business have a foe or friend at the California Supreme Court?
That's an important question. Much is at stake,
as the Golden State is the sixth largest economy in the world.
can be friendly or unfriendly to business,” former California Supreme Court Justice
Cruz Reynoso told the Northern California
Record. “Courts are influenced by their view of what the law means and what
is best (for) society.”
appoint justices to the state’s high court, comprised of a Chief Justice and
six Associate Justices. Current Democratic Gov. Jerry Brown’s newest trio of
appointments tilted away from business in a recent decision, said one
the addition of Justices (Goodwin H.) Liu, (Mariano-Florentino) Cuellar, and (Leondra R.) Kruger (the author of Nickerson v.
Stonebridge Life Insurance Co.),” attorney Evan Tager of Meyer Brown in Washington, D.C. blogged,
“the current court may be among the least business-friendly in decades.”
Nickerson case decision calculates a constitutional limit in a ratio of
punitive damages (beyond necessary compensation) of 10 times’ compensatory
damages (necessary compensation) in bad faith insurance cases by in part
including attorneys’ fees (Brandt fees).
California Supreme Court is sometimes business-friendly and sometimes not,” Kim
Stone, president of the Civil Justice Association of California, told the Northern California Record.
disagrees with Tager’s view that the state’s high court tilts away from the
interests of business now in contrast to decades past.
matter in the language and usage of words in the practice of law. What does a
term such as “business-friendly” mean for the California high court?
Hastings Law Professor David Levine told the Northern California Record the answer is in the eye of the
beholder (e.g., whose interest are harmed or helped in high court decisions).
Levine said when business loses litigation it describes such rulings as “business
“When a business wins a case then the court is business-friendly,” Levine said.
It is a little like calling a court “activist,” meaning how are you are using the
term depends on your perspective, Levine said.
late July, the California Supreme Court released its opinion in People ex rel.
Kamala Harris v. Pac Anchor Transportation. In that case, “the issue is whether
an action under the UCL (unfair competition law) against a trucking company for
treating individuals who drive trucks for them as 'individual
contractors' instead of 'employees' is preempted by the Federal
Aviation Administration Authorization Act (FAAAA),” Stone said.
California high court ruled that UCL preempts the FAAAA. Companies such as the
ride-hailing firm Uber also face litigation over the status of drivers that
labor as independent contractors, not employees, across the U.S.
California Supreme Court going back quite some time prior to Gov. Brown has
been quite protective of consumers’ interest in arbitration cases, Levine said. That trend does not extend to the highest court in the land though, he said.
U.S. Supreme Court has pushed very hard back against the Golden State’s high
court decisions making it easier for corporations to force individuals into
arbitration agreements that exclude class-action lawsuits in banking,
health care and telecommunications,” Levine said. Under Chief Justice
Roberts, the current U.S. Supreme Court is quite pro-business, he said.
are exceptions to pro-consumer protection decisions in the Golden State’s high
the Sanchez v. Valencia Holding Co. decision of early August, the California
Supreme Court held the challenged arbitration agreement valid in all respects,
California Supreme Court decision in late July held that class-wide arbitration
must be decided on a case-by-case basis in Sandquist v. Lebo Auto., Inc.
upcoming decisions, California’s high court will rule on employer liability for
employees, their family and friends in take-home asbestos cases. Two cases of
note are Haver v. BNSF Railway Company, and Kesner v. Superior Court (Pneumo
California Center for Jobs and the Economy and the University of San Francisco
Law School declined requests for comment from the Northern California Record.
high court’s annual reports on appeals for the 2013-14 fiscal year do not show
dramatic changes in its decisions for or against business, Levine said. For the 2013–2014 court year, the Supreme Court filed opinions in
a total of 33 civil matters out of an overall figure of 83.
of the current seven California Supreme Court justices are GOP governor appointees.
By contrast, the electorate in the Golden State is a Democratic majority including
the governor and both houses of the state Legislature, putting the California GOP
at a disadvantage.
the Golden State is rock-solid blue is beyond dispute in 2016, but such has not
always been true, with implications for California's high court. In 1986, for
instance, GOP Gov. George Deukmajian backed the death penalty, a political wedge that helped to seal the fate of then-Supreme Court Justice Cruz Reynoso,
one of three jurists who were ousted in an historic vote under the state system
of electoral judicial-retention.
high court took a clear turn to the right in terms of protecting insurance
companies and other businesses,” he said.
Gov. Jerry Brown had appointed him, Chief Justice Rose Bird and Associate
Justice Joseph Grodin to the state Supreme Court. Thirty years ago the
Republican Party was more powerful in California, a shadow of its former self
today in the face of Democratic majority.
think Gov. Brown’s appointees — Justices Liu, Cuéllar and Kruger— have been
pretty reasonable,” the CJAC’s Stone said. “I would not say they differ
tremendously from the general California electorate.”