Supreme Court of California Justia

9th Circuit Questions of Certification to the California Supreme Court

Source: Hughes Hubbard & Reed LLP

Last updated September 19, 2013

9th Cir. Decision

Cal. Decision

Questions

Beeman v. Anthem Prescription Management, LLC,
Nos. 07-56692, 07-56693
, --- F.3d --- (9th Cir. June 6, 2012)

Request to answer question of state law filed, June 7, 2012 [No. S203124]

"Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question:

Does California Civil Code section 2527 compel speech in violation of article I, section 2 of the California Constitution?"

Los Angeles Unified School Dist. v. Garcia,
No. 10-55879
, 669 F.3d 956 (9th Cir. January 20, 2012)

Request for certification granted, March 28, 2012 [No. S199639]

"Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question:

Does California Education Code § 56041—which provides generally that for qualifying children ages eighteen to twenty-two, the school district where the child's parent resides is responsible for providing special education services— apply to children who are incarcerated in county jails?"

Sierra Pacific Power v. Hartford Steam Boiler Inspection and Insurance,
Nos. 09-16662, 09-16802
, 665 F.3d 1166 (9th Cir. January 5, 2012)

Request for certification denied, March 14, 2012 [No. S199196]

"Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following questions:

1. Whether, under California insurance law, a building ordinance or law exclusion, found in the Perils Exclusions section of a property insurance policy, effectively excludes coverage for increased costs caused by complying with ordinances and regulations if the underlying loss was caused by a covered peril.

2. Whether, under California insurance law, the costs of obtaining building permits or conducting required environmental impact studies are considered costs excluded by a building ordinance or law exclusion, or whether these costs are better considered as part of the replacement cost under the policy."

Hayes v. County of San Diego,
No. 09-55644
, 658 F.3d 867 (9th Cir. June 14, 2011)

Request for certification granted, August 10, 2011; Opinion, August 19, 2013 [No. S193997]

"Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question:

Whether under California negligence law, sheriff's deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him."

Orange County Dep't of Educ. v. Cal. Dep't of Educ.,
No. 09-56192
, 650 F.3d 1268, 2011
WL 1886179 (9th Cir. May 18, 2011)

Request for certification denied, July 27, 2011 [No. S193299]

"Pursuant to Rule 8.548 of the California Rules of Court, we request that the California Supreme Court answer the following question:

Whether under California law the school district responsible for the costs of a special education student's education while the student is placed at an out-of-state residential treatment facility is the district in which the student's de facto parent, who is authorized to make educational decisions on behalf of the student, resides."

2011 WL 1886179, at *1.

Doe v. Harris,
No. 09-17362
, 640 F.3d 972, 2011 WL
1226366 (9th Cir. Apr. 4, 2011)

Request for certification granted, Jun. 15, 2011, 57 Cal.4th 64 (Cal. July 1, 2013)
[No.
S191948
]

"The question of law to be answered is:

Whether, under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law."

2011 WL 1226366, at *1.

Perry v. Brown
628 F.3d 1191
(9th Cir. Jan. 4,
2011) [No. 10-16696]

Request for certification granted, Feb. 16, 2011; 52 Cal. 4th 1116 (November 17, 2011);
[No.
S189476
]
Annotation Available

"Pursuant to Rule 8.548 of the California Rules of Court, we request that the Court answer the following question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."

628 F.3d at 1193.

Retired Employees Association of Orange County, Inc.
v. County of Orange
,
610 F.3d 1099
(9th Cir. June 29,
2010) [No. 09-56026]

Request for certification granted, Aug. 18, 2010; 52 Cal.4th 1171 (Cal. Nov. 21, 2011),
[No.
S184059
]
Annotation Available

"Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, requests that the Supreme Court of California answer the following question:

Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees."

