Justice Kruger honored as an “Unsung Hero”

Pasadena Now reports, “Justice Leondra R. Kruger, a Pasadena native and member of the California Supreme Court, was lauded as the 41st Assembly District’s ‘Unsung Hero’ by Assemblymember Chris Holden and the California Legislative Black Caucus.” The article notes that the Caucus established the Black History Month Unsung Hero Award “to honor individuals who have selflessly dedicated themselves to their respective districts.”

Holden is quoted as saying about Justice Kruger, “By enduring all that it takes to become the second African American woman and third youngest person ever to be appointed to the California Supreme Court, she is paving the way for upcoming young and diverse leaders and showing them that they are capable of more than they ever imagined.”

Don’t split your oral argument time

Former Chief Justice Tani Cantil-Sakauye recently spoke at a bar association program. (See here.) Her wide-ranging talk included tips for Supreme Court practitioners. One of her primary points was not to cede part of your oral argument time.

Splitting one side’s 30 minutes of argument time is allowed. Rule 8.524(f) provides for “[r]equests to divide oral argument among multiple counsel,” but the division has limits: “Multiple counsel must not divide their argument into segments of less than 10 minutes per person, except that one counsel for the opening side — or more, if authorized by the Chief Justice on request — may reserve any portion of that counsel’s time for rebuttal.”

However, just because you can split your time doesn’t mean you should. And Cantil-Sakauye’s advice is clear — don’t. (Video here.)

“My biggest rule is: please do not split time,” the former Chief Justice said. She explained that “the justices don’t ask questions in a lineal fashion” and you can’t be certain “when [particular questions] will come.” The court “is not going to categorize its questions according to how you would like to present [the argument]” and “it’s very confusing and a waste of time” when one attorney is in court to talk only about a particular issue but all that the justices want to hear about is a different issue. “I’ve never seen it be successful,” she concluded about the tactic of dividing time.

Years ago, we advised, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.”

It’s not any easier to get relief from a jury trial waiver in civil cases

California’s Constitution says trial by jury “is an inviolate right and shall be secured to all,” but it also provides the right can be waived in civil cases “by the consent of the parties expressed as prescribed by statute.” (Article I, section 16.) Code of Civil Procedure section 631 specifies how waiver can occur, but also gives superior courts the “discretion upon just terms” to grant relief from a waiver. In TriCoast Builders, Inc. v. Fonnegra, the Supreme Court today holds that a party has some hoops to jump through before getting relief from a jury trial waiver in a civil case, especially if the party waits until after an adverse bench trial to ask for appellate help.

The court’s unanimous opinion by Justice Leondra Kruger says that, first, a superior court isn’t necessarily required to grant relief if proceeding with a jury would not cause hardship to other parties or to the trial court. Hardship “is always a primary consideration,” the court concludes, but relief involves consideration of “a host of essentially equitable factors,” including “the timeliness of the [relief] request; whether the requester is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.” As far as reasons go, “a belated change of heart about trial tactics” probably won’t cut it, but there’s a better chance if the party timely asked for a jury and there was only a “failure to timely post the correct amount of jury fees or . . . another form of technical noncompliance with jury demand procedure.”

If relief denial isn’t challenged until an appeal from an adverse bench trial judgment, there’s another hurdle to overcome. A pre-trial writ petition in the Court of Appeal is “the preferred method” for challenging relief denial, the court says. Absent a writ petition, the appellant must show actual prejudice from the denial; prejudice won’t be presumed. Denying the constitutional right to a jury trial requires an automatic reversal, but not so for the denial of relief when that right has been waived.

The court affirms the Second District, Division Two, Court of Appeal’s 2-1 published opinion, although Division Two’s reasoning was different from that in today’s opinion. Also, it disapproves the Division Seven decision in Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1; the First District, Division Three, decision in Simmons v. Prudential Ins. Co. (1981) 123 Cal.App.3d 833; and the First District, Division Four, decision in Bishop v. Anderson (1980) 101 Cal.App.3d 821. There was no petition for review in Mackovska or Bishop. The Supreme Court denied a hearing (now called review) in Simmons.

Horvitz & Levy filed an amicus curiae brief supporting the defendant, who prevails today.

