In a recent article in the Daily Journal [subscription required], reporter Emily Green wrote that the California Supreme Court has displayed a remarkable degree of unanimity.  This unanimity has also been noted by other court watchers, including Professor Gerald Uelmen, as  we discussed here.  Nonetheless, as Green noted, the Court does issue a few closely divided opinions each year, and has issued five 4-3 decisions since August 2012. 

As observers of the U.S. Supreme Court know well, closely divided opinions can say much about justices’ approach to the task of judging.  But, Green pointed out, “The breakdown of the [California] justices’ positions defies ideological and political expectations.  No single bloc is emerging on the court, and not one majority opinion includes the same four justices.”  Green then made the astute observation that, more than anything else, the Court’s 4-3 decisions reveal a difference of opinion among the justices over how to interpret statutory law.  She noted that Justices Baxter and Kennard are greater adherents of a “plain meaning” approach, while Justices Werdegar and Liu “tend to place more emphasis on the law’s legislative history.”  Even so, the justices often seek the middle ground, especially when deciding controversial cases, which reflects a value judgment that consensus is more important than ideology.  Green emphasized the point by quoting Justice Liu as recently saying the justices craft their opinions so as “‘to garner the most votes.’”

Green concluded by noting the justices’ differing views regarding statutory interpretation would be put to the test again in City of Riverside v. Inland Empire Patient’s Health and Wellness Center, S198638, in which the Court was called upon to decide whether state law preempts the authority of local municipalities to ban medical marijuana dispensaries within their borders.  The Court issued that opinion earlier this month, as noted in this Los Angeles Times article, and upheld local authority to ban such dispensaries. 

So does the City of Riverside opinion support Green’s hypothesis?  Yes, to some degree.  The opinion’s unanimity underscores the importance of consensus in high-profile cases.  And it probably is not a surprise that the opinion, authored by “plain meaning” adherent Justice Baxter, is rooted heavily in the operative language of the governing statutes and gives less weight to the Legislature’s statements of intent.  (See typed opn., 33-34 [“We cannot employ the Legislature’s expansive declaration of aims to stretch the MMP’s effect beyond a reasonable construction of its substantive provisions.”].)  On the other hand, the opinion’s very unanimity tends to vitiate the notion that there is a deep divide on the Court over the proper approach to statutory interpretation.  It is true that Justice Liu wrote a separate concurrence, but it was not to advocate a broader approach to statutory interpretation.  Instead, he wrote separately to reaffirm the proper state vs. local preemption inquiry.  (Conc. opn. of Liu, J., p. 1 [state law preempts local legislation not only “when local law prohibits . . . what a state statute ‘demands’ but also what the statute permits or authorizes”].)

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 15, 2013.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Conservatorship of McQueen, S209376—Review Granted—May 15, 2013

The question presented is whether a motion under Code of Civil Procedure sections 685.040 and 685.080 for attorney’s fees and costs expended in enforcing a judgment is barred after full satisfaction of the judgment.  The Court of Appeal, First District, Division Four, held in an unpublished decision, Estate of McQueen, A134337, that Code of Civil Procedure sections 685.040 and 685.080 bar such a motion once the judgment is satisfied in full.

Review Denied (with dissenting justices)

Church of Scientology International v. Superior Court, S210314—Review Denied [Baxter, J. and Chin, J., voting for review]—May 15, 2013

The question presented was whether communications between the plaintiff and the clergy of the Church of Scientology are protected by California’s clergy-penitent privilege, where the plaintiff seeks disclosure and the communications were not limited to one clergy member, but were shared with other clergy.

The Church of Scientology filed a petition for writ of mandate after the trial court compelled it to produce records of communications between the plaintiff and its clergy members.  The trial court compelled disclosure of the communications, finding the privilege did not apply since the communications were made available to other members of the clergy.  The Court of Appeal, Second District, Division Three, denied the petition.

