At its conference yesterday, the Supreme Court granted the petition for review in Kirzhner v. Mercedes-Benz USA. In a (belatedly) published opinion, the Court of Appeal there held a provision in California’s auto “lemon law” requiring restitution of “registration fees” allows for recovery of only those fees paid when buying the car and not renewal fees. The only amount in controversy in this particular case is $680. [February 23 update: the issue in the case, as summarized by court staff, is, “When a consumer chooses restitution as a remedy for a defective vehicle under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.), is the consumer entitled to receive registration fees paid after the time of sale as part of the restitution payable under Civil Code sections 1794 and 1793.2(d)(2)(B)?”]

Other conference actions of note include:

  • The court un-held a Prop. 47 case, People v. Bullard. The case had been waiting for an opinion in People v. Page, where the court in November held that stealing a cheap car — one worth $950 or less — is a misdemeanor under Proposition 47 for possible sentence reduction purposes. The court directed the Bullard parties to brief: “‘Does equal protection or the avoidance of absurd consequences require that misdemeanor sentencing under Penal Code sections 490.2 and 1170.18 extend not only to those convicted of violating Vehicle Code section 10851 by theft, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession?’ (See People v. Page (2017) 3 Cal.5th 1175, 1188, fn. 5.)”
  • Justice Goodwin Liu recorded a dissenting vote from the denial of review in a criminal case where the Court of Appeal — on remand from the Supreme Court — for the second time rejected a defendant’s claim that the prosecution’s peremptory challenges of two African-American prospective jurors violated Batson/Wheeler, an issue of particular interest to Justice Liu. (See here, here, here, and here.)
  • The court granted and held in Traveler’s Property Casualty Company of America v. Actavis, Inc. Action is deferred pending the court’s decision in Liberty Surplus Insurance Corp. v. Ledesma and Meyer Construction Company, Inc., which will be argued next month. In Ledesma, the court — at the Ninth Circuit’s request — will answer whether there is an “occurrence” under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.
  • The court depublished the Court of Appeal’s opinion in People v. Garcia. The Second District, Division Five, there expressly disagreed with a 2016 Fifth District decision, which had held a pattern jury instruction was erroneous “because it told the jurors they could find charged offenses true by a preponderance of the evidence and then use those findings to infer that [the defendant] had a disposition to commit other charged offenses” (People v. Cruz (2016) 2 Cal.App.5th 1178, 1184).
  • There was one grant-and-hold order in a criminal case. [February 23 update: this is a juvenile LWOP case. The opinion in one such case is filing Monday, but the hold is for two other pending cases which might be mooted by recent legislation.]
  • [February 23 update: the court also transferred to the superior court (presumably under Prop. 66) a death penalty habeas corpus petition for the lower court to decide jury misconduct and ineffective counsel issues. The Supreme Court denied all other claims in the petition.]
  • There were four criminal grant-and-transfer orders.
  • 15 criminal grant-and-hold cases were transferred back to the Courts of Appeal. [February 23 update: the transfers were for reconsideration in light of People v. Page (see above regarding People v. Bullard).]