The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on August 23, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.
Review Granted
Heimlich v. Shivji, S243029– Review Granted– August 23, 2017
The Sixth District Court of Appeal held in a published opinion, Heimlich v. Shivji (2017) 12 Cal.App.5th 152, that a party timely presented his section 998 claim to the arbitrator, the arbitrator should have reached the merits of that claim, and the arbitrator’s refusal to hear evidence of the section 998 offer warranted partially vacating the arbitration award. The court reversed the order confirming the arbitration award.
The question presented is: When a party to an arbitration proceeding makes an offer of compromise pursuant to Code of Civil Procedure section 998 and obtains a result in the arbitration more favorable to it than that offer, how, when, and from whom does that party request costs as provided under section 998?
City of Morgan Hill v. Bushey (River Park Hospitality), S243042– Review Granted –August 23, 2017
In a published opinion, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34, the Sixth District Court of Appeal held that a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s general plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body’s first choice of consistent zoning.
The question presented is: Can the electorate use the referendum process to challenge a municipality’s zoning destination for an area, which was changed to conform to the municipality’s amended general plan, when the result of the referendum—if successful—would leave intact an existing zoning designation that does not conform to the amended general plan?
Gillotti v. Stewart, S242568–Review granted and held –August 23, 2017
In a published opinion, Gillotti v. Stewart (2017) 11 Cal.App.5th 875, the Third District Court of Appeal affirmed the trial court’s entry of judgment on special jury verdict finding the general contractor negligent and liable for certain violations of the Right to Repair Act and finding the grading subcontractor not negligent and the trial court’s judgment finding the builder liable after failing to appear for trial. The Court of Appeal held that: (1) the Right to Repair Act bars common law claims for damages caused by construction defects within the scope of the Act, subject to specific exclusions within the Act, such as fraud and personal injury; (2) the Act covered the subcontractor’s alleged damage to trees during driveway construction, thus a common law claim to recover for the tree damage was precluded; (3) the homeowner failed to establish prejudice from the trial court’s error in instructing on a special verdict form that the Act only covered damages “to the structure”; (4) evidence supported finding that the subcontractor was not negligent with respect to the home’s violations of the Act’s drainage standards; (5) the subcontractor’s offer to compromise, though inconsistently described, was sufficiently capable of valuation, thus the homeowner’s failure to respond supported an award of expert witness fees; and (6) the homeowner’s husband’s pecuniary interest in the house precluded recovery of attorney fees for his legal work on the case.
Further action in this matter is deferred pending disposition of a related issue in McMillian Albany LLC v. Superior Court, S229762, which presents the following question: Whether the Right to Repair Act (Civ. Code, § 895 et seq.) precludes a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?
Order Limiting Issues After Review Previously Granted
Quigley v. Garden Valley Fire Protection District, S242250– Order limiting issues after review previously granted –August 23, 2017
In a published decision, Quigley v. Garden Valley Fire Protection District (2017) 10 Cal.App.5th 1135, the Third District Court of Appeal affirmed the trial court’s judgment granting nonsuit in favor of two fire protection districts. The Court of Appeal held that: (1) governmental immunity is jurisdictional and can be raised at any time and thus is not subject to the rule that failure to raise a defense by demurrer or answer waives that defense; (2) the firefighter’s injuries were covered by California Government Code section 850.4’s firefighting immunity, which provides immunity regardless of whether the nature of the condition of the firefighting equipment or facilities affects the ability to fight fires.
After granting review, the California Supreme Court limited the issue to the following: (1) Whether, as the Court of Appeal held, the governmental immunity set forth in Government Code section 850.4 may be raised for the first time at trial.
Request to Answer Certified Question of State Law Granted
Meza v. Portfolio Recovery Associates, S242799– Request to answer a question of state law granted– August 23, 2017
The United States Court of Appeals for the Ninth Circuit certified the following question of state law to the California Supreme Court: “Under § 98(a) of the California Code of Civil Procedure, must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?”
Review Denied (with dissenting justices)
Ogunsalu v. Superior Court (California Commission on Teacher Credentialing), S242539– Denied Review [Kruger, J. voting to grant petition]– August 23, 2017
In a published decision, Ogunsalu v. Superior Court (2017) 12 Cal.App.5th 107, The Court of Appeal, Fourth District, Division One, dismissed a petition for writ of mandate challenging the denial of a teacher’s request for a continuance of the hearing on his challenge to the Commission on Teacher Credentialing’s recommendation to suspend his preliminary teaching credentials. The Court of Appeal held: (1) the self-represented teacher’s vexatious litigant pre-filing order applied to his superior court challenge to the administrative law judge’s denial of his request to continue an administrative proceeding where the teacher was the respondent; and (2) the teacher’s petition for writ of mandate was moot because the administrative hearing had been concluded.
Depublished
None.