The Supreme Court yesterday announced its early-May calendar. May is the only month in which the court regularly has two calendars. And the May calendars are often larger than normal, because the court is putting an extra number of cases into the pipeline before the argument-free months of July and August. Thus, this year’s early-May calendar has 10 cases, the first calendar with more than six since late May of last year.
Leading off the early-May arguments is Sanchez v. Valencia Holding Co., an arbitration case that has attracted substantial attention. And it has attracted attention for a long time. Review was granted more than three years ago, and there is only one un-argued non-death penalty case (civil or criminal) that has been on the court’s docket as long — Estate of Duke, in which the court granted review on the same day as Sanchez.
On May 5 and 6, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):
Sanchez v. Valencia Holding Co.: Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?
Last year, the court invited supplemental briefing on nomenclature:
In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including “unreasonably favorable” to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); “so one-sided as to shock the conscience” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); “unfairly one-sided” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; “overly harsh” (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and “unduly oppressive” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925). Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one? Are there any terms the court should not use? Is there a formulation not included among those above that the court should use? What differences, if any, exist among these formulations either facially or as applied?
[Disclosure: Horvitz & Levy filed an amicus curiae brief supporting the defendant.]
J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company: After an insured has secured a judgment requiring an insurer to provide independent counsel to the insured (see San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162 Cal.App.3d 358), can the insurer seek reimbursement of defense fees and costs it considers unreasonable and unnecessary by pursuing a reimbursement action against independent counsel or can the insurer seek reimbursement only from its insured?
[Note: counsel for one of the respondents on review today asked the court to reschedule the oral argument. Recent history suggests the request is not a lost cause. See People v. Grewal, post.]
[Disclosure: Horvitz & Levy represents the petitioner on review.]
Even Zohar Construction and Remodeling, Inc. v. Bellaire Townhouses, LLC: Do the requirements of Code of Civil Procedure section 1008, subdivision (b), which govern motions to renew previously denied motions, apply to renewed motions under Code of Civil Procedure section 473, subdivision (b), for relief from default judgment?
Marriage of Davis: For the purpose of establishing the date of separation under Family Code section 771, may a couple be “living separate and apart” when they reside in the same residence?
[Note: argument in this case was continued from the April calendar.]
In re Welch: Is petitioner entitled to relief on the ground of jury misconduct (ex parte communications from the trial court bailiff) as alleged in claim 6 or the ground of ineffective assistance of counsel (failure to investigate and present evidence of petitioner’s social history) as alleged in claim 18 of the petition for writ of habeas corpus filed May 24, 2002?
People v. Cunningham: [This is an automatic appeal from a January 1996 judgment of death. The court’s website does not list issues for such appeals.]
People v. Grewal and People v. Nasser: Are the internet café games at issue in these cases subject to Penal Code section 330b, subdivision (d), on the ground they constitute “slot machine[s] or device[s]”?
[Note: No cobwebs on these cases. The court filed an amicus brief in Grewal just three days ago. However, counsel for two defendants in Grewal today filed a motion to reschedule the argument. See J.R. Marketing, ante.]
People v. Banks: (1) Was the evidence sufficient to establish that defendant Matthews was a “major participant” within the meaning of Penal Code section 190.2, subdivision (d)? (2) Does the true finding on the special circumstance violate due process? (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)
People v. Elizalde: (1) Was defendant subjected to custodial interrogation without the benefit of warnings under Miranda v. Arizona (1966) 384 U.S. 436, when he was questioned about his gang affiliation during an interview while being booked into jail, or did the questioning fall within the booking exception to Miranda? (2) If the questioning fell outside the booking exception, was defendant prejudiced by the admission of his incriminating statements at trial?
People v. Johnson: [This is an automatic appeal from an April 2002 judgment of death. The court’s website does not list issues for such appeals.]