Death penalty, excess insurance opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in People v. Nadey and Truck Insurance Exchange v. Kaiser Cement. (Briefs here; oral argument videos here and here.)

Nadey is an automatic direct appeal from an April 2000 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in February 2006. Briefing was completed in January 2015.

When the court granted review in Truck Insurance in April 2022, it limited the issue to: “May a primary insurer seek equitable contribution from an excess insurance carrier after the primary policy underlying the excess policy has been exhausted (vertical exhaustion), or is equitable contribution from an excess insurance carrier available only after all primary policies have been exhausted (horizontal exhaustion)?” More about the case here.

These will be the second and third of six opinions for cases argued in April. The opinions in the three other cases are expected by July 1. Additional argued but undecided cases are the nine on the early-May calendar (opinions expected by August 5), the nine on the late-May calendar (opinions expected by August 19, except for the opinion in Castellanos v. State of California, which, because of post-argument briefing, isn’t expected until August 29), and the seven on the June calendar (opinions expected by August 29).

The Nadey and Truck Insurance opinions can be viewed Monday starting at 10:00 a.m.

Supreme Court adds arbitration, Coastal Commission cases to its docket [Updated with grant-and-hold dispositions] [Updated with review-granted issues]

Yesterday’s Supreme Court conference dealt with an unusually large number of cases, even for the double conference that it was. Notable actions included:

There were three multi-justice dissents from denials of review. Two included separate explanatory statements:

  1. Three votes for review, and a dissenting statement, in juvenile coerced plea case
  2. Two votes for review, and a dissenting statement, in youth-offender LWOP no-parole case

A third case concerned domestic violence torts. (See below.)

Fee failure forfeit of arbitration. The court granted review in Hohenshelt v. Superior Court, an employment retaliation case that was headed to arbitration until the defendant employer delayed paying fees to the arbitration provider. The plaintiff employee unsuccessfully sought a trial court order allowing him to withdraw from arbitration and proceed in court, but the Second District, Division Eight, Court of Appeal, in a 2-1 published opinion, granted relief based on Code of Civil Procedure section 1281.98(a)(1), applicable to employment and consumer arbitrations, that provides if “the drafting party” is required to pay arbitration fees, but doesn’t do so “within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” The arbitration provider had extended the due date, but, quoting the Second District, Division Two, decision in Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Division Eight said, “ ‘There is no escape hatch for companies that may have an arbitrator’s favor. Nor is there a hatch for an arbitrator eager to keep hold of a matter.’ ” Division Eight also rejected, as had the Gallo court, the argument that the Federal Arbitration Act preempts section 1281.98. The preemption issue is what attracted the dissent’s attention. Writing that “California law over the last few decades . . . has not been a friend of arbitration,” the dissent said, “By again putting arbitration on the chopping block, this statute invites a seventh reprimand from the Supreme Court of the United States.” There was no petition for review in Gallo.

[June 14 update: Here’s the issue as summarized by court staff — “Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.) preempt state statutes prescribing the procedures for paying arbitration fees and providing for forfeiture of the right to arbitrate if timely payment is not made by the party who drafted the arbitration agreement and who is required to pay such fees?”]

Coastal Commission jurisdiction. The court also agreed to hear Shear Development Co. v. California Coastal Commission. The Coastal Commission appealed to itself a county’s grant of a coastal development permit for construction of three single family homes, and it then denied the permit. An unpublished opinion by the Second District, Division Six, held the Commission’s limited appellate jurisdiction was properly invoked because the permit approved a development located in a Sensitive Coastal Resource Area. It also concluded that the Commission did not abuse its discretion in denying the development permit.

[June 14 update: Here’s the issue as summarized by court staff — “What standard of review applies to a decision by the California Coastal Commission asserting appellate jurisdiction under Public Resources Code section 30603, where such jurisdiction depends on the Coastal Commission’s disagreement with a local government’s interpretation of its local coastal program?”]

