One blog post alone could not do justice to all the notable actions the Supreme Court took at its conference yesterday. Part I is here. Here’s Part II.

Racial Justice Act depublication. The court denied review in People v. Vigil, yet another case concerning the Racial Justice Act (see Montgomery, Naddi, and Avalos in Part I), but it depublished the Fifth District’s opinion in the case and it said the review denial was “without prejudice to defendant filing a petition for writ of habeas corpus in the Tulare County Superior Court.” The opinion dismissed an appeal from an order denying the defendant RJA relief, stating the order was void because, “under the RJA’s phased-in retroactivity provisions, defendant’s motion was prematurely filed.”

Lemon Law depublication. The court also denied review and depublished the Court of Appeal opinion in Valdovinos v. Kia Motors America. The Second District, Division Two, interpreted California’s Song-Beverly Consumer Warranty Act, commonly known as the Lemon Law, as it applied to the plaintiff’s purchase of a new 2014 Kia Optima. The appellate court answered “no” to these questions: “is a consumer entitled to recover as ‘restitution’ amounts paid to a third party for a service contract on the vehicle? Second, is a consumer entitled to recover as ‘restitution’ all insurance premiums paid on the vehicle should the consumer continue to drive it (as opposed to only those premiums attributable to coverage against property damage)? Third, is a manufacturer’s, distributor’s, or retailer’s violation of the Act willful [allowing for a civil penalty up to twice the amount of the ‘restitution’ award] as a matter of law if the violation was negligent or if it adequately investigated but could not confirm the existence of a defect yet nevertheless offered to buy back the vehicle on terms that were reasonable at the time the offer was made?”  Horvitz & Levy represented the defendant and opposed the petition for review and the depublication requests.

Two pardon recommendations. The court granted Governor Gavin Newsom’s July requests for constitutionally required recommendations that allows him to pardon Mark Borovitz (for 1980, 1981, and 1984 convictions of non-sufficient funds and a 1987 conviction of grand theft auto) and Joseph Crocker (for a 1995 conviction of taking a vehicle without the owner’s consent and a 1996 conviction of possession of a controlled substance for sale). Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 70 of his other requests. That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

Dissenting vote in youth offender parole/Three Strikes case. Over the recorded dissenting vote of Justice Kelli Evans, the court denied review in People v. Mason. The Second District, Division Two, partially published opinion rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. That was the unpublished part, on an issue that has consistently drawn dissenting votes — and one separate statement — from Justices Evans and Goodwin Liu. (See here, here, here, here, here, here, here, here, here, here, here, and here). The published portion “overrule[d]” Division Two’s decision in People v. Hardy (1999) 73 Cal.App.4th 1429 and followed what it said is the majority of Court of Appeal opinions, with the appellate court now concluding that the Three Strikes Law doesn’t allow for the doubling of an LWOP sentence. Justice Evans didn’t issue a separate statement explaining her recorded vote, so it’s not clear which issue or issues attracted her attention. There’s a fairly simple cure for that: When a message vote’s message is muddled. It’s also unclear why Justice Liu didn’t vote for review on the youth offender parole issue.

Another dissenting vote in a youth offender parole case. Justice Evans also dissented from the denial of review in People v. Ralls. Unlike in Mason (see above), it seems clear that the dissenting vote concerned the issue whether it is cruel or unusual punishment under the California Constitution for a statute to prevent parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. The First District, Division Four, unpublished opinion rejects the constitutional challenge to the statute. As in Mason, it’s unclear why Justice Liu didn’t join Justice Evans in voting to grant review. The Ralls opinion notes Justice Evans’s separate dissenting statement (signed by Justice Liu) in People v. Powell (see here) advocating for review of the cruel-or-unusual-punishment issue, but says, “Perhaps the calls made by Justices Evans and Liu in Powell will be heeded by their colleagues at some point, but it is above our pay grade to do so.”

Grant-and-hold dispositions (see here). The court shed 14 cases that had been grant-and-holds for the August decision in People v. Lynch (2024) 16 Cal.5th 730 (see here). All are returned to the Courts of Appeal for reconsideration, eight in light of both Lynch and Erlinger v. United States (2024) 602 U.S. 821 and six in light of just Lynch.

At its conference yesterday, a double one, the Supreme Court backed up Chief Justice Patricia Guerrero’s recent pledge that a decline in straight grants would be temporary. It issued straight grant orders in five cases. We can’t remember the last time the court at one conference agreed to hear that many cases. The conference was so eventful, we’re reporting on it in two parts. Here’s the first part. [Update: The Supreme Court’s eventful conference — Part II.]

.Judge removed. Supreme Court lets stand order removing superior court judge from the bench.