Schmeer v. County of Los Angeles, S209633—Review Denied [Kennard, J., and Corrigan, J., voting for review]—May 15, 2013

The question presented is whether a county ordinance that requires retailers to charge customers 10 cents for each recyclable paper carryout bag used to carry goods away from a store imposes a tax that was not approved by county voters.  The Court of Appeal, Second District, Division Three, held in a published opinion, Schmeer v. County of Los Angeles (2013) 213 Cal.App.4th 1310, that the 10 cent charge is not a tax because it is payable to and retained by the retail store, not given to the county.

Depublished

None.

The Supreme Court today announced that its Capital Central Staff will have a new director next month — Steven Rosenberg, who has been a senior attorney on the staff since 2006 – and that the current director — Kaye Reeves — will, after nine years, return to the chambers staff of Justice Kathryn Mickle Werdegar.

The press release also explains the court’s staffing in general.  Besides each justice’s own chambers attorneys, the court has three separate central staffs.  The Capital Central Staff, with nine attorneys and a director, assists the justices in death matters, including drafting memoranda and opinions in capital appeals, habeas corpus petitions, and related motions.  The Criminal Central Staff prepares conference memoranda on petitions for review and habeas corpus petitions in non-capital criminal matters.  The Civil Central Staff prepares conference memoranda on petitions for review in civil cases and attorney and judicial discipline matters.

The Supreme Court tomorrow morning will file its opinion in Biancalana v. T. D. Service Company, a case presenting the issue:  When a trustee makes an error in the processing and announcement of a beneficiary’s “credit bid” during foreclosure proceedings on a deed of trust, and the trustee has not yet issued a trustee’s deed to the highest bidder at the foreclosure sale, does the trustee have the discretionary authority to set aside the foreclosure sale due to that error?  Biancalana was argued in April.

The opinion can be viewed online tomorrow beginning at 10:00 a.m.

The Daily Journal [subscription required], recently reported that retired California Supreme Court Justice Carlos Moreno is in the running to be the next United States ambassador to Belize.  In her article, Emily Green quotes several of Justice Moreno’s former colleagues, who praise his collegial, gracious and diplomatic nature, which will serve him well in that post if he is appointed.  Moreno, who retired from the Court in 2011, has since been in private practice at Irell & Manella in Los Angeles.

The Supreme Court will file on Monday morning its opinion in People v. Park, which raises the issue whether the enhancement imposed on defendant under Penal Code section 667, subdivision (a), should be stricken because his prior conviction for a serious felony was reduced to a misdemeanor under Penal Code section 17, subdivision (b), and dismissed under Penal Code section 1203.4.  The case was argued in March.

The opinion can be viewed online beginning at 10:00 a.m. Monday morning.

Few Americans can identify their country’s chief justice.  Most Californians probably can’t name the state’s chief justice, either.  But you’d hope for better from the media.  Yet, when the OC Weekly reported that UC Irvine law school’s commencement address will be delivered this year by California’s chief justice, it added, “Fortunately, the UCI School of Law has informed the Weekly who that is:  Tani Cantil-Sakauye.”

Finishing up a 14-case early May calendar today, the Supreme Court announced another 15 cases will be argued during its late-May and early-June calendars.  May is the only month with two argument calendars and it’s not unusual for the court to hear lots of cases before the July and August argument-less months.  The 2013 pre-summer calendars are heavy, but not like last year’s monsters — the court heard 16 cases in early May and 25 (!) in late May and early June.

The court was a bit stingy on notice for the late-May calendar.  The rules require 20 days’ minimum notice.  The late-May calendar includes six cases to be heard on May 29, but notice wasn’t given until yesterday, 21 days before those arguments.  One of the cases — American Nurses Assn. v. Torlakson — has been fully briefed for over two years (a bit under two years if you’re counting from the last response to an amicus curiae brief), so counsel in that case have just 3 weeks to re-learn the case and prepare for argument.