Sexual abuse evidence. The court granted review in S.M. v. Superior Court and remanded the case to the Second District, Division Five, which had summarily denied a writ petition. Division Five is directed to decide the petition on its merits. The case alleges sexual abuse of a 12-year-old at school, and the writ petition challenges a superior court ruling that would allow evidence at trial of other abuse subsequent to the subject abuse. The petition concerns Evidence Code sections 1106 and 783, and the Supreme Court’s decision in Doe v. Superior Court (2023) 15 Cal.5th 40 (see here), which concluded that a superior court ruling allowing subsequent-abuse evidence “left [the plaintiff] in danger of what [section 783] was designed to avoid — unjustified and uncircumscribed intrusion into her privacy in the immediate presence of the jury.” Here are the petition for review, the answer to the petition, and the reply to the answer.

Even more Riverside ICWA grant-and-holdsIn re C.B. and In re L.G. are two more grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See herehereherehere, and here.) The unpublished opinions in C.B. and L.G., both 2-1 decisions, held there is no such duty of inquiry when a child is taken into custody under a protective custody warrant.

Another COVID insurance grant-and-hold. Brooklyn Restaurants, Inc. v. Sentinel Insurance Co. is another grant-and-hold for John’s Grill, Inc. v. The Hartford Financial Services Group, Inc., where the court is expected to address: (1) Is a grant of coverage for property loss or damage to covered property caused by a virus rendered illusory where it is limited by a condition that makes coverage applicable only if the virus is the result of one or more of a number of listed causes? (2) Is a conditional grant of coverage for property loss or damage to covered property caused by a virus, including the cost of removal of the virus, triggered by cleaning surfaces in the covered property that are contaminated by the virus in the absence of physical alteration of the property? John’s Grill was argued last month. (Video here.) In Brooklyn Restaurants, the Fourth District, Division One, in a belatedly published opinion, held that “a unique [policy] provision, specifically covering losses attributable to a virus” made this “one of those rare cases where . . . an insured has adequately alleged a direct physical loss or damage under the subject policy, at least raising the specter of coverage under that policy.” In another COVID insurance case, Another Planet Entertainment, LLC v. Vigilant Insurance Co., the court recently ruled for the insurance carrier. (See here.)

Domestic violence tort. The court denied review in M.A. v. B.F., but Justices Liu and Evans recorded dissenting votes. In a 2-1 published opinion, the Fourth District, Division Three, framed the issue: “whether a relationship characterized in modern parlance — and by the plaintiff in this case — as ‘friends with benefits’ constitutes a dating relationship under Family Code section 6210, so as to support a tort claim for domestic violence.” (Link added.) The issue arose in a lawsuit seeking damages for domestic violence and sexual battery. The majority found substantial evidence supported the superior court finding of no dating relationship, a finding that led to a defense judgment. The dissent claimed “[t]he majority’s opinion, in effect, raises the bar for domestic violence victims by narrowly construing the definition of a ‘dating relationship.’ ”

Criminal case grant-and-holds. There were five criminal case grant-and-holds:  one more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), one more waiting for People v. Emanuel (see here), two more on hold for People v. Lopez (see here), and one more waiting for In re Hernandez (see here).

Grant-and-hold dispositions (see here). There were 31 grant-and-holds that the court dumped. This post will be updated with details later.

[Update: All 31 were holding for the March decision in People v. Hardin (2024) 15 Cal.5th 834 (see here). One was also holding for last December’s decision in People v. Rojas (2023) 15 Cal.5th 561 (see here). Of the 31, the court dismissed review in 29 and sent two back to the Courts of Appeal for reconsideration in light of the Hardin opinion. One of the review dismissals was specifically “without prejudice to any relief that may be available for claims of racial disparities in sentencing.”]

Two votes for review, and a dissenting statement, in youth-offender LWOP no-parole case

Justices Goodwin Liu and Kelli Evans recorded dissenting votes from yesterday’s denial of review in People v. Powell, and Justice Evans filed a separate statement, joined by Justice Liu.

The First District, Division Five, Court of Appeal, in an unpublished opinion, rejected a constitutional attack on the statute barring possible youth offender parole for those defendants who are convicted of special circumstances murder — committed when they were between 18 and 25 years old — and sentenced to life without parole.  Parole is available to, among others, defendants sentenced to life without parole for murders committed before they turn 18 and defendants sentenced to 25 years to life for crimes, including first degree premeditated murder, committed when they were under 26 years old.

