4th 1386). Review was granted on 5/22/13. Update 7/8/15: : After the Fourth District, Division Three, reversed a summary judgment for defendant, the Court granted review in Pouzbaris v. Prime Healthcare Services-Anaheim, LLP, S226846, (opinion below G048891, formerly 236 Cal.App.4th 116). Briefing is deferred pending a decision in Flores. Update 1/14/16: Oral argument scheduled for 2/9/16. The briefs are here.