610 F.3d at 1101.

Barnes-Wallace v. Boy Scouts of America,

607 F.3d 1167
(9th Cir. June 3, 2010) [Nos. 04-55732, 04-56167]

Request for certification denied, Oct. 13, 2010
[No.
S185299
]

"We certify to the California Supreme Court the following questions:

1.  Do the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in article I, section 4 of the California Constitution?

2.  Are the leases 'aid' for purposes of the No Aid Clause of article XVI, section 5 of the California Constitution?

3.  If the leases are aid, are they benefitting a 'creed' or 'sectarian purpose' in violation of the No Aid Clause?"

607 F.3d at 1170. 

Emery v. Clark,

604 F.3d 1102
(9th Cir May 13,
2010) [No. 08-55249]

Grant of request for certification vacated, February 2, 2011
[No.
S182670
]

"We certify to the California Supreme Court the following questions of state law that are now before us, and as to which there is no controlling authority:

1. Does California's criminal street gang enhancement statute, in particular the element of "specific intent to promote, further, or assist in any criminal conduct by gang members" in California Penal Code section 186.22(b)(1), n1 require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction?  See Garcia v. Carey, 395 F.3d 1099, 1100-01, 1103-04 (9th Cir. 2005); Briceno v.  Scribner, 555 F.3d 1069, 1078-83 (9th Cir. 2009); cf. People v. Romero, 140 Cal. App. 4th 15, 19, 43 Cal. Rptr. 3d 862 (2006); People v. Hill, 142 Cal. App. 4th 770, 774, 47 Cal. Rptr. 3d 875 (2006); People v. Vazquez, 178 Cal. App. 4th 347, 353-55, 100 Cal. Rptr. 3d 351 (2009).

2. Is gang expert testimony tied to the facts of the case--regarding the centrality of "respect" in gang culture, and how the defendant's use of lethal force to avenge a minor slight to a member of an affiliated gang would enhance the "respect" he gets from other gang members, raise his status within the gang hierarchy, and teach the community not to interfere with even the most minor criminal activities of his fellow gang members--sufficient to satisfy the requirement that the murder was committed with the "specific intent to promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?  See Vazquez, 178 Cal. App. 4th at 350-51, 353-55; Hill, 142 Cal. App. 4th at 772, 774; cf. People v. Gardeley, 14 Cal. 4th 605, 612-13, 619, 59 Cal. Rptr. 2d 356, 927 P.2d 713 (1997); but see Briceno, 555 F.3d at 1078-79.

3. Does evidence that the defendant committed the attempted robbery and murder in concert with the brother of a young gang member, whom the victim allegedly "disrespected," satisfy the requirement that the crimes were committed with the specific intent to "assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?  People v. Villalobos, 145 Cal. App. 4th 310, 322, 51 Cal. Rptr. 3d 678 (2006); Romero, 140 Cal.App.4th at 19-20; People v. Morales, 112 Cal. App. 4th 1176, 1198, 5 Cal. Rptr. 3d 615 (2003); see also Briceno, 555 at 1084-86 (Wardlaw, J., dissenting); cf. Briceno, 555 F.3d at 1081, n.4."

604 F.3d at 1103-1104 (footnote omitted).  

D'Este
v. Bayer Corp.,
565 F.3d 1119
(9th Cir. May 5,
2009)

Request for certification denied, June 10, 2009
[No.
S172832
]

"The questions certified are:

1.  The Industrial Welfare Commission's Wage Orders 1-2001 and 4-2001 define 'outside salesperson' to mean 'any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.' 8 Cal. Code Regs., tit. 8, §§ 11010, subd. 2(J); 11040, subd. 2(M). Does a pharmaceutical sales representative (PSR) qualify as an 'outside salesperson' under this definition, if the PSR spends more than half the working time away from the employer's place of business and personally interacts with doctors and hospitals on behalf of drug companies for the purpose of increasing individual doctors' prescriptions of specific drugs?

2.  In the alternative, Wage Order 4-2001 defines a person employed in an administrative capacity as a person whose duties and responsibilities involve (among other things) '[t]he performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his employer's customers' and '[w]ho customarily and regularly exercises discretion and independent judgment.' Cal. Code Regs., tit. 8 § 11040, subd. 1(A)(2)(a)(I), 1(A)(2)(b).  Is a PSR, as described above, involved in duties and responsibilities that meet these requirements?"

