Other June 10, 2009 actions by the California Supreme Court

After two weeks without a conference, June 10, 2009 was an active day for the California Supreme Court.  Aside from the other activity posted today, some other notable actions include:

• A Petition for Review was denied in Chindarah v. Pick Up Stix, Inc. (2009) 171 Cal. App. 4th 796 [Operation of Labor Code section 206.5]
• A depublication request was denied in Tarkington v. California Unemployment Insurance Appeals Board (Albertson’s, Inc.) (April 13, 2009) [Regarding demurrers to class action allegations]

BREAKING NEWS: Petition for Review granted in Kwikset Corporation v. Superior Court (Benson)

You may recall Kwikset Corporation v. Superior Court (Benson) (Feb. 25, 2009). That's the opinion in which the Court of Appeal (Fourth Appellate District, Divsion Three) held that if you want to buy a "Made in U.S.A." product, and you spend money to get it, and that claim was false, in violation of California law, you still don't have standing to bring a UCL suit because you weren't damaged. On June 10, 2009, in a unanimous vote, the California Supreme Court granted the Petition for Review. When this lawsuit is finally resolved, the grandchildren of the current lawyers will be representing the decendents of the parties (Benson v. Kwikset was one of the Proposition 64 cases). See this post on The UCL Practitioner for a sharp commentary about the Court of Appeal's Opinion.

An unprecedented alliance of interests fails to elicit review or depublication of Troyk v. Farmers Group, Inc.

In a potentially singular confluence of interests, all parties in Troyk v. Farmers Group, Inc., distressed that the Court of Appeal reissued its opinion despite their notice of settlement, filed a Joint Petition for Review on April 20, 2009. The 72-page opinion from the Court of Appeal (Fourth Appellate District, Division One) addresses issues of standing under the UCL, alter-ego liability and insurance service charges as premiums. The petition was filed by Coughlin Stoia Geller Rudman & Robbins for class plaintiffs, Gibson, Dunn & Crutcher and Skadden, Arps, Slate, Meagher & Flom for defendants, and Fulbright & Jaworski for third-party movants. Consumer Attorneys of California, among others, filed a letter seeking depublication on the grounds that the appellate court's ruling "threatens to upend settled law."

Despite that unholy alliance, on June 10, 2009 the Supreme Court denied the Joint Petition for Review and the Requests for Depublication.  Justices Baxter, Chin, and Corrigan were of the opinion that the petition should have been granted.  I can't say that this result offers encouragement to parties that finally work to settle their disputes.  Such polarized interests rarely agree on anything.  When they do, its a signal that careful scrutiny is in order.  However, others have suggested that if all the parties are unhappy with the result, there may be some validity to it.  (Note: The Recorder article on Law.com appears to have been authored before the Supreme Court's decision to deny the Petition was publicly available.)

Haro v. City of Rosemead confirms that "opt-in" class actions are unavailable under California's class action statute, Code of Civil Procedure section 382

In a case of flirting with issues of first impression, the Court of Appeal (Second Appellate District, Division Eight) was asked to review an order denying plaintiffs' motion for class certification pursuant to Code of Civil Procedure section 382. The plot twist? Haro v. City of Rosemead (June 9, 2009) concerns plaintiffs' attempt to certify pursuant to section 382 a claim for violation of 29 U.S.C. § 216(b), a part of the Fair Labor Standards Act of 1938 (FLSA). After concluding that FLSA claims cannot be certified under section 382 as a matter of law, the Court of Appeal dismissed the appeal.

The Court first summarized the FLSA provision at issue in the appeal:

Section 216(b) goes on to provide that an action under this provision may be brought against any employer in a federal or state court “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” The italicized sentence is colloquially referred to as an “opt-in” provision (7B Wright et al., Fed. Practice and Procedure (3d ed. 2005) § 1807, p. 472) and it is this opt-in provision that this purported appeal addresses.

