Almost three and a half years after granting review (and also calendar preference) and after the maximum 90 days following oral argument on the early-May calendar, the Supreme Court on Monday will file its opinion in Sanchez v. Valencia Holding Co. The court will also file its opinion in a CEQA case.
Sanchez, which has attracted a dozen amicus curiae briefs [disclosure: including one by Horvitz & Levy], raises the issue whether the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempts state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable. Additionally, the court 17 months ago invited supplemental briefing on nomenclature: “In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including ‘unreasonably favorable’ to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); ‘so one-sided as to shock the conscience’ (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); ‘unfairly one-sided’ (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; ‘overly harsh’ (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and ‘unduly oppressive’ (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925). Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one? Are there any terms the court should not use? Is there a formulation not included among those above that the court should use? What differences, if any, exist among these formulations either facially or as applied?”
The CEQA case is City of San Diego v. Board of Trustees of the California State University. Argued on the court’s late-May calendar, the case raises the issue whether a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfies its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible.
Two weeks before oral argument, the court limited the issues on review and to be argued to the first of the two issues stated in the petition for review. That issue is: “Does a state university satisfy its California Environmental Quality Act (CEQA) obligation to mitigate a project’s off-site environmental impacts when feasible by requesting mitigation funds from the Legislature? Or, must the university also address in its Environmental Impact Report (EIR) the availability of potential sources of funding other than appropriations from the Legislature and provide compelling reasons why those sources cannot be used to pay for mitigation in the event the Legislature denies the requested appropriation?”
[Disclosure: Horvitz & Levy represents the defendant.]
The opinions can be viewed Monday starting at 10:00 a.m.