Racial Justice Act procedure. In June we wrote the California Racial Justice Act (here and here) “is a good candidate to be the next big thing on the court’s docket. Chief Justice Patricia Guerrero has already identified it as legislation that is ‘impacting [the court’s] workflow.’ (See, e.g., here, here, here, here, and here.)” (See also Naddi and Avalos below.) The court addressed a procedural issue in two death penalty appeals in August. (See here and here.) Still nibbling around the edges of the consequential statutory scheme, the court yesterday granted review in In re Montgomery to decide the appealability of an order denying a motion for discovery made in connection with a summarily denied postjudgment habeas corpus petition seeking relief for alleged RJA violations. The Fourth District, Division One, published opinion in the case held the order was not appealable and dismissed the appeal. Division One said “the RJA does not authorize a freestanding motion for discovery; it only authorizes discovery in a pending proceeding in which the defendant has alleged a[n] [RJA] violation.” [Sic: the opinion should read “only authorizes discovery only in a pending proceeding . . . .”] The appellate court advised the defendant to file a new habeas petition in the Court of Appeal or the Supreme Court. A concurring justice wrote, among other things, that RJA discovery “should not be precluded by a trial court’s finding that a defendant has not (yet) made the requisite prima facie showing [of an RJA violation].”

[December 13 update: It looks like the issue is broader than just appealability. Here is the issue as summarized by court staff (see here) — “Must a petitioner allege a prima facie case for relief under the Racial Justice Act (Pen. Code, § 745; RJA) before the trial court can consider a discovery request for disclosure of evidence under the RJA (id., subd. (d))?”]

Conservatorship renewal trial. The court agreed to hear Conservatorship of E.A. after an unpublished opinion by the First District, Division One. Agreeing with the recent First District, Division Two, decision in Conservatorship of T.B. (2024) 99 Cal.App.5th 1361 and analogizing to the Supreme Court’s opinion in Camacho v. Superior Court (2023) 15 Cal.5th 354 about commitments under the Sexually Violent Predator Act (see here), Division One held a long delay in bringing to trial a petition to renew an involuntary commitment under the Lanterman-Petris-Short Act was not prejudicial. The appellate court justices did write, however, “We are dismayed by the trial court’s inability to hear the 2022 petition for over a year, involving as it does ‘ “a massive curtailment of liberty” ’ for E.A.” The Supreme Court denied review in T.B.

[December 13 update: Here is the issue as summarized by court staff (see here) — “Must a conservatee demonstrate prejudice to establish that a 362-day delay in initiating a trial in a Lanterman-Petris-Short Act conservatorship proceeding violates due process and equal protection?”]

Kidnapping. Review was also granted in People v. Hughey. The Second District, Division Six, in a published opinion, affirmed kidnapping convictions, finding sufficient evidence supported the factual finding that the two defendants moved the victims in a store robbery a “substantial distance.” Division Six said that the movement “must be . . . more than incidental to the offense” and that “the measure of ‘incidental’ varies with the facts.” It disagreed with the 2-1 opinion in People v. Hall (2024) 104 Cal.App.5th 1077 because it said the Hall majority “did not consider the [home invasion] victim’s evidence of the increasing emotional harm the robbers caused and their gratuitous violent behavior.” The Supreme Court denied a defendant’s petition for review in Hall.

[December 13 update: Here is the issue as summarized by court staff (see here) — “Was there sufficient evidence of asportation to support defendants’ convictions for kidnapping (Pen. Code, § 207, subd. (a))?”]

Workers’ compensation procedure. The court will hear Mayor v. Workers’ Compensation Appeals Board. In a published opinion, the First District, Division Four, held granting reconsideration of a permanent disability award exceeded the Board’s jurisdiction. The order granting the reconsideration petition was made more than 60 days after the petition’s filing, and the then-governing statute provided a petition “is deemed to have been denied . . . unless it is acted upon within 60 days from the date of filing.” Finding the deadline mandatory and not directory, Division Four followed the Second District, Division Seven, decision in Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213, which had disagreed with the Fourth District, Division Three, decision in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104. There was no petition for review in Zurich American or Shipley. The Supreme Court’s order limits the issues to those “raised in the petition for review,” presumably declining to pass on any issues raised in the worker’s answer to the Board’s petition for review.

[December 13 update: Here are the issues as summarized by court staff (see here) — “(1) May the Workers’ Compensation Appeals Board apply equitable tolling to act upon a petition for reconsideration beyond the 60-day period provided in Labor Code section 5909, when the Appeals Board did not receive the petition for reconsideration until after the 60-day period has elapsed? (2) Did the Court of Appeal act in excess of its jurisdiction in granting relief under traditional mandate (Code Civ. Proc., § 1085), where petitioner did not file a timely petition for writ of review pursuant to Labor Code section 5909?”]

