At a very busy Wednesday conference, the Supreme Court’s actions of note included:
- Most review grants garner affirmative votes from all seven justices. The court’s decision to hear In re Scoggins is an exception, Justice Ming Chin not joining his colleagues in granting the petition for review. Scoggins is a habeas corpus proceeding that was initiated in the Supreme Court, which two years ago issued an order to show cause, returnable in the Third District Court of Appeal. That court, in a divided unpublished opinion, upheld the prisoner’s life-without-parole sentence for a fatal shooting. The prisoner was not the shooter, nor did he intend the shooting, but he did plan to have the shooter beat and rob the victim.
- Two weeks after the filing of the opening brief on the merits, the court dismissed review as improvidently granted in Bottini v. City of San Diego. Review was granted in December. The issue, as summarized by court staff, was: “Does the ‘substantially advances’ formula used in Landgate, Inc. v. California Coastal Com’n (1998) 17 Cal.4th 1006 or the Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 test (see Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528) determine whether there has been a regulatory taking under the California Constitution?” The dismissal of review likely won’t improve the court’s reputation with two prominent practitioners in appeals and eminent domain law, who recently said the court in the past had engaged in an “anti-property rights holy war.”
- The court granted and held in another anti-SLAPP case, Rall v. Tribune 365 LLC. Rall is on hold for Wilson v. Cable News Network, Inc., which presents the issue: In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive? The Second District, Division Eight’s published opinion in Rall affirmed the granting of anti-SLAPP motions that disposed of a lawsuit that was filed by a former Los Angeles Times political cartoonist and blogger after the Times publicly questioned the accuracy of one of his blog posts. The Supreme Court sent an oral argument letter in Wilson two months ago.
- It’s rare for the court to grant review and immediately transfer the case back to a Court of Appeal that has already issued a full written opinion, but that’s what happened in County of Butte v. Department of Water Resources. The court told the Third District to reconsider the case in light of the Supreme Court’s 2017 decision in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, which held that federal law does not preclude state public entity compliance with CEQA regarding a railroad project that the state owns (the U.S. Supreme Court denied cert last May). The Court of Appeal’s now-vacated December 2018 County of Butte published opinion, which did not mention the Friends of the Eel River case, held that California courts had no jurisdiction to review the environmental sufficiency of a state department’s federal application to extend its license to operate Oroville Dam and its facilities as a hydroelectric dam. That jurisdiction, the opinion said, was exclusively in the Federal Energy Regulatory Commission.
- The court restated the issue in Yahoo! Inc. v. National Union Fire Insurance Co., where it recently agreed to answer a question of state law for the Ninth Circuit. [Update: Horvitz & Levy is counsel for National Union in the case.] The restated issue is: “Does a commercial general liability insurance policy that provides coverage for personal injury, defined as injury arising out of oral or written publication, in any manner, of material that violates a person’s right of privacy, and that has been modified by endorsement with regard to advertising injuries, trigger the insurer’s duty to defend the insured against a claim that the insured violated the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) by sending unsolicited text message advertisements that did not reveal any private information?”
- The court denied review in People v. Southward, but Justices Goodwin Liu and Leondra Kruger recorded votes to grant the petition. In an unpublished opinion, the Second District, Division Three, affirmed the denial of a petition to recall the defendant’s sentence under Proposition 36, the Three Strikes Reform Act.
- The court denied review in People v. K.P., but Justice Liu recorded a vote to grant the petition. In the case of a teenager who shot his father to death, the Fourth District, Division One, published opinion held that recent legislation allowing a superior court to strike a firearm enhancement did not apply to a defendant found not guilty by reason of insanity.
- The court transferred four capital habeas corpus petitions to superior courts under Proposition 66.
- In In re Adams, a habeas corpus proceeding, the court issued an order to show cause in the Los Angeles County Superior Court why the prisoner should not get relief on the ground that trial counsel rendered ineffective assistance by failing to investigate petitioner’s mental health history and present such evidence at the competency stage of his trial.
- There were two criminal case grant-and-holds, one criminal case grant-and-transfer, and the court dumped a whopping 22 former grant-and-holds.