Thursday, July 25, 2013

So Much for Rule of Court 8.1125(d) (and Some Thoughts on Stare Decisis from Judge Wiley)

Farmers Insurance Exchange v. Superior Court, No. B24901 (D2d3 July 23, 2013)

Does the Supreme Court’s subsequent depublication of a key authority relied upon by a superior court constitute a “change in law,” such that the court can reconsider its order under Code of Civil Procedure § 1008(c), even though the order is outside the ten-day window for a party to move for reconsideration under  § 1008(a)? Apparently it does.

The underlying case appears to be a heavily litigated employment class action over meal and rest breaks. The superior court certified a class, relying almost exclusively on Harris v. Superior Court, a court of appeal case decided a few days before the defendant file its class cert opposition. Nineteen days after the court’s ruling, the Supreme Court denied review in Harris but ordered the opinion depublished. That put the defendants in a bind, as they were outside the ten-day window to bring a motion for reconsideration under § 1008(a).  Instead, they filed a motiona motion that the court of appeal recognized “not, strictly speaking, procedurally improper,” under Le Francois v. Goel, 35 Cal. 4th 1094, 1108 (2005)asking the court to sua sponte reconsider under § 1008(c) based on the “change in law” due to the depublication.

The trial court declined to reconsider, reasoning that Rule of Court 8.1125(d)’s edict that no expression of the Supreme Court’s opinion on the correctness of an opinion can be drawn from a depublication means that a depublication cannot result in a change in law. Recognizing that its ruling was subject to reasonable dispute, the trial court granted and order under § 166.1, recognizing the trial judge’s belief that there was a controlling questions of law subject to substantial grounds for disagreement, where appellate review would materially advance the litigation. Defendant sought writ review and the court of appeal issued an order to show cause.

The court of appeal first addressed a threshold issue regarding the appealability of an order under § 1008(c), finding that given the purely legal issue raised, and the court’s certification under § 166.1, an exception to the general rule against reviewing motions for reconsideration was warranted. 

Reaching the merits, the court held that, notwithstanding Rule of Court 8.1125(d) depublication could create a change in law when it removes any authority for the underlying order by rendering that authority unciteable. “Because depublication renders the opinion non-citeable and removes its precedential value, it nullifies the opinion and renders it nonexistent.” Under the circumstances, that was sufficient to constitute a “change in law” bringing the case within the court’s discretion under § 1008(c). The court then expressly found that reconsideration should have been granted, declining to remand the case to the trial court in the first instance.

Writ granted.

As an interesting aside, the trial court colorfully pointed out a conundrum that is peculiar to California trial courts due to California’s somewhat unusual rules of stare decisis that bind the trial court to any court of appeal unless there is a conflictsince the court of appeal does not bind itselfin which case the trial court is left to its own devices to pick the better rule.  See Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455 (1962). As the trial court explained, noting that there was some conflict with the Harris decision: “You know, it’s an amusing rule really for a trial court to consider that when there’s an argument that there’s a conflict between the Court of Appeal and the Court of Appeal, it’s some lonesome trial judge somewhere who’s supposed to say: Oh, yes, I’m appointed [to] the Supreme Court for temporary purposes here and I will make the call on this. [¶] That is Auto Equity.”

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