April, 2003
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TORTS
EMPLOYMENT
Elsner v. Uveges
S113799 (D037761) 106 Cal.App.4th 73
Petition for review after reversal of judgment. Question presented: Did a 1999 amendment to Labor Code §6304.5 change the long-standing rule prohibiting consideration of Cal-OSHA regulations in tort actions brought by employees against parties other than their own employers for workplace injuries? 4/30/03

GOVERNMENT/CONSTITUTIONAL LAW
Mitsubishi Materials Corporation v. Superior Court (Dillman)
S114470 (G303356) 106 Cal.App.4th 39
Petition for review after grant of petition for writ of mandate. Question presented: As a matter of law, has the federal government waived, by treaty, all reparations claims of American World War II prisoners of war who were forced to perform slave labor for the benefit of private Japanese corporations, thereby precluding any subsequent state-law reparations claims? 4/30/03

CIVIL LITIGATION
Taiheiyo Cement Corporation v. Superior Court (Jeong)
S113759 (B155736) 105 Cal.App.4th 398
Petition for review after denial of petition for writ of mandate. Question presented: Is a California statute permitting recovery to slave labor or forced labor victims during World War II pre-empted by federal law? Is the statute unconstitutional? 4/30/03

INSURANCE
ENVIRONMENTAL
Powerine Oil Company, Inc. v. Superior Court (Central National Insurance Company)
S113295 (B156216) 104 Cal.App.4th 957
Petition for review after grant of petition for writ of mandate. Question presented: Did an excess/umbrella liability insurer have a duty to indemnify an insured for costs incurred as a result of a government-ordered abatement and cleanup of environmental pollution? 4/23/03

INSURANCE
County of San Diego v. ACE Property & Casualty Insurance Company
S114778 (D038707) 106 Cal.App.4th 349
Petition for review after affirmance of judgment. Question presented: Did the court of appeal err in holding that a nonstandard third-party liability policy’s coverage for "damages" did not encompass the insured’s payment of claims that were neither litigated in court nor approved by the insurer? 4/23/03

EMPLOYMENT
Mackey v. Department of Corrections
S114097 (C040261) 105 Cal.App.4th 945
Petition for review after affirmance of judgment. Question presented: Under the Fair Employment and Housing Act, did a supervisor’s preferential treatment of employees who granted him sexual favors constitute sexual discrimination against employees who were never asked to provide such favors? 4/23/03

CRIMINAL LAW
People v. Johnson
S113803 (H023838) 105 Cal.App.4th 515
Petition for review after reversal of judgment. Question presented: After a trial court recalled a defendant’s initial sentence and then later resentenced him, was the defendant entitled to Penal Code §4019 credits from the date his initial sentence was recalled through the date of his resentencing? Did the trial court have discretion to impose concurrent sentences after a defendant with prior felony convictions was convicted of more than one felony count not committed on the same occasion and not arising from the same set of operative facts? 4/23/03

CRIMINAL LAW
People v. Casper
S114285 (D038550) 105 Cal.App.4th 1373
Petition for review after affirmance in part and reversal in part of judgment. Question presented: After a trial court dismissed strike allegations as to some, but not all, of a defendant’s multiple convictions, was the court relieved of its obligation, under Three Strikes law, to impose consecutive sentences as to those convictions? 4/23/03

CRIMINAL LAW
People v. Braxton
S114375 (A096083) 106 Cal.App.4th 137
Petition for review after reversal of judgment. Question presented: Did a trial court err in refusing to hear a defendant's timely oral motion for a new trial, where it was made at the outset of the sentencing hearing? Was the defendant entitled to a new trial under Penal Code §1202, even in the absence of a further request, on the grounds, as indicated in the record, that such a request would have been futile? 4/23/03

CRIMINAL LAW
People v. Leal
S114399 (H023031) 105 Cal.App.4th 833
Petition for review after affirmance of judgment. Question presented: For purposes of forcible sex offenses other than rape, does the element of "duress" include direct or implied threat of "hardship?" 4/23/03