The Supreme Court upheld the statutory scheme against an equal protection challenge in People v. Hardin (2022) 84 Cal.App.5th 273 (2024) 15 Cal.5th 834. (See here.) But Justice Evans and Liu, who both dissented in Hardin, said there remain “serious” unanswered questions to resolve: “first, whether excluding youthful offenders from the youth offender parole eligibility scheme constitutes cruel or unusual punishment under the California Constitution, and second, whether the LWOP exclusion constitutes cruel or unusual punishment by disproportionately impacting young African Americans, like Powell, and other young people of color.”

Justice Evans pointed out that the California Constitution “prohibition against cruel or unusual punishment is distinct from the federal constitution’s prohibition against cruel and unusual,” that the distinction “is purposeful and substantive,” and that the high courts in three other states with similar provisions “recently held their state constitutions prohibited imposing an LWOP sentence on youthful offenders who were over 17 years old.”

Division Five did not reach the argument that an LWOP sentence for African Americans is cruel or unusual punishment because it is disproportionate under the Racial Justice Act. The appellate court said “Powell cannot make a RJA claim in this appeal” because his appeal was from a post-judgment motion, but could raise his argument by other procedures. Justice Evans said the Supreme Court should “grapple” with the issue now. “[S]tatistical evidence showing the imposition of mandatory LWOP sentences on emerging adults disparately impacts youth of color may demonstrate the sentence is arbitrary and capricious and thus ‘cruel or unusual,’ in violation of our state constitution,” she wrote.

Justice Evans also reiterated the call she made in her Hardin dissent for “ ‘the Legislature to correct itself by ridding [the statutory] LWOP exclusion and extending youth offender parole eligibility to all individuals who were convicted in their youth.’ ”

Historical Society program on the Pantages rape trials

The California Supreme Court Historical Society will soon present a webinar, “The Alexander Pantages Rape Trials: The Death(?) of a Doctrine that Set an Alleged Rapist Free.”

Loyola Law School Professor Laurie Levinson will introduce the June 26 noontime program, which will feature legal historian and Society board member John Caragozian and Contra Costa County Deputy District Attorney Kate Jewett.

Caragozian published a Daily Journal column (reprinted here) about the statutory rape case against famed theater owner Alexander Pantages, including the divided California Supreme Court decision (People v. Pantages (1931) 212 Cal. 237) that overturned his conviction and led to a new trial at which he was acquitted. In reversing, the court held “the prior unchastity of the prosecutrix” is admissible in a statutory rape case “when force and violence are claimed to have been used in the commission of the offense.” (Id. at p. 277.)

Registration for the program is here.

“Elimination of bias” MCLE credit is available. The program is free to all, except there’s a $25 fee for non-Society members who want MCLE credit.

Three votes for review, and a dissenting statement, in juvenile coerced plea case

The Supreme Court denied review in In re A.G. yesterday, but just barely. Justices Goodwin Liu, Joshua Groban, and Kelli Evans recorded votes to hear the case and they all signed a separate statement by Justice Liu.

A 2-1 unpublished opinion by the Second District, Division Five, Court of Appeal rejected the argument that a juvenile had been coerced into pleading no contest to a robbery charge. Justice Liu wrote, “The sequence of events in this case supports A.G.’s claim that after being detained for 24 days despite a pre-plea report recommending his release, he did not enter his plea voluntarily. Even after reading the report recommending A.G.’s release, the court inexplicably denied release until after A.G. entered his plea, even though nothing had changed. The upshot is that A.G. now has a strike offense, despite some evidence of his minimal involvement in the crime and no prior delinquency history.”

Significantly, the dissenting statement also cited Los Angeles Times articles about the place where A.G. was detained. It was “one of two Los Angeles juvenile hall facilities that has been found unsuitable for detaining minors,” the statement reported. And, the statement added, “Numerous Los Angeles probation officers were recently placed on leave based on allegations of doing exactly what A.G.’s counsel reported — allowing or encouraging detained children to assault one another — and a video of such an incident has been released.”

On the other hand, the Division Five majority stated, “As for A.G.’s contention that his concern about his safety while housed at juvenile hall coerced his no contest plea, the juvenile court stated it was very concerned about A.G.’s safety and could ‘direct probation to keep [A.G.] housed separately for a period of time’ or order probation to house A.G. at the Hope Center. A.G. did not request either solution, and instead pressed for his immediate release. After A.G. pleaded no contest and was released from detention and thus no longer subject to threats at juvenile hall, he did not file a motion to withdraw his plea as having been coerced by the alleged threats.”