565 F.3d at 1120-21.

Minkler v. Safeco
Insurance Co.
,
561 F.3d 1033
(9th Cir. Apr. 8,
2009) [No. 07-56689]

Request for certification granted, Aug. 12, 2009;
49 Cal.4th 315 (Cal. June 17, 2010) [No.
S174016
]

Annotation available

"We certify the following issue to the California Supreme Court:

Where a contract of liability insurance covering multiple insureds contains a severability-of-interests clause in the 'Conditions' section of the policy, does and exclusion barring coverage for injuries arising out of the intentional acts of 'an insured' bar coverage for claims that one insured negligently failed to prevent the intentional acts of another insured?"

561 F.3d at 1035.

Pooshs v. Phillip
Morris USA, Inc.
,
561 F.3d 964
(Apr. 1, 2009) [No.
08-16338]

Request for certification granted, May 20, 2009; 51 Cal. 4th 788 (Cal. May 5, 2011) [No.
S172023
]

Annotation available

"By this order we certify to the California Supreme Court for decision the dispositive questions of state law before us:

(1) Under California law, when may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights?

(2) Under California law, may two separate physical injuries-both caused by a plaintiff's use of tobacco-be considered "qualitatively different" for the purposes of determining when the applicable statute of limitations begins to run?"

561 F.3d at 966-67 (emphasis added, footnote omitted).   

Sullivan v. Oracle Corp.,
557 F.3d 979
(9th Cir. Feb. 17,
2009) [No. 06-56649]

Request for certification granted, Apr. 22, 2009; 51 Cal. 4th 1191 (Cal. June 30, 2011)
[No.
S170577
]
Annotation Available

"We certify the following questions to the California Supreme Court, corresponding to the three claims presented by the plaintiffs.

First, does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week?

Second, does § 17200 apply to the overtime work described in question one?

Third, does § 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA?"

557 F.3d at 983.

Kleffman v.
Vonage Holdings Corp.
,
551 F.3d 847
(9th Cir. Dec. 19, 2008) [Nos. 07-56171, 07-56292]

Request for certification granted, Jan. 28, 2009; 49 Cal. 4th 334 (Cal. June 21, 2010) [No.
S169195
]

Annotation available

"The question of law to be answered is:

Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under Cal. Bus. & Prof. Code § 17529.5(a)(2)?"

551 F.3d at 849 (emphasis added). 

Chaffer v. Prosper,
542 F.3d 662
(9th Cir. Sept. 2, 2008) [No. 07-16853]

Request for certification denied, Mar. 11, 2009 [No.
S166400
]

"The questions of law to be answered are:

1.  When is a state habeas petition timely filed in California courts; does the term 'substantial delay,' as described in In re Stankewitz, 40 Cal.3d 391, 396-97 n. 1, 220 Cal. Rptr. 382, 708 P.2d 1260 (1985), mean any delay that exceeds 60 days after the denial of a habeas petition by another state court, as suggested by Chavis, 546 U.S. at 200-01, 126 S. Ct. 846?

2.  If either Chaffer's state habeas petition before the California Court of Appeal or his state habeas petition before the California Supreme Court was 'substantially delayed,' was the delay justified?"

542 F.3d at 663 (emphasis added). 

Klein v. United States,
537 F.3d 1027
(9th Cir. July 30, 2008) [No. 06-55510]

Request for certification granted, Oct. 16, 2008; 50 Cal. 4th 68 (Cal. July 26, 2010) [No.
S165549
]

Annotation available

"We certify to the California Supreme Court the following question of state law that is now before us: Does California Civil Code § 846, California's recreational land use statute, immunize a landowner from liability for acts of vehicular negligence committed by the landowner's employee in the course and scope of his employment that cause personal injury to a recreational user of that land?"

537 F.3d at 1029. 

International Society for Krishna Consciousness of
California Inc. v. City of Los Angeles
,
530 F.3d 768
(9th Cir. June 9, 2008) [No. 01-56579]

Request for certification granted,  Aug. 13, 2008; 48 Cal. 4th
446
(Cal. Mar. 25, 2010) [No.
S164272
]

Annotation available

"The dispositive question of state law to be answered is: Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution?"