GOVERNMENT/CONSTITUTIONAL LAW
Venegas v. County of Los Angeles
S113301 (B148398) 105 Cal.App.4th 636
Petition for review after affirmance in part and reversal in part of judgment. Question presented: With respect to a 42 U.S.C. §1983 civil rights suit, were the circumstances surrounding a two-hour police detention and search of a home sufficient to indicate a potential violation of the detainees' state and federal civil rights, thus precluding a grant of nonsuit as to allegations of unreasonable search and seizure? 4/16/03

CIVIL LITIGATION
Olmstead v. Arthur J. Gallagher & Co.
S113272 (A097117) 104 Cal.App.4th 858
Petition for review after reversal of orders. Question presented: Does Code Civ. Proc. §128.5 authorize sanctions for bad faith conduct or litigation abuses that occurred after December 1994, or is the imposition of sanctions for such conduct governed solely by Code Civ. Proc. §128.7? 4/16/03

BANKING BUSINESS & CONTRACTS
Bronco Wine Company v. Espinoza
S113136 (C037254) 104 Cal.App.4th 598
Petition for review after grant of petition for writ of mandate. Question presented: Is Bus & Prof Code §25241, which prohibits the use of the word "Napa" on labels, packaging, or advertising relating to any wine not grown in Napa County, pre-empted by federal law and therefore entirely void? 4/9/03

EMPLOYMENT
Honeywell v. Workers' Compensation Appeals Board
S113201 (B156438) 104 Cal.App.4th 829
Petition for review after affirmance of judgment. Question presented: Was an employer's duty to provide a workers' compensation claim form to a worker triggered when the employer became "reasonably certain" that the worker was injured or claiming injury, or was the employer entitled simply to rely on the statutory requirement that the employer have "notice or knowledge of injury"? 4/9/03

EMPLOYMENT
City of Anaheim v. Nolan
S113359 (G028272) 104 Cal.App.4th 1170
Petition for review after reversal of judgment. Question presented: Did the court of appeal err in holding that a police officer was "permanently disabled," and thus eligible for disability, only if he was mentally incapable of working anywhere in California and not merely in the city police department where he was formerly employed? 4/9/03

INSURANCE
Northwest Airlines, Inc. v. Ontario Aircraft Services, Inc.
S113305 (B156158) 104 Cal.App.4th 1053
Petition for review after reversal of judgment. Question presented: Can an insurer's failure to inform a third party claimant of the applicable statute of limitations pertaining to the claim serve to estop the insurer from relying on the statute of limitations in defense of the claim? 4/9/03

ENVIRONMENTAL
Marine Forests Society v. California Coastal Commission
S113466 (C038753) 104 Cal.App. 1232
Petition for review after affirmance of judgment. Question presented: If a California Coastal Commission was unconstitutionally defective, as specified in a recent court of appeals decision, what remedy is available to the prevailing party? What effect would the appellate court decision have on other Commission decisions, both past and currently pending? Does a recent legislative change cure the constitutional defect? 4/9/03

CRIMINAL LAW
People v. Brown
S113929 (B153455) Unpublished
Petition for review after affirmance of judgment as modified. Question presented: Is expert testimony on battered women's syndrome (BWS) admissible under Evidence Code §1107 in an alleged domestic violence case in the absence of evidence of prior abuse or conduct consistent with BWS? 4/9/03

BANKING BUSINESS & CONTRACTS
Mandel v. Household Bank (Nevada), National Association
S113699 (G029531) 105 Cal. App.4th 75
Petition for review after reversal of judgment. Question presented: Does the Federal Arbitration Act have pre-emptive effect over state policy favoring class proceedings in arbitration disputes? If so, does such pre-emptive effect apply when a state court determines that an arbitration provision prohibiting class proceedings is unconscionable? 4/9/03

CIVIL LITIGATION
Discover Bank v. Superior Court (Boehr)
S113725 (B161305) 105 Cal.App.4th 326
Petition for review after grant of petition for writ of mandate. Question presented: Does the Federal Arbitration Act pre-empt state courts from applying state substantive law to strike arbitration agreement provisions prohibiting class actions? 4/9/03