(Slip op., at p. 2.) The Court then expressed the tension between the FLSA's "opt-in" procedure and the "opt-out" mechanism of California's class action statute:

As one court has put it: “There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has 'opted out' of the suit. Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively 'opted into' the class; that is, given his written, filed consent.” (LaChapelle v. Owens-Illinois, Inc., supra, 513 F.2d at p. 288, fn. omitted.)

The fact that the opt-in feature is irreconcilable with a class action has not only been reaffirmed as a matter of federal civil procedure (Whalen v. W.R. Grace & Co. (3d Cir. 1995) 56 F.3d 504, 506, fn. 3), at least one California court has held that the opt-in feature cannot be adopted in California class actions. (Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1550 (Hypertouch).)

(Slip op., at p. 3.) After concurring in the analysis supplied by Hypertouch, the Court then added yet another reason why "opt-in" class actions are not available in California:

We add to the foregoing the observation that it is no small matter that California Rules of Court, rule 3.766, which governs notice to class members, makes no provision for notice when the class members opt into, rather than out of, the class. Rule 3.766 addresses the contents of the notice and the manner of giving notice in considerable detail; notice in class actions is not a simple matter. The same is true of notice to persons “similarly situated” in FLSA actions. Evidently, there may be as many as three distinct procedures employed by federal courts in dealing with notice in FLSA cases. Some courts employ a two-step process that extends to the time that discovery is complete, others follow class action procedures and yet others have adopted the old procedures employed in the pre-1966 spurious class action cases. (Thiessen v. General Electric Capital Corp. (2001) 267 F.3d 1095, 1102-1103.) Given such disparities, it is unthinkable that if California class actions under section 382 include opt-in classes, the giving of notice in such classes would not be regulated by rule 3.766. Putting the same point more directly, given the potential complexities with notice to persons “similarly situated” in opt-in FLSA actions, the fact that rule 3.766 does not deal with opt-in notices is a very clear indication that there are no opt-in class actions in California.

(Slip op., at p. 9.) In an interesting procedural close to the opinion, the Court dismissed the appeal because it could not meet the "death knell" standard for the appeal of the denial of class certification:

First. Appellants cannot maintain their FLSA action with the opt-in feature as a class action under section 382. (Hypertouch, supra, 128 Cal.App.4th 1527, 1550.) In other words, as a matter of California law appellants are not entitled to a class action certification.

Second. Ordinarily, under the death knell doctrine the appellate court will review the merits of the decision denying certification. That is not true of this case; neither the trial court nor this court addressed the substantive merits of class action certification in this case.

Third. The order denying class certification is not the death knell of appellants‟ action. The order does not produce a terminal result, i.e., there is no reason why the action cannot go forward with appellants as plaintiffs. Specifically, there is nothing to prevent this action going forward as an opt-in, collective FLSA action. While there may or may not be issues about the statute of limitations, there is no question that this FLSA action as it is presently constituted can go forward to trial.

(Slip op., at p. 11.) In case anyone missed it, no "opt-in" class actions can be certified in California under Code of Civil Procedure section 382.

Settling in at SquareSpace

After several weeks working on a new hosting service, a few comments are in order.  First, the new appearance has changed what information is presented on each page.  I decided to work with a 2-column format.  It improves readability because text has more room to breathe.  However, the cost of that change is a limitation of what can be included in sidebar areas.

Second, every post from the prior hosting service, TypePad, has been moved over.  There are qualifiers to that statement.  When posts were copied over, I found and corrected some errors where the tile of the post was replaced with other text.  I think I fixed all of those instances, but I offer no guarantees.  Similarly, some posting dates changed.  I think I fixed those as well, but some may have fallen through the cracks.  If you find a non sequitur in historical posts, either in the title or because of a data that makes no sense, excuse it as an error in the migration tools that I used.

Because SquareSpace is so flexible, I may tinker with formatting over time, so don't be surprised if parts of the blog's appearance change and then change back with no explanation.  By the way, SquareSpace is more than a blog hosting platform.  For smaller lawfirms looking at creating or updating a stale website, you could spend a few weeks using the free test account and see what you think.