On May 29 and 30 and June 5, the court will hear the following cases in San Francisco (with the issue(s) presented as stated on the court’s website):

Elk Hills Power, LLC v. Board of Equalization:  How do limitations on the taxation of intangible property (see Cal. Const., art. XIII, section 2; Rev. & Tax. Code sections 110, 212; Roehm v. County of Orange (1948) 32 Cal.2d 280) apply to the assessment of a power plant subject to annual assessment by the State Board of Equalization (Cal. Const., art. XIII, section 19), when the owner of the plant used emission reduction credits (see Health & Saf. Code, section 40709) to offset its emissions and obtain authorization to construct the plant?

Hayes v. County of San Diego:  Whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.  The Supreme Court is hearing this case at the Ninth Circuit’s request, under somewhat unusual circumstances.

American Nurses Assn. v. Torlakson:  (1) Under California law, are designated school personnel who are not licensed nurses allowed to administer insulin to diabetic students pursuant to treating physicians’ orders under a Section 504 Plan (29 U.S.C. section 794; 34 C.F.R. section 104.1 et seq.) or an Individualized Education Program (20 U.S.C. section 1414(d))?  (2) If not, is California law preempted by federal law?

People v. Davis:  Did substantial evidence support defendant’s convictions for possession and sale of a controlled substance even though MDMA/Ecstasy is not expressly listed as a controlled substance subject to Health and Safety Code sections 11377 and 11379, and the prosecution did not present expert testimony that MDMA/Ecstasy contains a controlled substance or is an analog of a controlled substance?

People v. Harris:   [This is an automatic appeal from an August 1999 judgment of death.  The court's website does not list issues for such appeals.]

People v. Jones:   [This is an automatic appeal from a September 1994 judgment of death.  The court's website does not list issues for such appeals.]

Today’s Fresh Start, Inc. v. Los Angeles County Office of Education:  Does due process require an evidentiary hearing before a neutral hearing officer or decision-maker prior to the revocation of a charter school’s charter by a county board of education?

Reilly v. Superior Court:  Was petitioner entitled to dismissal of a petition for commitment under the Sexually Violent Predator Act (Welf. & Inst. Code, section 6600 et seq.) when the evaluations originally supporting the filing of the petition were conducted under an assessment protocol that was later found to constitute an invalid regulation and the results of reevaluation under a properly-adopted assessment protocol would have precluded the initial filing of the petition under Welfare and Institutions Code section 6601?

People v. Williams:  Can a conviction for robbery be based on the use of force in the attempt to escape after committing the crime of theft by false pretenses as opposed to theft by larceny?

People v. Martinez:  (1) Did the trial court abuse its discretion in denying defendant’s motion to withdraw his 1992 guilty plea based on the failure of the trial court at the time of the plea to advise him of the immigration consequences of his plea, as mandated by Penal Code section 1016.5?  (2) In ruling on such a motion, should a court consider in addition to the defendant’s prospects at trial, factors such as the possibility that had the defendant been properly warned, he might have obtained an immigration-neutral disposition or might have preferred his chances at trial over the certainty of deportation if he entered the plea?

People v. Johnson:  Is there a crime of conspiracy to commit the offense of active participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a)?

People v. Edwards:  [This is an automatic appeal from a September 1998 judgment of death.  The court's website does not list issues for such appeals.]

People v. Dowl:  Whether the People, when confronted with a medical marijuana defense, must call an expert with experience distinguishing lawful, medical possession from unlawful possession to establish that defendant possessed marijuana for sale.

People v. Maciel:  [This is an automatic appeal from a May 1998 judgment of death.  The court's website does not list issues for such appeals.]

People v. Mai:  [This is an automatic appeal from a June 2000 judgment of death.  The court's website does not list issues for such appeals.]

The Supreme Court will file tomorrow its opinion in In re I.  J., a case raising the issue whether evidence that a 14-year-old girl had been sexually abused by her father was sufficient in itself to support a juvenile court’s jurisdictional findings under Welfare and Institutions Code, section 300, subdivisions (b), (d) or (j), that her younger male siblings were at substantial risk of future sexual abuse or other risk of harm.  The case was argued just one month ago.

The I. J. opinion can be viewed online beginning at 10:00 a.m. tomorrow morning.

The Court is holding no conference this week because it is hearing oral argument in San Francisco.  Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.

