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Still shorthanded court will hear (only) five cases on the November calendar (because the court is shorthanded?)

10/12/2017 12:30 AM | Denise Bashline (Administrator)

At The Lectern

October 10, 2017


It’s been seven months since Justice Kathryn Werdegar announced her retirement and 40 days since she left the bench, but the Supreme Court is now planning for its third oral argument calendar in a row with a vacancy.  On the court’s November calendar — announced today — there will be five cases and five more Court of Appeal justices serving as pro tems.


This is speculative, but the calendar might have had more cases on it if there weren’t still a vacancy.  For starters, there are now just six justices, instead of seven, working up cases for oral argument, so the supply of argument-ready cases is probably smaller.  For another, the court might be trying to avoid the institutional problem of having any 4-3 opinions with a pro tem justice in the majority.  The court’s Operating Practices and Procedures (see here) says the court typically considers for oral argument only those cases in which a “calendar memorandum has been approved by at least four justices or is likely to be approved by four justices at [a preargument] conference [that is held to identify cases ready for argument].”  (See also here.)  A case that is dividing the justices and that would be considered at a preargument conference by a seven-member court might not make the conference agenda when the court is shorthanded.


On November 7, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):


Hernandez v. Restoration Hardware, Inc.:  Must an unnamed class member intervene in the litigation in order to have standing to appeal?  (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)  The court granted review 16 months ago.  (First District, Division One, Court of Appeal Justice Sandra Margulies is the pro tem.)


Solus Industrial Innovations, LLC v. Superior Court:  Does federal law preempt a district attorney’s attempt to recover civil penalties under California’s unfair competition law based on an employer’s violation of workplace safety standards that resulted in the deaths of two employees?  (Sixth District Court of Appeal Justice Nathan Mihara is the pro tem.)

 Writ petitions are supposed to lead to expedited review, but, for this one, not so much.  The court granted review two years and nine months ago.  And that was the third time the court granted review.  The court had earlier twice granted review and transferred the case back to the Court of Appeal for reconsideration.  (Here and here.)  The writ petition was filed in the Court of Appeal almost five years ago.

People v. Chatman:  Does Penal Code section 4852.01 deny equal protection by making a former felony probationer, who was subsequently incarcerated on a new offense, ineligible for a certificate of rehabilitation, because a former felony prisoner, who was subsequently incarcerated on a new offense, is not ineligible?  The court granted review 11 months ago.  (The pro tem justice has not yet been assigned for this case.)


McMillin Albany LLC v. Superior Court:  Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?  The court granted review 23 months ago.  (Second District, Division One, Court of Appeal Justice Elwood Lui is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus curiae brief in this case.]


People v. Perez:  This is an automatic direct appeal from a January 2002 judgment of death.  The court’s website does not list issues for such appeals.  However, in August, the court requested supplemental briefing about “the effect of recent precedent on the hearsay and confrontation clause issues” related to a particular witness’s testimony.  (First District, Division Three, Court of Appeal Justice Martin Jenkins is the pro tem.)


[October 11 update:  The revised calendar shows that Third District Court of Appeal Justice William Murray, Jr., will be the pro tem in Chatman.]


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