Yesterday’s double conference — the first conference since Justice Ming Chin left the court — will probably be best remembered for the cases the Supreme Court refused to hear.  As mentioned, the Supreme Court decided to not inject itself into a dispute about when to open schools for in-person classes during the COVID-19 pandemic.  There were other actions of note, including at least two pandemic docket denials besides the school cases.  An inordinate number of the actions involved First District Court of Appeal matters:

  • Let’s start with the one case the court did agree to hear — Walker v. Superior Court, which presents a split of authority about another Sanchez issue (see here).  A First District, Division Four, published opinion upheld a superior court finding of probable cause to civilly commit the petitioner as a sexually violent predator.  Disagreeing with 2019 decisions by the Second District, Division Two (in which review was denied) and the First District, Division One (no petition for review was filed), the appellate court concluded, “At the probable cause hearing, but not at Walker’s SVP trial still to occur, hearsay statements in [two mandated psychological evaluations] may be considered even where they are not independently proven by competent evidence or covered by another hearsay exception.”
  • The two other pandemic docket cases were:
  1. The court denied review and a depublication request in Stanley v. Superior Court.  The First District, Division Four, opinion rejected a criminal defendant’s claim that emergency extension orders by the Governor and Chief Justice (see here, here, and here) deprived him of his right to a speedy trial.  The appellate court said, “While we doubt that the orders are unlawful, we need not engage in an extended analysis of defendant’s contentions because the severity of the COVID-19 pandemic and the impact it has had within this state independently support the trial court’s finding of good cause to continue defendant’s trial under Penal Code section 1382.”  Chief Justice Tani Cantil-Sakauye was recused.  (See here, here, and here.)
  2. The court denied a district attorney’s depublication request — there was no petition for review — in Bullock v. Superior Court, where the First District, Division Five, held that the superior court had not established good cause to not conduct a criminal defendant’s preliminary hearing during a 15-day period when the court was closed for most proceedings because of the pandemic.  The appellate court faulted the superior court for not showing “a nexus between the pandemic and the Superior Court’s purported inability to conduct Petitioner’s preliminary hearing in a timely fashion.”  It also distinguished Stanley (see above) because “preliminary hearings present different considerations in the good cause analysis” than trial continuances.
  • The court also denied review in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, declining to resolve a question left open by its 2017 5-2 decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924.  In California Cannabis, the court held that a state constitutional provision, which was added by initiative to limit the taxing power of “local governments,” does not affect the ability of voters themselves to impose taxes by initiative.  The court has been criticized for not explaining whether the decision also means that those initiatives are exempt from the constitutional provision’s requirement that a two-thirds vote is needed to approve a local tax increase.  (See here and here.)  In All Persons Interested, the First District, Division Four, published opinion held only a majority vote is necessary to approve a voter-sponsored special tax initiative.  The appellate court construed “the supermajority vote requirements . . . as coexisting with, not displacing, the people’s power to enact initiatives by majority vote.”
  • The court denied review in Pankey v. Petco Animal Supplies, Inc., but it depublished the Fourth District, Division One, divided opinion that affirmed a defense judgment after a jury trial in a negligence and products liability case for the death of plaintiff’s son caused by a rare bacterial infection the 10-year-old contracted from a rat bought at the defendant’s pet store.  The plaintiff claimed the jury should have been instructed on an alternative strict liability design defect theory, the consumer expectations test, but the appellate court majority held that “a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.”
  • The court denied review in Save Berkeley’s Neighborhoods v. Regents of the University of California, but Justice Mariano-Florentino Cuéllar recorded a vote to grant.  The First District, Division Five, partially published opinion held the plaintiff organization adequately pleaded that the Regents had violated the California Environmental Quality Act when, without conducting further environmental review, they increased UC Berkeley’s enrollment well beyond the growth projected in an earlier environmental impact report.  The appellate court concluded that the relevant statute “does not shield public universities from complying with CEQA when they make discretionary decisions to increase enrollment levels.”  Justice Joshua Groban was recused.
  • There were 12 criminal case grant-and-holds:  seven more holding for a decision in People v. Lewis (see here); three more holding for People v. Lopez (see here); one more holding for O.G. v. Superior Court (see here); and one more holding for People v. Esquivel (see here and here).
  • The court transferred a grant-and-hold — Quidel Corporation v. Superior Court (see here) — so the Court of Appeal can reconsider in light of last month’s opinion in Ixchel Pharma, LLC v. Biogen, Inc.   [Disclosure: Horvitz & Levy represents Quidel.]
  • The court transferred a grant-and-hold — Gulf Offshore Logistics, LLC v. Superior Court (see here) — for reconsideration in light of the June decisions in Ward v. United Airlines, Inc. and Oman v. Delta Air Lines, Inc.
  • Two criminal case grant-and-holds were transferred to the Courts of Appeal for reconsideration in light of the June decision in In re Scoggins.