530 F.3d at 770 (emphasis added). 

Imperial Merchant Services, Inc. v. Hunt,

528 F.3d 1129
(9th Cir. May 12, 2008) [No. 07-15976]

Request for certification granted,  July 16, 2008; 47 Cal. 4th 381
(Cal. Aug. 10, 2009) [No.
S163577
]

Annotation available

"Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, hereby certifies to the Supreme Court of California the previously identified question of law....

II.  Question of Law to be Answered

1.  May a debt collector recovering on a dishonored check impose both a service charge under section 1719 of the California Civil Code and pre-judgment interest under section 3287 of the California Civil Code?"

528 F.3d at1130 (emphasis added).

Munson v. Del Taco, Inc.,
522 F.3d 997
(9th Cir. April 14, 2008) [No. 06-56208]

Request for certification granted,  June 25, 2008; 46 Cal. 4th 661
(Cal. June 11, 2009) [No.
S162818
]

Annotation available

"We certify to the California Supreme Court the following questions of state law that are presently before us....

1.  Must a plaintiff who seeks damages under California Civil Code section 52, claiming the denial of full and equal treatment on the basis of disability in violation of the Unruh Act, Cal. Civ. Code § 51, prove 'intentional discrimination'?

2.  If the answer to Question 1 is 'yes,' what does 'intentional discrimination' mean in this context? For example, does intentional discrimination mean:

- an intent to deny full and equal treatment;

- an intent to act (or not act) in a way that the actor is aware will fail to provide full and equal treatment;

- an intent to violate the ADA;

- an intent not to remove barriers to access-in other words, to maintain the current architectural layout;

- that, as defined by Judicial Council of California Civil Jury Instruction ('CACI') 3020, disability was a 'motivating reason' in denying full and equal treatment; or

- deliberate indifference to whether the actor's conduct will provide full and equal treatment?"

522 F.3d at 999 (emphasis added). 

Murray v. Alaska Airlines, Inc.,
522 F.3d 920
(9th Cir. Apr. 10, 2008) [No. 06-15847]

Request for certification granted,  June 18, 2008; 50 Cal.4th 860 (Cal. Aug. 23, 2010) [No.
S162570
] 

Annotation available

"Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, requests that the Supreme Court of California answer the following question:

Should issue-preclusive effect be given to a federal agency's investigative findings, when the subsequent administrative process provides the complainant the option of a formal adjudicatory hearing to determine the contested issues de novo, as well as subsequent judicial review of that determination, but the complainant elects not to invoke his right to that additional process?"

522 F.3d at 920. 

Sprint PCS Assets, L.L.C. v. City of Palos Verdes
Estates
,
508 F.3d 897
(9th Cir. Nov. 16, 2007) [No. 05-56106]

Request for certification denied, Jan. 3, 2008
[No.
S152481
]

"[W]e again certify to the Supreme Court of California the question of whether the California Public Utilities Code §§ 7901 and 7901.1 permit public entities to regulate the placement of telephone equipment in public rights of way on aesthetic grounds."

508 F.3d at 898.

Fantasyland Video, Inc. v. County of San Diego,

496 F.3d 1040
(9th Cir. Aug. 7, 2007) [No. 05-56026]

Request for certification denied, Sept. 25, 2007
[No.
S155408
]

"Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, requests that the Supreme Court of California answer the following question:

Under the California Constitution's liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?"

496 F.3d at 1040. 

Sentry Select Ins. Co. v. Fidelity & Guaranty
Insurance Co.
,
455 F.3d 956
(9th Cir. July 14, 2006) [No. 04-56265]

Request for certification granted, Aug. 23, 2006;
46 Cal. 4th
204
(Cal. May 4, 2009) [No.
S145087
]

Annotation available

"The panel therefore respectfully requests that the Supreme Court of California answer the certified question below and provides the following statement of facts and explanation: ...

What is the appropriate test for determining whether an insured is 'engaged in the business of renting or leasing motor vehicles without operators' under California Insurance Code § 11580.9(b)? . . . "

455 F.3d at 956. 

Readylink
Healthcare v. Lynch,
440 F.3d 1118
(9th Cir. Mar. 14, 2006) [No. 04-55890]

Request for certification denied, May 17, 2006
[No.
S141869
]

"II. 
QUESTION OF LAW . . .