Civil jury trial waiver opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in TriCoast Builders, Inc. v. Fonnegra.   (Briefs here; oral argument video here.)

TriCoast Builders is expected to answer these questions: (1) When a trial court denies a request for relief from a jury waiver under Code of Civil Procedure section 631, and the losing party does not seek writ review but instead appeals from an adverse judgment after a bench trial, must the appellant show “actual prejudice” when challenging the order on appeal? (2) Does a trial court abuse its discretion when it denies a request for relief from a jury trial waiver without a showing that granting the request will prejudice the opposing party or the trial court?

The court granted review in April 2022. Horvitz & Levy filed an amicus curiae brief supporting the defendant. More about the case here.

The opinion will be the third of five in cases argued on the December calendar. The remaining two opinions should file by March 4. Additional argued but undecided cases are the two from the January calendar (with opinions likely by March 28) and the four from the February calendar (opinions expected by May 6).

The TriCoast Builders opinion can be viewed Monday starting at 10:00 a.m.

Supreme Court explains how to prove a gang enhancement

In People v. Clark, the Supreme Court today resolves a split in Court of Appeal opinions about interpreting amendments to a gang enhancement statute — Penal Code section 186.22 — made by Assembly Bill No. 333 (Stats. 2021, ch. 699). The amendments, with less than clear language that has taken up a not insubstantial amount of space on the court’s docket, narrowed the circumstances under which the gang enhancement could be imposed.

The court’s unanimous opinion by Justice Leondra Kruger holds the multiple offenses that constitute a “pattern of criminal gang activity” necessary to trigger the enhancement can be “committed by individual gang members acting alone” and need not, as some appellate courts had ruled, be “committed in concert with other gang members.”

The opinion also concludes, however, that proving the existence of a gang “requires a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang.”

The court reverses the Fourth District, Division Two, Court of Appeal partially published opinion. It also disapproves the First District, Division Three, decision in Rodas-Gramajo v. Superior Court (2023) 92 Cal.App.5th 656, the Second District, Division Seven, decision in People v. Delgado (2022) 74 Cal.App.5th 1067, and the Second District, Division Eight, opinion in People v. Lopez (2021) 73 Cal.App.5th 327. The Supreme Court denied review in Rodas-GramajoDelgado, and in Lopez.

Supreme Court will hear cases about request for records regarding destruction of homeless people’s property and about sentence enhancements for prior prison terms

Here are some notable Supreme Court actions at its conference yesterday:

Public records retention. The court granted review in both City of Gilroy v. Superior Court and Law Foundation of Silicon Valley v. Superior Court, consolidated the cases, and made City of Gilroy the lead case. In a published opinion resolving both writ proceedings, the Sixth District Court of Appeal ruled for a city regarding its response to requests under the California Public Records Act for disclosure of some videos, including police body-cam videos, of officers clearing homeless encampments. Among other things, the appellate court concluded that statutes other than the CPRA govern record retention and, although recognizing “public records that are potentially responsive to a public records request may be deleted while the request is pending,” the court held the CPRA neither requires the retention of potentially responsive records nor does it “impose a duty on public agencies to advise persons requesting public records of the existence of retention statutes.” Additionally, an appellate procedural issue the Supreme Court might or might not address is whether the Sixth District was correct when it modified its opinion to say “[t]he parties shall bear their own costs on appeal” [sic: these were original proceedings, not appeals] instead of awarding costs to the city as the original opinion did, and yet stated the modification effected “no change in the judgment.”

Prior prison enhancements. The court also agreed to hear People v. Rhodius, where a Fourth District, Division Two, published opinion upheld the partial denial of resentencing. Penal Code section 1172.75 invalidates many sentence enhancements for prior prison terms if the enhancements were “imposed prior to January 1, 2020.” Division Two held the statute applies only to those enhancements that were “imposed and executed,” not “imposed and stayed.” Rhodius already has its own grant-and-hold. (See below.)

