Getting All Meta

Cohen v. Superior Court, No. B330202 (D2d4 Jun. 6, 2024).

This one is pretty interesting, in a kind of meta way. 

The underlying litigation is a fight between neighbors over landscaping. Plaintiffs say Defendants’ shrubbery violates the LA Municipal Code. The purport to get their cause of action from a Government Code provision that states:

Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action. action.

 Gov’t Code § 36900(a).

That seems to me, at least, to say that a city attorney can bring either a misdemeanor case or a civil action to redress the violation of a city ordinance. But Plaintiffs say that “redressed by civil action” means that anyone can bring a civil action alleging an ordinance violation. That reading isn’t totally nuts or anything, but it’s awkward.

Plaintiffs, however, have a 20-year old Court of Appeal case that agrees with them on their side. Riley v. Hilton Hotels Corp., 100 Cal. App. 4th 599 (2002). Because, in the absence of other authority, that bound the trial court, it overruled the Defendants demurrer. Defendants took a writ.

Plaintiffs moved to dismiss the writ, claiming, among other things, that the Court of Appeal doesn’t have jurisdiction to order the superior court to ignore Riley, based on the lack of horizontal stare decisis in the Court of Appeal. 

That’s pretty obviously wrong. Nothing about Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 456 (1962) or the other cases interpreting California’s somewhat unusual stare decisis rules says that the Court of Appeal can’t grant a writ that orders the trial court to comply with a rule that is sideways with some existing Court of Appeal precedent. That’s a pretty basic upshot from not having horizontal stare decisis.

But the Court of Appeal goes on to say that because Riley was a decision of the 2/4 (albeit with a completely different panel), it doesn’t just get to disagree with Riley. It can overrule it.

I didn’t know that was a thing. I had always thought that one of the features of the whole Auto Equity setup was that the division of the Court of Appeal into geographic districts, and subdivision of some districts into divisions, had no significance from the perspective of stare decisis. See Tourgeman v. Nelson & Kennard, 222 Cal. App. 4th 1447, 1456 n.7 (2014). So, for instance, the 2/4 isn’t even technically bound by prior opinions of the 2/4, even if it’s unlikely to disagree with itself. (Although it happens, sometimes seemingly by accident.) And if you can’t bind or be bound, it’s difficult to understand how you could overrule. 

The Court here does cite a couple of cases where panels on Court of Appeal purport to overrule prior decisions out of the same division. See Est. of Sapp, 36 Cal. App. 5th 86, 109 (2019); Saucedo v. Mercury Sav. & Loan Assn., 111 Cal. App. 3d 309, 315 (1980); People v. Yeats, 66 Cal. App. 3d 874, 879 (1977). But none of them explains why a panel of the Court of Appeal actually has the power to overrule a prior decision, as opposed to merely disagree with it. It also cites some Supreme Court cases that explain when stare decisis should not preclude departing from prior precedent. See Moradi-Shalal v. Fireman's Fund Ins. Companies, 46 Cal. 3d 287, 296 (1988); Cianci v. Superior Court, 40 Cal. 3d 903, 923 (1985). But the “no horizontal stare decisis” rubric does not apply to the Supreme Court. As the cited cases show, it typically views itself bound by its prior decisions under principles of stare decisis, but also able to overrule them.

I’m not saying this is bad, really. Just under-theorized. I have been of the view for long time, including in some of the earliest posts on this blog, that California should consider some way to create greater consistency in the Court of Appeal. This could take the form of some kind of formal en banc procedure or an expansion of the workload of the Supreme Court. Both of those, however, are bureaucratically difficult. It seems like the rules could also be amended to permit the Supreme Court to grant and transfer, and provide the transferee court to act as a quasi en banc, with the authority to disapprove of inconsistent prior decisions of Court of Appeal, which would then be subject to further discretionary review by the Supreme Court. I believe, given the power afforded to the Judicial Council under Article VI, § 12(c) of the state constitution, this could be accomplished by a minor amendment to the Rules of Court.

But given the way Auto Equity works at the superior court level, permitting divisions of the Court of Appeal to “overrule” prior decisions of the same divisions, and only the same divisions, is arbitrary and likely to be ineffective. The one place it might work is when, like here, there’s an isolated outlier that is the only thing that speaks on an issue, incorrectly. The other overruling cases cited in the opinion seem to be similarly situated.

In any event, the Court, having decided it has the power to overrule Riley, overrules Riley. For all sorts of reasons, even if the statute is ambiguous, it seems clear that Government Code § 36900(a) does not create a private right of action for anyone to enforce a city ordinance in a civil suit.

Writ granted.