Check out this post from the UCL Practitioner regarding Rose v. Bank of America, S199074, one of the cases being argued today.

UPDATE:  The UCL Practitioner has added this post regarding Zhang v. Superior Court, S178542, one of the cases being argued today, May 8.  (Full disclosure:  Horvitz & Levy LLP represents real party in interest California Capital Insurance Company.)

The Supreme Court will file tomorrow opinions in two cases that were argued in February.

In City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc., the court will resolve issues concerning preemption, under federal or state law, of local ordinances regulating or banning the operation of medical marijuana dispensaries and related activities, and standing to challenge such ordinances.

People v. Williams is an automatic appeal from a December 1992 judgment of death.

Under the 90-day-from-argument rule, the opinions will be filed on the last possible day.  [Predictable bad pun warning.]  Yes, it’s high time the court issued its marijuana dispensaries opinion.

The opinions can be viewed online beginning at 10:00 a.m. tomorrow morning.

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 1, 2013.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Natalini v. Import Motors, S209324—Review Granted and Held—May 1, 2013

The question presented is whether AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __, 131 S.Ct. 1740 broadly restricts the application of the common law doctrine of unconscionability to arbitration clauses. The Court of Appeal, First District, Division Five, held in a published decision, Natalini v. Import Motors, Inc. (2013) 213 Cal.App.4th 587, that an arbitration clause in a car dealer’s sales contract was procedurally and substantively unconscionable, noting that Concepcion did not overthrow the contract defense of unconscionability whenever an arbitration clause is at issue.

The Supreme Court ordered further action deferred pending consideration and disposition of a related issue in Sanchez v. Valencia Holding Co., LLC, S199119:  Does the Federal Arbitration Act, as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?  Sanchez is fully briefed and awaiting oral argument.             

Review Denied (with dissenting justices)

None.

Depublished

None.

The Supreme Court’s website shows that no conference was held yesterday.  Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished. 

The lack of a conference yesterday is a bit surprising, since the Court is not hearing oral argument this week and a conference is shown to be scheduled on the Court’s oral argument and conference calendar.  We’re speculating, but the most likely reason for deviating from the calendar is that a two-day meeting of the Judicial Council is being held today and tomorrow.  The Chief Justice will chair the meeting, of course, and Justice Marvin Baxter will also be in attendance as a member of the Council.

More than two years ago, we posed the question whether the transition from former Chief Justice Ronald M. George to Chief Justice Tani Cantil-Sakauye would be accompanied by an increase in the number of Court of Appeal opinions depublished by the Supreme Court.  (For background on the practice of depublication, see former Justice Joseph R. Grodin’s excellent law review article.)  We noted then that the number of depublished opinions had fallen from highs of 111 per year in fiscal years 1989-1990 and 1991-1992 (during the tenure of Chief Justice Malcolm M. Lucas) to an all-time low of just four opinions depublished in fiscal 2009-2010. 

The answer to our question appears to be yes, depublication has enjoyed a modest but noticeable return to favor under the current Chief.  The number of depublication orders certainly has not approached triple digits, as it did 20-odd years ago.  But the number increased significantly once the Chief took office at the beginning of 2011, and has continued to increase since then.  Ten opinions were depublished in fiscal 2011 (July 2010 to June 2011)—a 150 percent increase over the previous fiscal year’s all-time low.  Fourteen opinions were depublished in fiscal 2012 (July 2011 to June 2012), which is a further 40 percent increase over the previous fiscal year.  And with more than two months still to go in fiscal 2013 (July 2012 to June 2013), the Court has already ordered 15 cases depublished, one more than it ordered depublished in all of the previous fiscal year.

So what might be the significance of this upward trend in the number of depubs?  Well, when the number was at rock bottom, we could say pretty definitively that the denial of a depub request indicated little about what the Supreme Court actually thought of the Court of Appeal’s opinion, a point we noted here.  But the increase in depubs suggests that the Court does sometimes order appellate opinions depublished to signal its disagreement with them.  We made that point here, when discussing the recent depublication of three similar wage-and-hour decisions, all from the Second District, Division Eight. 