Excess insurance. The court granted review in Fox Paine & Co. v. Twin City Fire Insurance Co. The First District, Division Two, published opinion held in favor of two excess insurance companies because underlying insurance had not yet been exhausted. Division Two reasoned that “burdening the excess insurers with prematurely litigating coverage issues before exhaustion upsets insurers’ settled expectations.” In doing so, it dismissed as “pure dictum” a statement in the Sixth District decision in Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592 that, for declaratory relief purposes, “Exhaustion of underlying limits, while necessary to entitle the insured to recover on the excess policy, is not necessary to create actual controversy. Exhaustion is merely an issue of proof and entitlement to recovery, not of pleading.” (Id. at p. 606.) There was no petition for review in Ludgate.

[December 13 update: Here are the issues as summarized by court staff (see here) — “(1) Where an insurance policyholder alleges loss sufficient to reach an excess policy, but that insurer’s obligation to pay is not yet triggered because underlying layers are not yet exhausted, may the policyholder nevertheless seek declaratory relief against the insurer? (2) Can a policyholder ever state a claim against an excess insurer for “bad faith” conduct if the underlying policy layers are not yet exhausted?”]

Racial Justice Act OSC. In another case involving the Racial Justice Act (see Montgomery above and Avalos below), the court issued an order to show cause, returnable in the superior court, in In re Naddi, a pro per’s habeas corpus petition. The Supreme Court had asked for an informal response concerning “whether petitioner has set forth a prima facie case for relief on his claim under the Racial Justice Act.” The OSC requires a showing “why petitioner has not satisfied the requirements for the appointment of counsel pursuant to Penal Code, section 1473, subdivision (e)).” (Link added.)

Racial Justice Act denial with reasons stated. The court denied the pro per’s habeas corpus petition in In re Avalos regarding the Racial Justice Act (see Montgomery and Naddi above). Uncommonly, the denial order is an extended one explaining why the petition “fails to make a prima facie showing of entitlement to relief under the Racial Justice Act.” Among other rejected claims, the order says “the petition fails to allege particularized facts that support a claim that petitioner was charged, convicted, or sentenced in a more severe manner than similarly situated individuals of other races, ethnicities, or national origins.”

Bond voting grant-and-hold. City of Oxnard v. Howard Jarvis Taxpayers Association is another grant-and-hold for City of San José v. Howard Jarvis Taxpayers Association (see here), where the court limited the issue to: “Is the issuance of pension obligation bonds to finance unfunded pension liability subject to the voter-approval requirement of article XVI, section 18, subdivision (a) of the California Constitution?” (Link added.)  The Second District, Division Six, unpublished opinion followed the Sixth District’s decision in the San José case and held voter approval is not required, concluding that the pension obligation bonds in issue “will merely convert existing, unfunded pension liability into debt in the form of bonds. No new debt will be created.”

Continuance to allow summary judgment motion. The court granted review in Berry v. Superior Court and sent the case back to the Fifth District, which had summarily denied the writ petition in the case. The Supreme Court directed the appellate court to issue an alternative writ. The Fifth District docket characterized the writ petition as one challenging an “order to continue trial to March 2025 to allow defendant to file a motion for summary judgment.” That court then asked for a preliminary opposition addressing “whether the superior court abused its discretion by . . . continuing the trial . . . after having previously granted trial preference under Code of Civil Procedure section 36.” Its summary denial order stated, “Petitioner’s claims appear to be based upon a health provider’s alleged professional negligence. Therefore, the nine-month deadline for setting trial under Code of Civil Procedure section 36, subdivision (g), applies, rather than the shorter 120-day deadline contained in subdivision (f). As the trial court set a trial date before the nine-month deadline, petitioner has not presented a prima facie claim for relief.”

Late notice of appeal. The court granted review in People v. Parks and sent the case back to the Second District, Division Five, “with directions to vacate its denial order and reconsider the application for relief from default in light of the Attorney General’s concession that petitioner is entitled to fil[e] a constructive notice of appeal. (Cal. Rules of Court, rule 8.528(d); see In re Benoit (1973) 10 Cal.3d 72.)” Division Five had denied a request for relief from default for failure to timely file a notice of appeal.

Criminal case grant-and-holds. There were 20 criminal case grant-and-holds:  six more waiting for a decision in People v. Patton (see here), which was argued last week; one more holding for People v. Emanuel (see here); one more waiting for People v. Lopez (see here), which was argued in November; and 12 more on hold for People v. Rhodius (see here).