Thanks for the support.  Please enjoy the new home of The Complex Litigator.

in brief: Johnson v. Arvin-Edison Water Storage Dist. holds that governmental entities are exempt from wage & hour laws absent express statutory language to contrary

In Johnson v. Arvin-Edison Water Storage Dist. (June 3, 2009) the Court of Appeal (Fifth Appellate District) held that governmental entities are not subject to a wide array of wage & hour laws absent express legislation to the contrary.  The water district defendant was determined to be a municipal entity, thus entitled to that broad grant of immunity.

"3 Geeks and a Law Blog" (aka geeklawblog.com) collects some must read blog posts of 2009

Visit 3 Geeks and a Law Blog for a diverse list of "must read" posts of 2009 (so far, including a few of 2008's greatest hits).  The Complex Litigator is thankful for the inclusion on that list.  Most importantly, though, is the diversity of topics included on the list.  If you haven't visited 3 Geeks and a Law Blog yet, it's worth you time to visit a site self-described as: "A law blog addressing the foci of 3 intrepid law geeks, specializing in their respective fields of knowledge management, internet marketing and library sciences, melding together to form the Dynamic Trio."

You can follow the authors Lisa Salazar, Greg Lambert, and Toby Brown on Twitter:

@glambert
@lihsa
@gnawledge

Court of Appeal limits complex litigation court's ability to resolve "threshold issues" as case management tool

"A 'complex case' is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel." (Cal. Rules of Court, rule 3.400(a).) California's complex litigation pilot project Courts are charged with managing, on average, some of the more complicated civil litigation matters in California. To handle that burden, complex litigation Courts have to balance obligations imposed by rule and statute with the application of creativity in the areas where discretion and flexibility are options. In my experience, particularly in the complex litigation departments in Los Angeles, one way in which complex cases have been managed has been through the early evaluation of pivotal "threshold" legal issues that tend to give direction to such cases.

That case management technique just hit something of a snag.  The Court of Appeal (Second Appellate District, Division Five), in Magana Cathcart McCarthy v. CB Richard Ellis, Inc. (May 21, 2009) held, at least on the facts before it, that early determination of "threshold issues" is not a substitute for the summary adjudication procedural requirements:

Without filing a motion for summary judgment or mandatory separate statements of undisputed facts, and for the purpose of creating appellate review of pretrial rulings, the parties to an action in a complex litigation case stipulated that the court would have granted summary judgment based upon its ruling on certain "threshold issues" in favor of the defendant. The stipulation also included a dismissal, without prejudice, of class action allegations.

We disapprove of the unauthorized procedure utilized to create appellate review without compliance with the mandatory requirements of a summary judgment, and reverse. The requirements of a motion for summary judgment and the supporting separate statements of undisputed facts are expressly mandated by statute and court rules. In the absence of such documents, the stipulated judgment cannot stand. The convenience of the parties in a complex litigation case, and their desire to be spared the expense of a summary judgment motion, do not warrant deviation from the procedural requirements of summary judgment applicable to litigants who do not have the benefit of appearing in the complex litigation court. In addition, the stipulated judgment in this case violates an express agreement between the parties and the trial court that rulings on the threshold issues would not be a substitute for a motion for summary judgment that complies with the Code of Civil Procedure. We also conclude there is nothing about this action that warrants an exception to the foregoing rules promulgated by the Legislature and Judicial Council in a case which, in its current posture, involves a potential penalty of $500 and treble damages.

(Slip op., at p. 2.)  The majority opinion (yes, there is a dissent) spends a great deal of time reviewing the obligatory nature of the separate statement and other requirements associated with summary judgment motions or anything purporting to finally resolve matters outside the four corners of the pleadings.  In reading the opinion, I come away with the sense that there is something like contempt for the complex litigation courts, including a suggestion that the issues coming from those courts are no more difficult than those coming up for review out of standard general jurisdiction courts.  I happen to strongly disagree with that apparent sentiment; the complex courts, by virtue of their experience and creativity, make complex cases move more smoothly through the system.