Another question potentially raised by the increase in depubs is whether an order of depublication is fair to the litigants in the particular case.  After all, assuming arguendo that a grant of depublication indicates disagreement with some aspect of the Court of Appeal’s opinion—and it may not (see our linked posts above)—then in a sense those litigants’ dispute may have been adjudicated under an incorrect rule of law.  Sure, the Court of Appeal opinion will have been depublished, but it still binds the parties and the change of publication status is typically cold comfort to the losing litigant. 

Therefore, in cases where the Court is considering depublication of an opinion it views as erroneous, one might conclude that, in the alternative, the Court could correct the error by employing its power to grant review and transfer the matter back to the Court of Appeal for further proceedings in light of whatever authority the Supreme Court views to be most relevant.  As we noted here, the Court issued a similar grant-and-transfer order this month in Smith v. State of California, S208714, a case in which there was no appellate opinion but in which the Court of Appeal had denied a pro per appellant’s motion to recall the remittitur following the dismissal of his appeal. 

However, the Court has been reluctant to employ its grant and transfer power to correct substantive errors, and generally has limited its use to matters of appellate procedure. For jurisprudential reasons, and considerations of judicial economy, the Court might well be reluctant to expand its use of the power in this way. For example, the Court might feel the Courts of Appeal would be overburdened by such a practice.  The Court might also feel that, when it comes to thorny substantive issues, the grant and transfer procedure does not permit the Court to provide the Court of Appeal with sufficient guidance.  Finally, the Court might be reluctant to expand its grant and transfer powers to correct substantive errors because the Court’s role is not mere error correction (except in death penalty cases), but rather maintaining the uniformity of state law—a mission fulfilled by the judicious use of depublication.  The Court might be concerned that using its grant and transfer power regularly to correct error could swamp its resources and distract it from its unique mission.

The Supreme Court will file tomorrow its opinion in McWilliams v. City of Long Beach.  In that case, which was argued in March, the court will decide whether a local ordinance can preclude the filing of a class claim for a tax refund, or whether the provisions of the Government Claims Act excepting from its reach claims brought under a “statute prescribing procedures for the refund . . . of any tax” (Gov. Code, section 905, subd. (a)) are inapplicable to local ordinances.

The opinions can be viewed online beginning at 10:00 a.m. tomorrow morning.

The Supreme Court on Monday will file two criminal law opinions.

In People v. McCullough, argued in February, the court will decide whether the defendant forfeited his claim that he was unable to pay the $270.17 jail booking fee (Gov. Code, section 29550.2) imposed by the trial court at sentencing, because he failed to object at the time?

The issue in People v. Nuckles, argued in March, is:  Was defendant properly convicted of being an accessory to a felony for assisting another person to abscond from his parole term after serving his sentence for that felony?

The opinions can be viewed online beginning at 10:00 a.m. Monday morning.

The court almost always gives at least a day’s notice of a forthcoming opinion filing.  The court’s criminal sentencing opinion yesterday in People v. Clancey, argued in February, is an exception.

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 17, 2013.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

California Charter Schools Association v. Los Angeles Unified School District, S208611—Review Granted—April 17, 2013

The question presented is whether a school district may use norming ratios as a method of assigning classroom space to charter schools under California Code of Regulations, title 5, section 11969.3, subdivision (b)(1), which states, “Facilities made available by a school district to a charter school shall be provided in the same ratio of teaching stations (classrooms) to [Average Daily Attendance] as those provided to students in the school district attending comparison group schools.”

In California Charter Schools Association v. Los Angeles Unified School District (2012) 212 Cal.App.4th 689, a published opinion authored by Los Angeles Superior Court Judge Edward Ferns (sitting by assignment), the Court of Appeal, Second District, Division Five, held that the school district’s use of norming ratios to determine the number of classrooms to provide to charter schools did not violate the regulation.  The court found the use of norming ratios was consistent with the goal of Proposition 39 to ensure that facilities are shared fairly among all public and charter school students.

Review Denied (with dissenting justices)

None.

Depublished

None.

