Appellate Webinar CA Supreme Court 4-29 2015_PUBLIC_version

The California Supreme Court
What to Expect in 2015
Kirk C. Jenkins
Hall R. Marston
Michael M. Walsh
Sedgwick 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)
6332000 - 2014
CIVIL CASES
43DATA POINTS
PER CASE
34,000+DATA POINTS

Reversal Rates, 2010-2014
Overall Reversal Rate
2010 61.1
2011 85.7
2012 76.0
2013 51.7
2014 57.9

Reversal Rates – LA’s 2nd District
2010 2011 2012 2013 2014
Division 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 2014
Division 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 2014
3rd District 71.4 88.9 100 100 100
4th, Div. 1 58.3 71.4 66.67 83.3 75
4th, Div. 2 75 100 50 25 0
4th, Div. 3 25 44.4 87.5 100 100
5th District 100 0 100 50 60
6th 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 Decisions
2010 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 2014
Corrigan/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 2014
Corrigan/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 Court
Case no. S221038
Rev. 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 %
250
1.1
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.

Asbestos
Kesner v. Superior Court, S219534
(opinion below 226 Cal.App.4th 251)
Haver v. BNSF Railway Co., S219919
Webb v. Special Electric Co., Inc., S209927

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 factors
When 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
Hospital
Case no. S209836

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.
2
yrs LIMITATIONS PERIOD
FOR PERSONAL INJURY
DUE TO NEGLIGENCE
1
yr
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?

ADR Issues continue to occupy
the Court
Sanchez v. Valencia Holding Co. LLC, S199119
Sandquist v. Lebo Automotive, Inc., S220812
Gaines v. Fidelity National Title Ins. Co., S215990
ADR Issues

Sanchez – the Supreme Court
returns to FAA Preemption
FAA 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 Angeles
Supreme Court case no.: 208130

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
Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C.,
S211645
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 Court
Supreme Court case no.: S215132

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
deSaulles v. Community Hosp. of the Monterey
Peninsula, S219236
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 Court
Supreme Court case no.: S217651

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 originally 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
Texas
Illinois
Florida
Washington D.C. New York

Questions?
Kirk C. Jenkins
Kirk.Jenkins@SedgwickLaw.com
Twitter: @KirkCJenkins
One N. Wacker Drive, #4200, Chicago, IL 60606
(312) 641-9050
Hall R. Marston
Hall.Marston@SedgwickLaw.com
Michael M. Walsh
Michael.Walsh@SedgwickLaw.com
801 S. Figueroa, 19th Floor, Los Angeles, CA 90017
(213) 426-6900
Appellate Strategist
Illinois Supreme Court Review
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