Supreme Court agrees to decide two government funding cases, passes on a third

Supreme Court actions of note at a very busy double Wednesday conference (“double” because there was no conference last week) included:

• The court granted review in Zolly v. City of Oakland.  In a published opinion, the First District, Division One, Court of Appeal revived a challenge to franchise fees paid to Oakland by two companies who were awarded waste management contracts.  The appellate court concluded the fees are a “tax” that the state constitution requires be approved by the electorate if the plaintiffs can establish the fees are “not reasonably related to the value received from the government.”
• The court also agreed to hear Coast Community College District v. Commission on State Mandates.  Besides granting review, the court depublished the Third District’s opinion.  The court limited the issues to:  “1. Whether regulations that establish minimum conditions entitling California community college districts to receive state aid constitute a reimbursable state mandate within the meaning of article XIII B, section 6 of the California Constitution.  2. Whether a court lacks jurisdiction under article XIII B, section 6 of the California Constitution to make subvention findings on statutes that were not specifically identified in an initial test claim.  3. Whether a court lacks jurisdiction to remand a test claim based on a statute that was the subject of a prior final decision by the Commission on State Mandates.”  The appellate court said the case involves reimbursement claims regarding “27 Education Code sections and 141 regulations.”
• The court didn’t take all government finance case on its conference list, however.  The court denied review in City of Chula Vista v. Drager, where the Third District’s published opinion decided a case that the appellate court said “is primarily a fight between the tax entities who negotiated favorable passthrough agreements before their redevelopment agencies were dissolved, and those who did not, for their pro rata share of the residual pool of money in the redevelopment property tax fund left for distribution after the successor agencies first paid the passthrough agreements in full, enforceable obligations, and administrative costs.”
• The court granted review in Ducksworth v. Tri-Modal Distribution Services, where the Second District, Division Eight, published opinion ruled against two plaintiffs who are claiming racial discrimination and/or sexual harassment in their employment.  The Supreme Court might use the case to decide a summary judgment procedural issue it left open 10 years ago — “whether a trial court’s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535).  The appellate court went with the abuse of discretion standard in the course of concluding one plaintiff’s sexual harassment claim was barred by the statute of limitations.  The opinion also exonerated two staffing agencies that it says provided services exclusively to the company the plaintiffs worked for, “leasing” employees — including the plaintiffs — to the company and providing staffing and administrative services.  The opinion said the agencies “basically were innocent bystanders” regarding the discrimination claims because an undisputed fact in the summary judgment motion established the agencies had no involvement in promotion decisions about their leased employees.
• The court granted review in People v. Esquivel, and it limited the issue to:  “Is the judgment in a criminal case considered final for purposes of applying a later ameliorative change in the law when probation is granted and execution of sentence is suspended or only upon revocation of probation when the suspended sentence is ordered into effect?”  The unpublished opinion by the Second District, Division Five, concluded it’s the former.  The change in the law is Senate Bill 136.
• The court granted review in People v. Shelton, which raises a similar issue to that in People v. Esquivel (see above).  In Shelton, the Second District, Division One, in an unpublished opinion, held Senate Bill 136 didn’t apply to the defendant whose previously suspended sentence was reinstated after he violated probation terms, “because the judgment against him was final before the law became effective.”  It’s possible the Supreme Court will later make Shelton a grant-and-hold for Esquivel, or vice versa.
• The court granted-and-held in D’Arcy v. Schulte, an anti-SLAPP case.  Action is deferred pending a decision in Geiser v. Kuhns, in which the court granted review last month.  In Geiser, the court limited the issue to:  “How should it be determined what public issue or issue of public interest is implicated by speech within the meaning of the anti-SLAPP statute (Code of Civ. Proc., § 425.16, subd. (e)(4)) and the first step of the two-part test articulated in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-150, and should deference be granted to a defendant’s framing of the public interest issue at this step?”  The Fourth District, Division Three, unpublished opinion in D’Arcy held the anti-SLAPP statute didn’t apply to a defamation lawsuit, by an attorney who often represents landlords, based on a highly critical internet post allegedly written by an employee of a nonprofit law firm that represents low income tenants in unlawful detainer cases.
• The court dismissed review in Handoush v. Lease Finance Group, LLC., which was set to decide the enforceability of a contract’s New York forum selection clause that included a waiver of the right to a jury trial.  Review was granted in February, but the court said yesterday it was dismissing review “[i]n light of petitioner’s letter . . . representing that petitioner does not believe it is entitled to pursue this litigation during the pendency of separate New York proceedings, and the absence of any request for relief from default for failure to file a timely opening brief before this court.”
• The court denied review and depublication in In re B.E., a dependency case, but Justice Mariano-Florentino Cuéllar recorded a vote to grant.  The Fourth District, Division Three, in a published opinion, said it was creating a split of authority (including with one of its own opinions, no less) interpreting a statute providing that otherwise-required reunification services can be denied to parents who “resisted prior court-ordered treatment for” drug or alcohol abuse.  The appellate court held “resisted” didn’t include passive resistance “where passive resistance simply means relapse.”  The opinion says, “The bypass provision was intended for parents who refuse to participate meaningfully in a court-ordered drug treatment program, not parents who slip up on their road to recovery.”
• The court denied a depublication request in People v. Torres, but Justice Carol Corrigan recorded a vote to grant review on the court’s own motion.  A divided Fourth District, Division Two, in a published opinion, reversed the denial of a murderer’s compassionate-release petition.  The majority held that, under the relevant statute, “considering whether the inmate deserves to remain — and die — in prison as punishment for his or her offenses or behavior is improper.”
• The court denied review in People v. Zermeno, but Justice Joshua Groban recorded a vote to grant.  A divided Fifth District unpublished opinion affirmed a first-degree murder conviction.  A 49-page concurring and dissenting opinion concluded “defense counsel was ineffective in failing to properly develop the primary theory of defense that [the defendant] acted without deliberation and premeditation, including by not requesting and utilizing a voluntary intoxication instruction.”
• The court granted-and-transferred one case, directing reconsideration in light of the June decision in People v. Stamps.
• There were 14 criminal case grant-and-holds:  two more holding for a decision in In re Milton (see here); four more holding for People v. Lewis (see here); two more holding for People v. Lopez (see here); one more holding for In re Gadlin (see here); one more holding for People v. Lemcke (originally People v. Rudd) (see here); two more holding for People v. Tirado (see here); one holding for People v. Garcia (see here); and one holding for People v. Raybon (see here).