The dissenting opinion is extensive.  It includes its own statement of facts and procedural background.  Part of that extensive workup appears intended to demonstrate that the record was suitable for appellate review.  In the dissent, Justice Mosk first explained why the Trial Court's procedure was permitted:

The parties stipulated to a judgment based on a pronouncement of the law by the trial court that followed legal briefing and argument by the parties. The procedure used, which did not include a demurrer, summary judgment motion, or other dispositive statutory motion, was justified as being a case management tool under the complex litigation program of the Los Angeles County Superior Court (Super. Ct. L.A. County, Local Rules, rules 7.3(h), 7.6; see Cal. Rules of Court, rule 3.400 et seq.; 3.750 et seq.; Gov. Code, § 68612; Code of Civ. Proc., § 575.1).

Although trial courts in complex cases have broad discretion to manage those cases in a manner that promotes efficiency and the conservation of judicial resources (see, e.g., Cal. Rules of Court, rules 3.400 et seq., 3.750 et seq.), that discretion is limited by countervailing interests of litigants and the public. "Reviewing courts have not hesitated to strike down local court rules or policies on the ground they are inconsistent with statute, . . . [¶] A common theme in the appellate decisions invalidating local rules . . . is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding." (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1352-1353.) Deviation from formal procedures may, in many instances, present on appeal a case without an adequate record. Therefore, statutory procedures, such as those governing summary judgment, are designed, inter alia, to provide the appellate court with a factual and analytical framework upon which there can be de novo review.

It is important to recognize that the trial court did not, in effect, depart from established summary judgment procedures because the parties entered into a stipulation in connection with those procedures; "[s]tipulations may be entered into concerning any step of an action." (Bardendregt v. Downing, supra, 175 Cal.App.2d at p. 735.) Moreover, the court did not dispense with any procedure over the objection and to the prejudice of one of the parties. Here, both parties agreed to the procedure employed by the trial court to determine the legal issues, stipulated to the entry of judgment as if it were based on an order granting summary judgment, and agreed that the ensuing judgment was appealable.

(Slip op., Dissent, at pp. 5-6.)  It's an interesting debate.  I come down on the side of permitting the complex courts to manage cases with the flexibility that has proven itself in real cases over and over again.  Despite that, I understand the majority's call for predictability of procedure in any instance where a case is summarily adjudicated.

in brief: on the "do's and don'ts" of Does in Pelayo v. J. J. Lee Management Co., Inc.

In Pelayo v. J. J. Lee Management Co., Inc. (May 28, 2009) the Court of Appeal (Second Appellate District, Division Four) offered priceless advice on Code of Civil Procedure section 474:  "In this case, we deal with the ―'do's and dont's'of Does."  (Slip op., at 2, first sentence.)  My compliments to Justice Willhite on that opening.  If you are planning on seeking a default judment against a Doe Defendant any time soon, be sure to read this opinion on a narrow matter of procedure.

In Strauss, et al. v. Horton, as State Registrar of Vital Statistics, et al., the California Supreme Court denied original writs of mandate challenging Proposition 8 (constitutionally definining valid "marriage" as being between a man and a woman)

Although it's an issue that isn't customarily within my wheelhouse, the Opinion issued by the California Supreme Court this morning is undoubtedly "complex."  As one barometer of the complexlity, the introductory comments span some twelve pages.  Most opinions get a paragraph or two to set the stage.  But after perusing the Opinion out of general curiosity, I decided that a few remarks (and a few long excerpts) are in order to press against the inevitability of mischaracterizations about what the California Supreme Court actually did and did not do in its opinion.  In other words, the more obscure the legal analysis, the more likely it is that it won't be summarized correctly.