A new list of old cases

Six months ago, we identified the ten oldest cases on the Supreme Court’s docket, other than death penalty appeals. Now that oral arguments are finished for the term (there won’t be another calendar until September), we’re updating the list. This time, however, we’re not including undecided cases that have already been argued.

To identify the top 10 lingerers, we looked for the matters with the lowest case numbers on the court’s pending issues summaries. They are:

  1. Still at the top of the list is People v. Kopp. The court granted review over four years ago, in November 2019, and it limited the issues to:  “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments?  If so, which party bears the burden of proof regarding defendant’s inability to pay?” Party briefing was completed in January 2021. Amicus briefing was completed in December 2021. (Horvitz & Levy is co-counsel for amicus UC Irvine law school’s Consumer Law Clinic.) A December 2022 docket entry notes that a justice is recused, but it doesn’t say who. The latest docket entries, in October 2023, show a defense motion — and the People’s response to the motion — to stay the appeal and for a limited remand or, in the alternative, for calendar preference. There’s been no ruling on the motion. The court hasn’t even sent an oral argument letter yet. More about the case here.
  2. Taking Offense v. State of California — the court granted review in November 2021. The issue, as summarized by court staff, is: Did the Court of Appeal err in declaring the provision of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights (Health & Saf. Code, § 1439.51) that criminalizes the willful and repeated failure to use a resident’s chosen name and pronouns unconstitutional on its face under the First Amendment? Party briefing was initially completed in June 2022, but the court ordered supplemental briefing in May 2023 about “[w]hether California recognizes a common law taxpayer standing doctrine to bring actions against state officials” and, if so, “whether the plaintiff in this case has established any such standing.” Amicus briefing was completed in September 2022. The supplemental briefing was completed in August 2023. The court sent an oral argument letter in December of last year, but the case might not be calendared until this coming November at the earliest because the court has found good cause for one attorney’s request not to set the case for argument in September or October. More about the case here and here.
  3. People v. Faial — the court granted review in May 2022. The issue, as summarized by court staff, is: Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively to a defendant, serving a suspended-execution sentence, whose probation was revoked before the law went into effect? Briefing was completed in October 2022. In October 2023, the court denied an application (filed more than six months earlier) and a motion (filed 16 months earlier) for a limited remand. No oral argument letter has been sent. More about the case here.
  4. Rodriguez v. FCA US, LLC — the court granted review in July 2022. The issue, as summarized by court staff, is: Is a used vehicle that is still covered by the manufacturer’s express warranty a “new motor vehicle” within the meaning of Civil Code section 1793.22, subdivision (e)(2), which defines “new motor vehicle” as including a “motor vehicle sold with manufacturer’s new car warranty”? Party briefing was completed in May 2023. Responses to amicus briefs were filed in August 2023. Horvitz & Levy is appellate counsel for the defendant in Rodriguez. No oral argument letter has been sent. More about the case here.
  5. Los Angeles Police Protective League v. City of Los Angeles — the court granted review in August 2022 and limited the issues on review to: “(1) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), constitute improper viewpoint discrimination in violation of the First Amendment? (2) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), impose an impermissible burden on the ability to file, or on the City to accept, police misconduct complaints? (3) Is it error to compel the City to comply with a statute that has been ruled unconstitutional by the United States Court of Appeals for the Ninth Circuit?” Party briefing was completed in February 2023. The response to amicus briefs was filed in May 2023. A supplemental amicus brief was filed three days ago. An oral argument letter was sent in March 2024. More about the case here.
  6. Association of Deputy District Attorneys for Los Angeles County v. Gascón — the court granted review in August 2022. The issues, as summarized by court staff, are: (1) Does the Three Strikes law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12) violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act? Party briefing was completed in March 2023. Responses to amicus briefs were filed in June 2023. Horvitz & Levy filed one of the amicus briefs in the case, supporting the plaintiff Association. No oral argument letter has been sent. More about the case here, here, and here.
  7. JJD-HOV Elk Grove, LLC v. Jo-Ann Stores, LLC — this one wasn’t supposed to be on the list because it was on the June calendar, but it was continued at the last moment. The court granted review in October 2022. The issues, as summarized by court staff, are: (1) What analytical framework should be applied in determining the enforceability of co-tenancy provisions in retail lease agreements? (2) Did the Court of Appeal correctly determine that the co-tenancy provision in this case is enforceable? Briefing was completed in January 2023. A bankruptcy stay was in effect for over a month, starting in March 2024. More about the case here and here.
  8. Iloff v. LaPaille — the court granted review in October 2022, and it limited the issues to: “1. Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? 2. May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?” Briefing was completed in August 2023. An amicus brief was filed in September 2023. No oral argument letter has been sent. More about the case here.
  9. People v. Mitchell — the court granted review in December 2022. The issue, as summarized by court staff, is: Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements? Briefing was completed in June 2023. No oral argument letter has been sent. More about the case here.
  10. California Capital Insurance Company v. Hoehn — the court granted review in January 2023. The issues, as summarized by court staff, are: (1) Is there a time limitation for filing a motion under Code of Civil Procedure section 473, subdivision (d) to vacate a judgment that is allegedly void based on extrinsic evidence? (2) In the alternative, does an equitable motion to vacate an allegedly void judgment for lack of service require proving intentional bad conduct in order to show extrinsic fraud? Party briefing was completed in June 2023. Amicus briefs were filed in July 2023. An oral argument letter was sent in March 2024. More about the case here.