The question of law to be decided is:

Does the California Supreme Court's decision in Gates v. Discovery Communications, Inc., 34 Cal. 4th 679, 21 Cal. Rptr. 3d 663, 101 P.3d 552 (2004), cert. denied, --- U.S. ----, 126 S. Ct. 368, 163 L. Ed.2d 77 (2005), overturning Briscoe v. Reader's Digest Association, Inc., 4 Cal. 3d 529, 93 Cal. Rptr. 866, 483 P.2d 34 (1971), and finding no invasion of privacy, under the First Amendment, in the publication of facts about past crimes obtained from public records, apply only to publication by media defendants?  Can there be liability under an invasion of privacy theory where a nonmedia defendant, with a commercial interest in or a malicious motive for publishing facts about a plaintiff's past crimes, does so?  Under the commercial speech doctrine, is the speech of a non-media defendant with a commercial interest in or malicious motive for publishing facts entitled to less protection under the First Amendment than that of a media defendant?"

440 F.3d at 1119 (emphasis added).

Grisham v. Philip Morris U.S.A.,
403 F.3d 631
(9th Cir. Mar. 29, 2005) [No. 03-55780]

Request for certification granted, Aug. 10, 2005;

40 Cal. 4th 623
(Cal. Feb. 15, 2007) [No.
S132772
]
Annotation Available

"II.  QUESTION OF LAW

By this order we certify to the California Supreme Court for decision the dispositive questions of state law before us:

(1)  Under California law, can a plaintiff overcome the presumed awareness that he or she knows that smoking causes addiction and other health problems, and so show justifiable reliance?

(2)  Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does an action for personal injury accrue when the plaintiff recognizes that he or she is addicted to tobacco, if the plaintiff has not yet been diagnosed with an injury stemming from tobacco use?"

403 F.3d at 633 (emphasis added).

Philadelphia Indem.
Insurance Co. v. Findley
,
395 F.3d 1046
(9th Cir. Jan. 13, 2005) [Nos. 03-56651, 03-56652]

Request for certification granted, Mar. 2, 2005;

40 Cal. 4th 151
(Cal. Dec. 7, 2006) [No.
S130717
]

Annotation available

"II.  QUESTION OF LAW . . .

The question of law to be decided is:

Does the duty of an insurer to investigate the insurability of an insured, as recognized by the California Supreme Court in Barrera v. State Farm Mut. Auto. Ins. Co., 71 Cal. 2d 659, 79 Cal. Rptr. 106, 456 P.2d 674 (1969), apply to an automobile liability insurer that issues an excess liability insurance policy in the context of a rental car transaction?"

395 F.3d at 1048 (emphasis added).

California ex rel. RoNo,
LLC v. Altus Finance S.A.
,
344 F.3d 920
(9th Cir. Sept. 15, 2003) [No. 02-56038]

Request for certification granted, Jan. 14, 2004;
36 Cal.
4th 1284
(Cal. Aug. 15, 2005) [No.
S119046
]

Annotation available

"II.  QUESTIONS OF LAW

The questions of law we wish to be answered are:

A.  Can the Attorney General pursue civil remedies, under the California False Claims Act, Cal. Gov't Code § 12650 et seq., and the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., concerning the assets of an insolvent insurance company for which the Insurance Commissioner is acting as conservator or liquidator, or does the California Insurance Code, particularly section 1037, give exclusive authority to the Insurance Commissioner to bring civil actions?

B.  Do assets to which the California Insurance Commissioner acquires title from an insolvent insurance company under California Insurance Code section 1101 constitute 'state funds' within the meaning of the California False Claims Act, Cal. Gov't Code § 12650(b)(1)?"

344 F.3d at 922-23 (emphasis added).

Kremen v.
Cohen
,
325 F.3d 1035
(9th Cir. Jan. 22, 2003) [No. 01-15899]

Request for certification denied, Feb. 25, 2003
[No.
S112591
]

"The question of law to be answered is:

Is an Internet domain name within the scope of property subject to the tort of conversion?

(a)  For the tort of conversion to apply to intangible property, is it necessary that the intangible property be merged with a document or other tangible medium?