Early parole. Justices Goodwin Liu and Martin Jenkins recorded dissenting votes from the denials of review in In re Hicks and In re Koenig. Published opinions by the Second District, Division Two (here) and the Third District (here), respectively, rejected claims of entitlement to early parole consideration under California Constitution article I, section 32(a)(1) (adopted by 2016’s Proposition 57), which requires parole consideration for “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison . . . after completing the full term for his or her primary offense.” Both petitions were before the Courts of Appeal after the Supreme Court issued orders to show cause. (Hickshere and here; Koenighere and here.) Both orders followed the Supreme Court’s decision in In re Mohammad (2022) 12 Cal.5th 518 (see here), which upheld regulations making early parole off limits to an inmate who is incarcerated for both nonviolent and violent felonies. In Mohammad, Justice Liu wrote a concurring opinion for himself and Justice Leondra Kruger saying there were a number of “[l]urking” questions that weren’t ripe for decision in that case. (12 Cal.5th at p. 542.)

Newspersons’ shield law. The court denied a request to depublish the partially published Fifth District opinion in The Bakersfield Californian v. Superior Court and it declined to review the case on its own motion. The appellate court upheld a murder defendant’s subpoena for a reporter’s unpublished materials from a jailhouse interview she conducted with a codefendant. This despite article I, section 2(b), of the California Constitution, which protects reporters who “refus[e] to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” (See also Evidence Code section 1070.) Quoting a Supreme Court case, the Fifth District said, “as held in Delaney v. Superior Court (1990) 50 Cal.3d 785, 793 . . . , shield law immunity ‘must yield to a criminal defendant’s constitutional right to a fair trial.’ ” The newspaper said it would seek depublication, but not review, “weighing the likelihood of the Supreme Court granting review and the costs involved, likely exceeding $100,000 after already spending roughly the same to take the case this far. Only about 3% of cases filed in the California Supreme Court are actually reviewed, and in this case, the Court of Appeal wrote a detailed, 57-page response, making it unlikely to be a case the California Supreme Court would hear.”

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  two more waiting for a decision in People v. Hardin (see here and here), which was argued over two months ago (video here); one more holding for People v. Mitchell (see here); one more waiting for People v. Emanuel (see here); another one on hold for People v. Lopez (see here); one more waiting for In re Hernandez (see here); and one holding for People v. Rhodius (see above).

Former Supreme Court attorney, and champion of Nepal’s children, dies

“As I nod off to sleep, I think to myself, ‘How lucky can an old lady get?’ ”

Olga Murray, who, after a 37-year career as a Supreme Court staff attorney, founded a non-profit organization to aid the children of Nepal, died yesterday. She was 98.

Born into an ethnic Hungarian family in Transylvania, Romania, Murray immigrated to the United States at age 6. After growing up in New York and graduating from Columbia University and then the law school at George Washington University, Murray moved to California and passed the Bar exam in 1954.

Murray soon after began her work at the Supreme Court as a research attorney for Chief Justice Phil Gibson, whom she called “a hard taskmaster” with a “stern and forbidding” public demeanor, but who was a “marshmallow at heart” and who “treated his staff almost like family.” When Gibson retired in 1964, Murray joined Justice Stanley Mosk’s staff, where she stayed for the remainder of her time at the court. She said Mosk had “a great sense of humor and a gentle but firm manner.”

Murray (standing, second from left); Justice Mosk (seated, middle)

Murray claimed being a court attorney was “the best job in the law.” She said she “helped to write important decisions in the areas of civil rights, women’s rights and environmental policy.” But, nearing retirement, Murray found a different calling. During a vacation in Nepal to trek in the Himalayas, she said, “After returning to my sleeping bag one night, in a flash, I knew for certain what [I wanted to do after leaving the court] — somehow, I would find a way to educate Nepali children.”

In 1989 she founded what is now the Nepal Youth Foundation. Its mission is to “offer[ ] hope and opportunity to Nepal’s most impoverished children by providing them what is every child’s birthright: vital healthcare, education, and a safe environment.” Murray divided her time between her homes in Sausalito, California, and Kathmandu, Nepal.

Praise From Murray’s Former Court Colleagues

Murray is fondly remembered by attorneys with whom she worked at the court.