Related:

“SCOCA is taking longer to decide its cases”

“Why we’re not worried about SCOCA productivity”

The In re Richards decisions are memorable for Justice Liu

As part of its “Conversations With [State] Supreme Court Justices,” the State Court Report had a conversation with Justice Goodwin Liu.

Justice Liu responded to six questions, including one about which Supreme Court opinions during his tenure on the bench are the most memorable. He prefaced the answer by characterizing the query as “a classic ‘pick among your children’ kind of question.” But he then mentioned as “one example” the two decisions regarding William Richards’s murder conviction: In re Richards (2012) 55 Cal.4th 948 and In re Richards (2016) 63 Cal.4th 291.

In the first Richards opinion, a 4-3 court denied habeas corpus relief even though the conviction had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology. Justice Liu dissented. The Legislature then effectively overruled the decision. In the second Richards opinion, the court unanimously vacated the conviction, noting “it is apparent that the Legislature agreed with the dissent’s conclusion in” Richards I.

Justice Liu singled out the Richards opinions in an earlier interview, as well.

Related:

Legislature acts to overturn 4-3 Supreme Court decision

Governor signs bill overturning Supreme Court decision

After legislative overruling, Supreme Court to reconsider 2012 denial of habeas relief

Supreme Court follows Legislature’s lead, grants habeas relief it had previously denied

Supreme Court clears the way for Berkeley student housing at People’s Park

In Make UC a Good Neighbor v. Regents of University of California, the Supreme Court today rejects a lawsuit filed to block construction of housing for UC Berkeley students and low-income persons at People’s Park, what the Court of Appeal decision in the case described as “a historic landmark and the well-known locus of political activity and protest.” The appellate court had held a CEQA-required environmental impact report for the project was inadequate. Today’s decision to the contrary is largely based on legislation — enacted after the Supreme Court granted review — that was intended to undo the appellate court’s opinion.

Horvitz & Levy is among Supreme Court counsel for the Regents and other defendants in the case.

The court’s unanimous opinion by Chief Justice Patricia Guerrero concludes that the history of the legislation — Assembly Bill 1307 — “overwhelmingly establishes that the Legislature enacted the new law to abrogate the [appellate court’s] Make UC decision.” Specifically, the court finds that, because of the new law and contrary to the Court of Appeal decision, the environmental impact report wasn’t flawed for not considering (1) “whether the impacts of social noise on neighboring residents potentially caused by future students at UC Berkeley constituted a significant effect on the environment” or (2) alternative locations to the People’s Park project.

The court has a few UC Berkeley connections. The Chief Justice is an undergraduate alumna, Justice Goodwin Liu was a professor and associate dean at the law school before joining the court, and Justice Carol Corrigan was an adjunct professor at the law school for several years in the 1980s and again in the 1990s.

The court reverses the First District, Division Five, Court of Appeal published opinion.

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