(b)  If the answer to Question (a) is 'yes,' does the tort of conversion apply to an Internet domain name, or, more specifically, is an Internet domain name merged with a document or other tangible medium?"

325 F.3d at 1038 (emphasis added).

Tipton-Whittingham v.
City of Los Angeles
,
316 F.3d 1058
(9th Cir. Jan. 21, 2003) [Nos. 01-56991, 01-57016]

Request for certification granted, Jan. 21, 2003;
34 Cal.
4th 604
(Cal. Dec. 2, 2004) [No.
S112943
]

Annotation available

"II.  Questions of Law to be Answered ....

A.  Under California law, may attorneys' fees as provided for in California Code of Civil Procedure § 1021.5 and the California Fair Employment and Housing Act ('FEHA') § 12965(b) be awarded where the plaintiff has been the 'catalyst' in bringing about the relief sought by the litigation?

B.  If the catalyst theory is viable under California law, will that theory support an award of attorneys' fees where the plaintiff 'activates' the defendant to modify his behavior?  See Maria P. v. Riles, 43 Cal. 3d 1281, 1291-92, 240 Cal. Rptr. 872, 743 P.2d 932 (1987) (citations omitted).  Or, does California law require a judicially recognized change in the legal relationship between the parties, such as a judgment on the merits, a consent decree, or a judicially-ordered settlement?"

316 F.3d at 1060 (emphasis added).

Southern California Edison v. Lynch,
307 F.3d 794
(9th Cir. Sept. 23, 2002) [Nos. 01-56879, 01-56993]

Cal. granted certification, restated one of the
questions, and added a question of its own for supplemental briefing, Nov. 20,
2002; 31 Cal.
4th 781
(Cal. Aug. 21, 2003) [No.
S110662
]
Annotation Available

"II.  Questions of Law to be Answered

1.  Does the stipulated judgment approved by the district court violate § 368 of Assembly Bill 1890 (Act of September 23, 1996, 1996 Cal. Legis. Serv. 854, codified in Cal. Pub. Util.Code §§ 330-398.5)?

2.  Do the procedures employed in entering the stipulated judgment violate the Bagley Keene Open Meeting Act, Cal. Gov't Code §§ 11120-11132.5?

3.  Does the stipulated judgment violate § 454 of the Public Utilities Code by altering utility rates without a public hearing and the issuance of findings?"

307 F.3d at 814-15 (emphasis added).

Friery v. Los
Angeles Unified School District
,
300 F.3d 1120
(9th Cir. Aug. 22, 2002) [No. 01-56016]

Request for certification denied, Nov. 13, 2002
[No.
S109751
]

"The questions of law to be answered are:

1.  Does a school district 'discriminate or grant preferential treatment on the basis of race,' within the meaning of Article I, Section 31(a) of the California Constitution, when it implements a policy that forbids teachers from transferring between schools where such a transfer would push the ratio of white to nonwhite faculty at the destination school beyond a prescribed balance?

(a)  If the answer to Question 1 is 'yes,' is such a policy nonetheless permissible under Article I, Section 31(a) if the school district adopts it in furtherance of its affirmative duty under the California Constitution to remedy de facto segregation?

(b) If the answer to Question 1 is 'yes,' is such a policy nonetheless permissible under Article I, Section 31(a) if it gives a school district administrator discretion to depart from the racial balancing requirement for certain race-neutral reasons?

2.  Does a policy promulgated as part of a school district's constitutionally mandated desegregation program fall within the 'court order' exception of Article I, Section 31(d) of the California Constitution if the pertinent court order (a) approves, with modifications, the overall desegregation program as compliant with the district's constitutional duty; (b) does not mention the specific policy in question; and (c) otherwise terminates court supervision over the district's desegregation efforts?  If so, do subsequent amendments to such a policy also fall within the 'court order' exception if they are promulgated unilaterally, without court instruction, imprimatur, or involvement, and ratified or re-ratified after the effective date of Article I, Section 31?"

