At its conference yesterday, the Supreme Court ordered expedited superior court hearings on a writ petition seeking to release juveniles from Los Angeles County custody because of the COVID-19 pandemic.  But the court also is taking second and third looks at some decisions the Court of Appeal is sending its way.  Its actions of note included:

  • One repeat case is Serova v. Sony Music Entertainment, an anti-SLAPP/UCL/CRLA case concerning the alleged misleading marketing of a posthumous Michael Jackson album.  It was previously a grant-and-hold for then-pending Inc. v. Double Verify Inc. and was later remanded to the Second District, Division Two, Court of Appeal for reconsideration in light of the FilmOn decision.  The appellate court’s second, published opinion again held the defendants’ “challenged statements were . . . sufficiently connected to an issue of public interest to warrant anti-SLAPP protection” and said, “we conclude that our original opinion was correct.”  We’ll see if the Supreme Court agrees, because it granted review a second time yesterday.

[April 25 update:  The court might be interested in more than the anti-SLAPP issue in Serova.  The questions presented in the case — as summarized by court staff and now appearing on the court’s website — are:  “(1) Do representations a seller made about a creative product on the product packaging and in advertisements during an ongoing controversy constitute speech in connection with an issue of public interest within the meaning of the anti-SLAPP statute (Code of Civ. Proc., § 425.16)?  (2) For purposes of liability under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.), do the seller’s marketing representations constitute commercial speech, and does it matter if the seller lacked personal knowledge that the representations were false?  (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939.)”]

  • People v. Windfield — a murder and attempted murder case — is a three-timer.  First, the Supreme Court granted and held on its own motion, later transferring for reconsideration in light of People v. Franklin, a juvenile life sentence opinion (see here).  Then the court again granted and held, and subsequently transferred for reconsideration in light of People v. Canizales, a decision that narrowed the kill-zone theory for attempted murder (see here).  The Fourth District, Division Two, published opinion again affirmed Windfield’s conviction and sentence.  Now, the Supreme Court has granted review and for a third time transferred the case to the appellate court, to reconsider in light of Senate Bill 620, which allows for the striking of firearm enhancements.  For good measure, the Supreme Court also depublished the Court of Appeal’s opinion.
  • The court denied review in People v. Palomar, but Justices Goodwin Liu and Joshua Groban recorded votes to grant.  With a majority, a dissenting, and a concurring opinion, the Second District, Division Six, affirmed a second degree murder conviction, finding substantial evidence to support an implied malice theory.
  • The court asked for supplemental briefing in People v. Aguayo, an un-hold case (see here).  Initially, the court asked the parties to address whether assault by means of force likely to produce great bodily injury is a lesser included offense of assault with a deadly weapon.  Now the court wants to know:  “Are Penal Code section 245, subdivision (a)(1) [assault upon the person of another with a deadly weapon or instrument other than a firearm] and section 245, subdivision (a)(4) [assault upon the person of another by any means of force likely to produce great bodily injury] merely different statements of the same offense for purposes of section 954?  If so, must one of defendant’s convictions be vacated?”  (Links and brackets added.)
  • There were three criminal case grant-and-holds:  one holding for a decision in People v. Aguayo (see here and above), one holding for People v. Anderson (see here), and one more for People v. Tirado (see here).