At its January 17 conference, the Supreme Court issued a grant-and-hold order in one civil case. In criminal/habeas corpus matters, the court granted review in one case, issued three grant-and-hold orders, two grant-and-transfer orders, a habeas corpus order to show cause in a death penalty case, and it abated a death penalty appeal because of the defendant’s death. It also — apparently for the first time — exercised its Prop. 66 authority to transfer a death penalty habeas corpus petition to the superior court for decision (actually, a decision on just those claims that the Supreme Court didn’t deny). Additionally of note, three criminal petition for review denials drew recorded votes to grant — by Justices Mariano-Florentino Cuéllar and Leondra Kruger in one case, Justice Kruger alone in another, and Justice Carol Corrigan in the third.
The grant in the criminal case — Facebook v. Superior Court — is an interesting one. The superior court approved a defendant’s subpoena to Facebook to obtain all the crime victim’s Facebook account information. The Fourth District, Division One, Court of Appeal disagreed in a published opinion, holding the federal Electronic Communications Privacy Act of 1986 precluded enforcing the subpoena and was not trumped by a criminal defendant’s constitutional rights. Interestingly, the Court of Appeal expressly (and reasonably) speculated that the Supreme Court would likely grant and hold the case because the high court already has another somewhat similar Facebook v. Superior Court case pending on review. But this is a straight grant and the court specified five issues that the parties are to address in their briefs on the merits.
The civil case grant-and-hold order is in Melamed v. Cedars-Sinai Medical Center, an anti-SLAPP case involving a physician’s claims against a hospital that summarily suspended his staff privileges. [Disclosure: Horvitz & Levy represented an amicus curiae in the Court of Appeal.] The case is being held pending a decision in Wilson v. Cable News Network, Inc., which presents the issue: In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive? Wilson itself was a grant-and-hold case, until the court un-held it last July. In Melamed, the Second District, Division One, Court of Appeal in an unpublished opinion reversed the grant of the anti-SLAPP motion. This is the second time the Supreme Court has granted review in this appeal. The first time, the court granted review and transferred the case back to the Court of Appeal for reconsideration in light of Park v. Board of Trustees of the California State University (2017) 2 Cal.5th 1057.