300 F.3d at 1121-22 (emphasis added).

Cadence Design Systems, Inc. v. Avant! Corp.,

253 F.3d 1147
(9th Cir. June 11, 2001) [Nos. 99-17648, 99-17649]

Request for certification granted, Oct. 31, 2002;
29 Cal.
4th 215
(Cal. Nov. 21, 2002) [No.
S098266
]

Annotation available

"Pursuant to Rule 29.5 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, certifies to the California Supreme Court a question of law concerning claims arising under California's Uniform Trade Secret Act, Cal. Civ. Code § 3426. * * *

The question certified is:

Under the California Uniform Trade Secrets Act ('UTSA'), Cal. Civ. Code § 3426, when does a claim for trade secret infringement arise:  only once, when the initial misappropriation occurs, or with each subsequent misuse of the trade secret?"

253 F.3d at 1148 (emphasis added).

Bunney v.
Mitchell
,
249 F.3d 1188
(9th Cir. May 10, 2001) [No. 00-15432]

Request for certification denied, Aug. 8, 2001
[No.
S097486
]

"The question for which we seek certification is:

When is the summary denial of a petition for habeas corpus by the California Supreme Court 'final':  when filed, 30 days after filing, or at some other time?

This action was dismissed as untimely by the United States District Court for the Northern District of California.  The answer to the foregoing question of law is necessary for this court to determine whether Petitioner Marcia Ellen Bunney's federal-court petition for a writ of habeas corpus was timely."

249 F.3d at 1188-89 (emphasis added).

Myers v. Phillip Morris Cos.,
239 F.3d 1029
(9th Cir. Feb. 14, 2001) [No. 99-17383]

Request for certification granted, Mar. 21, 2001;
28 Cal.
4th 828
Aug. 5, 2002 [No.
S095213
]

Annotation available

"The question of law to be answered is:

Do the amendments to Cal. Civ. Code § 1714.45 that became effective on January 1, 1998, apply to a claim that accrued after January 1, 1998, but which is based on conduct that occurred prior to January 1, 1998?"

239 F.3d at 1030 (emphasis added).

Marin Tug & Barge, Inc. v. Westport Petroleum,
Inc
.,
238 F.3d 1159
(9th Cir. Jan. 18, 2001) [No. 99-17154]

Request for certification denied, May 23, 2001
[No.
S095067
]

"The question of law to be answered is:

Is it 'wrongful' for purposes of the tort of intentional interference with prospective economic advantage for a defendant in a civil lawsuit to refuse to deal with the plaintiff in that suit when the following circumstances exist: (1) the refusal to deal precludes not only business between the plaintiff and the defendant but also a substantial amount of business between the plaintiff and third parties who do business with the defendant; (2) the refusal to deal is intended to coerce the plaintiff to abandon or settle the lawsuit; and (3) the defendant has sufficient economic power that the refusal to deal could indeed have that effect?"

238 F.3d at 1160 (emphasis added).

In re Renovizor's, Inc.,
236 F.3d 518
(9th Cir. Jan. 3, 2001) [No. 99-15827]

Request for certification denied, Feb. 28,
2001[No.
S094152
]

"The question of law to be answered is:

Under California law, must civil tax fraud be proved by clear and convincing evidence or instead by a preponderance of the evidence?"

236 F.3d at 519 (emphasis added).

Nordyke v.
King
,
229 F.3d 1266
(9th Cir. Sept. 12, 2000) [No. 99-17551]

Request for certification granted, Nov. 15, 2000;
27 Cal.
4th 875
(Cal. Apr. 22, 2002) [No.
S091549
]

"The question of law to be answered is:

1.  Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property?"

229 F.3d at 1267 (emphasis added).

Great Western Shows, Inc. v. Los Angeles County,

229 F.3d 1258
(9th Cir. Sept. 12, 2000) [No. 99-56605]

Request for certification granted, Nov. 15, 2000;
27 Cal.
4th 853
(Cal. Apr. 22, 2002) [No.
S091547
]

Annotation available

"The questions of law to be answered are:

1.  Does state law regulating the sale of firearms and gun shows preempt a municipal ordinance prohibiting gun and ammunition sales on county property?

2.  May a county, consistent with Article 11, § 7 of the California Constitution, regulate the sale of firearms on its property located in an incorporated city within the borders of the county?"

