Supreme Court will decide issues of jury trial waivers and admissibility of prior deposition testimony

At its conference this week, the Supreme Court actions of note included:

• The court granted review in Handoush v. Lease Finance Group, LLC., where the First District, Division Three, Court of Appeal in a published opinion refused to enforce a contract’s New York forum selection clause because it included a waiver of the right to a jury trial, a waiver the appellate court says works in New York but is invalid in California.  The appellate court noted a split of authority about the standard of appellate review in forum selection clause cases, but declined to take sides because it found trial court error under either standard.  [Related:  Bob Egelko in the San Francisco Chronicle:  “Court to decide if property owners may sign away rights to jury trial in contract tiffs.”]
• The court also agreed to hear Berroteran v. Superior Court, apparently to resolve a conflict about whether deposition testimony from earlier litigation is admissible at trial in a later action against a party who was also a party in the earlier case.  An Evidence Code section provides the testimony is an exception to the hearsay rule when the party “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”  In Berroteran, the published opinion of the Second District, Division One, concluded prior testimony was admissible, expressly disagreeing with a 1984 Fourth District, Division Two, decision.  [Disclosure:  Horvitz & Levy filed the petition for review.]
• The court granted-and-held in Bank of America v. Phillips (Justice Ming Chin was recused), back-burnering the case until Sheen v. Wells Fargo Bank is decided.  (See here.)  Sheen raises the issue whether a mortgage servicer owes a borrower a duty of care to refrain from making material misrepresentations about the status of a foreclosure sale following the borrower’s submission of, and the servicer’s agreement to review, an application to modify a mortgage loan.  In Phillips, the unpublished opinion of the First District, Division Three, found no duty.  A concurring justice explained a change of mind — he had signed a 2014 Division Three opinion going the other way, but he now agrees with the appellate court opinion in Sheen, which disagreed with the 2014 opinion.
• Conservatorship of D.P. is another grant-and-hold, with action deferred pending the court’s opinion in Conservatorship of K.P., where the issue is:  “Must the trier of fact find, beyond a reasonable doubt, that the objector is unwilling or unable voluntarily to accept meaningful treatment before a conservator may be appointed, or reappointed, under the Lanterman-Petris-Short Act?”  (See here.)  The partially published opinion of the Second District, Division Five, concluded that “unwillingness or inability to accept voluntarily meaningful treatment was not a required element” of a reappointment.
• The court granted and transferred in Prescription Opioid Cases, after the Second District, Division Three, summarily denied a writ petition.  The appellate court must now decide the writ petition’s merits.  Justices Chin, Carol Corrigan, and Leondra Kruger were all recused.  If one of the remaining justices had not voted to grant review, the court might have enlisted three Court of Appeal justices as pro tems to rule on the petition for review.  (See here.)
• There was one other civil case grant-and-transfer, which was done at the Court of Appeal’s request after the summary denial of a writ petition.
• The court denied review in People v. Zamudio, but Justice Joshua Groban recorded a vote to grant.  The Fourth District, Division Two, in a 2-1 unpublished opinion, held the superior court properly denied the self-representation motion of the defendant who had been found competent to stand trial.  The dissenting justice said the issue concerns application of the rule stated in a U.S. Supreme Court opinion that “allowed states to deny the right of self-representation to so-called ‘gray area’ defendants who are competent to stand trial but not competent to represent themselves.”
• There were four criminal case grant-and-transfers, including one matter (In re Singh) where the court directed the Third District, which had summarily denied a pro per’s habeas corpus petition, to decide whether relief should be granted based on a false evidence claim.  The other three join a long list of cases requiring reconsideration in light of Senate Bill 136.  (See here.)
• There were ten criminal case grant-and-holds:  four more on hold for People v. Lopez (see here); three more for People v. Frahs (see here); and one each for People v. Orozco (see here) (argued in January), People v. Jimenez (see here) (argued in December), and People v. Tirado (see here).
• The court transferred to the superior court under Proposition 66 another capital habeas corpus petition.  (See here.)