The Supreme Court February calendar will have eight cases and, as with the past five months’ calendars, a pro tem justice is scheduled to sit on each case to compensate for the vacancy created by Justice Kathryn Werdegar’s retirement, which was announced ten months ago. (Speaking of delays, the court granted review in three of the February cases in 2015.)
What makes the latest calendar different from the last five is that only one pro tem has been named so far. That suggests the court believes the appointment and confirmation of Justice Werdegar’s replacement in finally imminent, in which case temporary justices for February could be unnecessary. Or it might mean nothing at all.
On February 6 and 7, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):
California Building Industry Association v. State Water Resources Control Board: (1) Does Water Code section 181 permit the State Water Resources Control Board to approve its annual fee under the waste discharge permit program by a majority of the quorum? (2) Does Proposition 26 apply to the waste discharge permit program fee? (3) Does the Board have the initial burden of demonstrating the validity of its fee? (4) Is the fee, which is based on balancing the fees and costs of the waste discharge permit program, an invalid tax unless it separately balances the fees and costs of each of the eight program areas within the program? The court granted review in July 2015. (The pro tem justice has not yet been assigned for this case.)
Dynamex Operations West, Inc. v. Superior Court: In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control?
The court has twice asked for supplemental briefing.
A year ago, the court told the parties and amici to discuss what relevance, if any, the court should give to the Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual (2002 update as revised March 2006) and, in particular, to the sections of the manual that discuss the independent contractor/employee distinction (§§ 2.2, 2.2.1, 28-28.4.2.4)?
Then, just nine days ago, the court asked the parties to brief: Is the pertinent wage order’s suffer-or-permit-to-work definition of “employ” properly construed as embodying a test similar to the “ABC” test that the New Jersey Supreme Court, in Hargrove v. Sleepy’s LLC (N.J. 2015) 106 A.3d 449, 462-465, held should be used under the New Jersey Wage and Hour Law, which also defines “employ” to include “to suffer or to permit to work” (N.J. Stat. § 34:11-56a1)?
This case is an old one. Review was granted almost three years ago.
(The pro tem justice has not yet been assigned for this case.)
[Disclosure: Horvitz & Levy has filed amicus curiae briefs in this case.]
People v. Chavez: (1) Does Penal Code section 1203.4 eliminate a trial court’s discretion under Penal Code section 1385 to dismiss a matter in the interests of justice? (2) Do trial courts have authority to grant relief under Penal Code section 1385 after sentence has been imposed, judgment has been rendered, and any probation has been completed? The court granted review just 10 months ago. (The pro tem justice has not yet been assigned for this case.)
In re I. C.: (1) Did the juvenile court err by failing to determine whether the truthfulness of the minor as a hearsay declarant was “so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility” as required by In re Lucero L. (2000) 22 Cal.4th 1227? (2) Did the Court of Appeal err by affirming the trial court’s jurisdictional finding without reviewing the entire record for substantial evidence of the minor’s clear truthfulness? The court granted review in October 2015. (The pro tem justice has not yet been assigned for this case.)
People v. Reed: This is an automatic direct appeal from a September 1999 judgment of death. The court’s website does not list issues for such appeals. (Fifth District Court of Appeal Justice Rosendo Peña, Jr., is the pro tem.)
Heckart v. A-1 Self-Storage, Inc.: Was a self-storage facility’s storage rental agreement, which included provisions arguably meeting the definition of “insurance” (see Ins. Code, §§ 22, 1758.75), subject to regulation under the Insurance Code when the principal purpose of the agreement between the parties was the rental of storage space rather than the shifting and distribution of risk? The court granted review in March 2016. (The pro tem justice has not yet been assigned for this case.)
People v. Perez, Jr.: Did the Court of Appeal err when it failed to defer to the trial court’s factual finding that defendant did not use a deadly weapon during his previous assault and was therefore eligible for resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126)? The court granted review one year ago. (The pro tem justice has not yet been assigned for this case.)
People v. Soto: (1) Did the trial court err in instructing the jury? (2) If so, was the error prejudicial? Because that statement of the issues is not very enlightening, you might want to look at the Court of Appeal’s opinion for a better idea of what’s involved. (Spoiler alert: the Court of Appeal found a non-prejudicial error.) The Supreme Court granted review in October 2016. (The pro tem justice has not yet been assigned for this case.)
[January 9 update: Pro tems announced for the February calendar.]