229 F.3d at 1260 (emphasis added).

Blue Ridge Ins. Co. v. Jacobsen,
197 F.3d 1008
(9th Cir. Nov. 29, 1999) [No. 98-55052]

Request for certification granted, Jan. 19, 2000;
25 Cal.
4th 849
(Cal. May 10, 2001) [No.
S083934
]
Annotation Available

"II.  Question of Law to be Answered

Whether an insurer defending a personal injury suit under a reservation of rights may recover settlement payments made over the objection of the insured when it is later determined that the underlying claims are not covered under the policy."

197 F.3d at 1009 (emphasis added).

Ventura Group Ventures, Inc. v. Ventura Port
Dist.
,
179 F.3d 840
(9th Cir. June 28, 1999) [No. 97-55269]

Request for certification granted, Oct. 20, 1999;
24 Cal.
4th 1089
(Cal. Feb. 15, 2001) [No.
S080112
]
Annotation Available

"II.  Questions of Law to be Answered

1.  Does Article XIII A of the California Constitution (adopted in 1978 by statewide initiative as Proposition 13) prohibit a county from levying property taxes, in excess of the one percent limit, pursuant to California Harbors and Navigation Code § 6361 to pay a money judgment as required by California Government Code §§ 970-971?

2.  Does a port district created pursuant to California Harbors and Navigation Code § 6210 have independent authority to impose assessments under California Harbors and Navigation Code § 6365(d)(2) in order to raise the funds needed to satisfy a judgment obtained against it?"

179 F.3d at 841 (emphasis added).

In re KF Dairies, Inc. & Affiliates,

179 F.3d 1226
(9th Cir. June 14, 1999) [No. 97-55941]

Request for certification denied, July 28, 1999
[No.
S079771
]

"We find that questions of state law may be determinative of the above-captioned claim.  Therefore, pursuant to Rule 29.5 of the California Rules of Court, we certify the following question to the California Supreme Court:

Where the state seeks recovery for damage to state-owned groundwater contained within certain property, does the property owner's comprehensive general liability policy provide coverage if the damage occurred within the policy period, but the insured purchased the property after the policy period (although before the state made its claim)?"

179 F.3d at 1226 (emphasis added).

Vu v. Prudential Property & Cas. Ins. Co.,
172 F.3d 725
(9th Cir. Apr. 19, 1999) [No. 98-55540]

Request for certification granted, July 28, 1999;
26 Cal.
4th 1142
(Cal. Nov. 5, 2001) [No.
S078271
]

Annotation available

"Question of Law to be Answered

Where an insured presents a timely claim to his insurer for property damage under a policy, and the insurer's agent inspects the property but does not discover the full extent of covered damage, does California Insurance Code § 2071 bar a claim brought by the insured more than one year after the damage was sustained but within one year of his discovery of the additional damage?  Or, to put the matter differently, does Neff v. New York Life Ins. Co., 30 Cal. 2d 165, 180 P.2d 900 (1947), remain good law?"

172 F.3d at 727 (emphasis added).

Asmus v. Pacific
Bell
,
159 F.3d 422
(9th Cir. Oct. 23, 1998) [No. 97-16236]

Request for certification granted, Mar. 9, 1999;
23 Cal.
4th 1
(Cal. June 1, 2000) [No.
S074296
]
Annotation Available

"II.  Question of Law to be Answered

Once an employer's unilaterally adopted policy-which requires employees to be retained so long as a specified condition does not occur-has become a part of the employment contract, may the employer thereafter unilaterally rescind the policy, even though the specified condition has not occurred?"

159 F.3d at 424 (emphasis added).

Los Angeles Alliance For Survival v. City of Los
Angeles
,
157 F.3d 1162
(9th Cir. Sept. 15, 1998) [No. 97-56742]

Request for certification granted, Nov. 4, 1998;
22 Cal.
4th 352
(Cal. Mar. 2, 2000) [No.
S073451
]
Annotation Available

"II.  Question of Law to be Answered

Is an ordinance that seeks to regulate the time, place and manner of solicitation of money or other thing of value or the sale of goods or services content based under the Liberty of Speech Clause of the California Constitution?  Cal. Const. art. I, § 2."

157 F.3d at 1163 (emphasis added).