In 2011, pursuant to California Rules of Court, rule 9.80, the Supreme Court established the Supreme Court Committee on Judicial Ethics Opinions (CJEO) “to help inform the judiciary and the public concerning judicial ethics topics.”  According to this press release and this article from Law360, the CJEO recently issued its first formal opinion, to address whether judges can encourage attorneys to advocate on behalf of the courts.  This topic has particular relevance given the massive cuts to the judicial branch’s budget, which we recently discussed here, in connection with the Chief Justice’s State of the Judiciary speech to the Legislature.           

No doubt to the relief of the judges presiding over California’s cash-strapped courts, the committee has unanimously concluded that it is proper for judges to make such requests of the bar.  The opinion states:  “In the committee’s opinion, it is permissible and appropriate for a judge to invite lawyers to a meeting to provide information about budget cuts and their potential impact on the administration of justice and to request help in reducing the cuts or ameliorating the impacts.”  However, as Law360 puts it, the opinion also “instructs judges to be mindful of creating the impression that they are coercing cooperation or suggesting that an attorney will get favorable treatment if they cooperate.”

The Supreme Court announced that it will file its opinion Monday in People v. Anzalone, which was argued in February.

The issues in Anzalone are:  (1) Did the trial court err by failing to obtain the jury’s oral assent to the verdicts, and if so, was the error structural and thus reversible per se, or subject to harmless error analysis?  (2) If the latter, was the error prejudicial?  (3) If the former, does double jeopardy bar retrial?

The opinions can be viewed online beginning at 10:00 a.m. Monday morning.

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 10, 2013.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Gregory v. Cott, S209125—Review Granted—April 10, 2013

The question presented is whether the primary assumption of risk doctrine bars the tort claims of an in-home caregiver for negligence, battery, and premises liability against a patient with Alzheimer’s disease and the patient’s husband.  

The Court of Appeal, Second District, Division Five, held in a published opinion, Gregory v. Cott (2013) 213 Cal.App.4th 4, that the primary assumption of risk doctrine barred the in-home caregiver’s claims against the patient and her husband.  Justice Armstrong dissented, opining that California law does not extend the doctrine to this context, and that he would limit its application to professional caregivers in institutional settings. 

UPDATE:  Check out this Metropolitan News-Enterprise article regarding the grant of review in Gregory.   

Flores v. West Covina Auto Group, S208716—Review Granted & Held—April 10, 2013

The questions presented are: (1) whether the Consumer Legal Remedies Act (CLRA) is preempted by the Federal Arbitration Act (FAA) to the extent that the CLRA prohibits a buyer’s waiver of the right to participate in a class action; (2) whether the dealer waived its right to compel arbitration by its participation in litigation; and (3) whether the arbitration agreement at issue was unconscionable. 

The Court of Appeal, Second District, Division Eight, held in a published opinion, Flores v. West Covina Auto Group, (2013) 212 Cal.App.4th 895, that (1) the FAA preempts the CLRA to the extent that the CLRA prohibits a buyer’s class action waiver; (2) the dealer did not waive the right to compel arbitration by participation in litigation; and (3) the arbitration agreement was not unconscionable. The Supreme Court deferred review pending consideration and disposition of a related issue in Iskanian v. CLS Transportation of Los Angeles, S204032.

Smith v. State of California,  S208714—Review Granted & Transferred—April 10, 2013

The Court of Appeal, Fifth District, denied the appellant’s motion to recall the remittitur, indicating that dismissal of the appeal was not due to judicial inadvertence or mistake. Rather, appellant failed to cure his default in the superior court within the time allowed and did not move to vacate the Court of Appeal’s dismissal of the appeal until after its jurisdiction expired. 

The Supreme Court granted review and the matter was transferred to the Court of Appeal, Fifth District, with directions to vacate its order denying the motion and to reconsider its ruling in light of California Rules of Court, rules 8.25(b)(5) [constructive filing doctrine] and 8.264(a)(1) [appellate court must promptly notify parties of its orders].

Review Denied (with dissenting justices)

None. 

Depublished

None.