Beth Jay, who worked at the court for well over three decades, including serving three chief justices as their principal attorney (see here and here; Beth is currently of counsel at Horvitz & Levy), wrote: “Olga had the office across from mine when I first started at the court. It didn’t take long to realize that her cheerful and open demeanor was backed up by a sharp intellect and a creative mind. I have been in awe of her work in Nepal, where she applied her talent to creating programs that saved and supported thousands of children and their families. She’s a shining example of how one person really can make a difference. I’ll miss her.”

Jake Dear was an attorney at the court for 40 years, rising to the position of chief supervising attorney under two chief justices. (See here.) He wrote: “Among the many talented and engaged staff attorneys at the California Supreme Court, present and former, Olga stands out. After contributing to the court’s work through the opinions of Chief Justice Gibson and then Justice Mosk, Olga embarked more than three decades ago on a second career, dedicated to the children of Nepal, through her Nepal Youth Foundation. It’s been a privilege to have known Olga in both respects — and to know that in each, this extraordinary woman lives on.”

More about Murray’s remarkable life can be found in her memoir “Olga’s Promise” and in an obituary and memorial page on the Foundation’s website.


From the Supreme Court to Nepal

“93-year-old Bay Area woman who has rescued thousands of children is still going strong”

“95-year-old might have found the key to longevity: A purposeful life”

Former Supreme Court attorney launches new “Caste Equality Program” to educate Dalit lawyers in Nepal

AB 333 gang enhancements opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Clark.   (Briefs here; oral argument video here.)

When the court granted review in Clark in October 2022, it limited the issue to, “Can the People meet their burden of establishing a ‘pattern of criminal gang activity’ under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during each predicate offense?” (Link added.) More about the case here.

Clark will be the second of five opinions in cases argued on the December calendar. The other three opinions should file by March 4. Additional argued but undecided cases are the two from the January calendar (with opinions likely by March 28) and the four from the February calendar (opinions expected by May 6).

The Clark opinion can be viewed tomorrow starting at 10:00 a.m.

Former Chief Justice talks about inter-branch tensions, gives practice tips, and advocates for raising State Bar dues at bar association program

Former Chief Justice Tani Cantil-Sakauye recently spoke at a Contra Costa County Bar Association program called “Behind the Judicial Curtain and in the Robing Room.” Video of the event is here.

She began her talk with a discussion of the judiciary’s relationship with the executive and legislative branches. Saying “it’s always a separation of powers challenge,” Cantil-Sakauye claimed that, despite being “incredibly well intended,” the other branches often “get out of their lane.” Later, remembering some skirmishes with legislators about the State Bar dues bill, she deadpanned, “thank goodness for term limits.”

Most of the former Chief’s lecture, however, dealt with the superior courts, Courts of Appeal, and the Supreme Court, and tips for practicing in each. She discussed things such as the importance of making a good record in the trial court and how to make the most of your oral argument time in the Supreme Court.

Cantil-Sakauye also discussed judicial ethics (including about the Commission on Judicial Performance and the Supreme Court’s Committee on Judicial Ethics Opinions, but nothing about the U.S. Supreme Court’s problems) and the State Bar. About the latter, she said “the Legislature needs to leave the State Bar alone for at least two to three years and let it get its business in order.” The former Chief Justice additionally asserted that the State Bar “needs to raise dues” to cover the costs of a new computer system and to hire additional staff.

Chief Justice to keynote law school diversity event

Chief Justice Patricia Guerrero, the Supreme Court’s first Latina member and the first Latina or Latino leader of California’s judicial branch, will be the keynote speaker at Pepperdine Law School’s Belongings Awards on March 2. (Here and here.) The awards “celebrate the diversity of the students, faculty, staff, and alumni at Caruso Law. The event will honor student organizations that thoughtfully promote diversity, belonging, and important views at the school; alumni who promote diversity and belonging in their profession; and faculty, staff, and the individual students who exemplify diversity, inclusion, and belonging at the school of law.”

The Chief Justice has made judicial diversity one of her primary goals and has embraced being a role model in her pioneering position.


Chief Justice Guerrero praises judicial diversity in her first State of the Judiciary address

Chief Justice receives Latino Spirit Award

Justice Guerrero on Good Morning America

“How Biography Shapes Judicial Philosophy: California Chief Justice Discusses Growing Up Near the Mexico Border”

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