On May 26, 2009, in Strauss, et al. v. Horton, as State Registrar of Vital Statistics, et al., the California Supreme Court denied Petitions for Original Writs of Mandate.  The Petitions challenged the validity of California Proposition 8, which added a new section to article I of the California Constitution.  That new section, section 7.5, reads in full: "Only marriage between a man and a woman is valid or recognized in California."  (Slip op., at p. 8.)  The language of section 7.5 is identical to language previously included in Proposition 22, which proposed the adoption in California of a new statutory provision, Family Code section 308.5.   Proposition 22 was approved by voters and later found to be unconstitutional by the California Supreme Court in the consolidated matter entitled In re Marriage Cases (2008) 43 Cal.4th 757.

Today's Opinion in Strauss offers some important clarifications about what the Court could and could not do in the exercise of its constitutional role:

For the third time in recent years, this court is called upon to address a question under California law relating to marriage and same-sex couples.

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), we were faced with the question whether public officials of the City and County of San Francisco acted lawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman were unconstitutional. We concluded in Lockyer that the public officials had acted unlawfully in issuing licenses in the absence of such a judicial determination, but emphasized in our opinion that the substantive question of the constitutional validity of the marriage statutes was not before our court in that proceeding.

In In re Marriage Cases (2008) 43 Cal.4th 757 (hereafter the Marriage Cases), we confronted the substantive constitutional question that had not been addressed in Lockyer — namely, the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriage statutes limiting marriage to a union between a man and a woman. A majority of this court concluded in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the protection of the constitutional right to marry embodied in the privacy and due process provisions of the California Constitution, and that by granting access to the designation of "marriage" to opposite-sex couples and denying such access to same-sex couples, the existing California marriage statutes impinged upon the privacy and due process rights of same-sex couples and violated those couples’ right to the equal protection of the laws guaranteed by the California Constitution.

Proposition 8, an initiative measure approved by a majority of voters at the November 4, 2008 election, added a new section — section 7.5 —to article I of the California Constitution, providing: "Only marriage between a man and a woman is valid or recognized in California." The measure took effect on November 5, 2008. In the present case, we address the question whether Proposition 8, under the governing provisions of the California Constitution, constitutes a permissible change to the California Constitution, and — if it does — we are faced with the further question of the effect, if any, of Proposition 8 upon the estimated 18,000 marriages of same-sex couples that were performed before that initiative measure was adopted.

In a sense, this trilogy of cases illustrates the variety of limitations that our constitutional system imposes upon each branch of government — the executive, the legislative, and the judicial.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. The federal Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the state legislatures, and requires, in either instance, that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states. (U.S. Const., art. V.) In contrast, the California Constitution provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature (Cal. Const., art. XVIII, § 1) or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election (Cal. Const., art. II, § 8, subd. (b); id., art. XVIII, § 3), and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)

(Slip op., at pp. 1-4, origial emphasis.)  The Court then explained the scope of its holding, which may prove to be somewhat different than what was sought by any of the parties:

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage" (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of "marriage" holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment. Contrary to petitioners’ claim in this regard, the measure does not transform or undermine the judicial function; this court will continue to exercise its traditional responsibility to faithfully enforce all of the provisions of the California Constitution, which now include the new section added through the voters’ approval of Proposition 8. Furthermore, the judiciary’s authority in applying the state Constitution always has been limited by the content of the provisions set forth in our Constitution, and that limitation remains unchanged.

(Slip op., at pp. 6-8.)  Although it is small consolation to the proponents of gay marriage, my reading of this Opinion is that the California Supreme Court construes the Constitutional amendment effectuated by Proposition 8 as having reserved the word "marriage" for state-recognized unions between men and women, while preserving the Marriage Cases holding that gay couples are entitled to "choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."  (Marriage Cases, supra, 43 Cal.4th at p. 829).  They just can't call it a marriage.  In other words, everybody is going to be unhappy with this decision.

While there is likely to be much commentary about what should happen in our society after this Opinion, I think that, in a difficult circumstance, the California Supreme Court correctly discharged its limited role in our government.  The Court doesn't deserve to be pilloried here, and I hope that it is not.