Supreme Court will hear follow-up to its Tirado decision on sentence enhancements

At the Supreme Court’s conference yesterday, actions of note included:

  • Enhancement discretion. The court granted review in People v. McDavid. A partially divided unpublished opinion by the Fourth District, Division One, Court of Appeal, addressed three different issues and the Supreme Court has not limited the issues, but there is only one issue on which the Division One justices disagreed — the scope of the superior court’s discretion to strike a firearm sentence enhancement and impose a lesser enhancement. Applying the Supreme Court’s January decision in People v. Tirado (2022) 12 Cal.5th 688, the majority thought the trial court had more limited options than the dissent did. The Attorney General filed a request to publish the opinion, which both the appellate court and the Supreme Court denied.
  • Punitive damages reversal. The court denied review in McNeal v. Whittaker, Clark & Daniels, Inc., but Justice Goodwin Liu recorded a vote to hear the case. A divided Second District, Division Eight, published opinion overturned a $3,000,000 punitive award against the supplier of talc with asbestos fibers that was found to be a cause of the plaintiff’s mesothelioma. The majority agreed that “the evidence was insufficient to establish any officer, director or managing agent [of the defendant] acted with the malice, oppression or fraud necessary for an award of punitive damages.” The dissent claimed that the “jury decision was reasonable” and that “appellate courts [should] allow punitive damages to give businesses the proper incentive to promote public safety.” Horvitz & Levy’s California Punitive Damages blog did a comprehensive write-up of the McNeal opinion.
  • Employment case depublication. The court denied review in Meza v. Pacific Bell Telephone Co., but depublished the partially published opinion of the Second District, Division Three. The previously published portion rejected an argument that an employer had violated a statutory wage statement requirement “by failing to include the ‘rate’ and ‘hours’ attributable to [the employer’s] overtime true-up payments.”
  • Strong and Lewis actions. Last month’s decision in People v. Strong (2022) 13 Cal.5th 698 and last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 — both involving 2018’s Senate Bill No. 1437, which narrowed murder liability under the felony murder theory and eliminated it under the natural and probable consequences doctrine — affected dozens of cases this week. The court granted review in four cases and transferred them back to the Courts of Appeal for reconsideration in light of Strong. Also, it shed 49 grant-and-holds: 34 will be reconsidered in light of both Strong and Lewis, five will be reconsidered in light of just Strong, two will be reconsidered in light of only Lewis, and the court dismissed review in eight cases, four of which had been holding for Lewis and Strong and four had been holding for just Lewis. Some of the grant-and-holds had been sitting on the shelf for over two years. Yesterday’s decisions might have gotten rid of the last of the Lewis grant-and-holds; there had been at least 327 of them.  (See here.)
  • Criminal case grant-and-hold. There was just one criminal case grant-and-hold, which is now waiting for a decision in People v. Catarino (see here).

Supreme Court will hear ICWA case

At the Supreme Court’s conference yesterday, actions of note included:

  • The fish and the bees, an explanation what a review denial doesn’t mean, and Justice Guerrero’s first dissent.
  • ICWA. The court granted review in In re Dezi C., a dependency case raising a recurring issue about compliance with the federal Indian Child Welfare Act. The grant comes as the U.S. Supreme Court weighs whether to strike down the Act itself in Haaland v. Brackeen. In its published Dezi C. opinion, the Second District, Division Two, Court of Appeal, held to be harmless the failure by the Los Angeles Department of Children and Family Services to conduct a required initial inquiry whether the children at issue had American Indian heritage. Division Two reported that “California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless” and then said, “we propose a fourth rule . . . and explain why we respectfully decline to adopt any of the three previously formulated rules.”
  • Compensation for the wrongly convicted. The court dumped two cases, the fully briefed Souliotes v. California Victim Compensation Board (see here) and Larsen v. California Victim Compensation Board, which was a grant-and-hold for Souliotes (see here). The Court of Appeal opinions in the cases conflicted concerning whether certain federal court findings were sufficient to require state compensation for wrongly convicted persons. The Souliotes court ruled against compensation and the Supreme Court sent the case back with directions to reconsider in light of Senate Bill No. 446 (Stats. 2021, ch. 490, § 1), which made it easier to qualify for compensation, and Senate Bill No. 632 (Stats. 2022, ch. 133, § 1(a)), which appropriated compensation for five specific individuals, including $841,820 for Mr. Souliotes. In Larsen, where the appellate court held in favor of compensation, the Supreme Court dismissed review. Horvitz & Levy was co-counsel for Mr. Souliotes in the Supreme Court.
  • Personal jurisdiction. After the Second District, Division Six, summarily denied a writ petition challenging a superior court order finding specific personal jurisdiction, the Supreme Court in Jungheinrich AG v. Superior Court ordered the appellate court to issue an alternative writ, which will require a written decision on the merits.
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds:  one more waiting for the finality of the decision in People v. Tran, which filed late last month; two more waiting for People v. Lynch (see here); one more holding for People v. Delgadillo (see here), which will be argued in 11 days; one more holding for People v. Espinoza (see here); and one more holding for People v. Prudholme (see here).
  • Strong grant-and-transfers. The court granted review in five cases and transferred them back to the Courts of Appeal for reconsideration in light of last month’s decision in People v. Strong (2022) 13 Cal.5th 698.

Supreme Court to decide forum selection case

At the Supreme Court’s conference yesterday, a double one, actions of note included:

  • Forum selection: The court agreed to hear Gerro v. BlockFi Lending LLC, but only part of the case. In a lawsuit involving a loan collateralized by bitcoin, the court limited the issue to be briefed and argued to: “Did the Court of Appeal correctly hold that this action must remain in California despite the contractual forum selection clause?” Uncommonly for a civil case, review comes after an unpublished opinion, this one by the Second District, Division One, Court of Appeal. Also atypical for a review grant, the court was not unanimous — Justice Goodwin Liu did not vote for review. Division One ruled against enforcing a Delaware forum selection clause because the clause included a predispute jury waiver and because “California has a fundamental policy against such a waiver,” a policy that “could be violated if [the case] were heard in Delaware.” In July, the Supreme Court granted-and-transferred a different forum selection clause case from another Court of Appeal. (See here.)
  • Unusual disposition and weird partial publication order. The court granted review in In re Z.O. and sent the case back to the Fourth District, Division Three, “with directions to vacate its decision, allow further briefing, and reconsider the appropriate disposition in light of [three Court of Appeal opinions].” The Division Three partially published opinion had “conditionally affirmed” a dependency court order, remanded the matter for further action on issues concerning a guardian ad litem appointment and the Indian Child Welfare Act, and said, “should the trial court make express findings that a GAL was required at the time of the appointment, and should it find ICWA inapplicable, our affirmance resolves the case.” That doesn’t seem to fit any of the possible dispositions under Code of Civil Procedure sections 43 and 906. Vacating the decision depublishes the opinion (see here), which is just as well, because the appellate court’s partial publication order is weird. Usually, such orders identify only entire sections of an opinion that are to be unpublished, but the Z.O. order picks out paragraphs, sentences within paragraphs, and even words and phrases within sentences for nonpublication.
  • Covid statute of limitations. The court denied review in Committee for Sound Water and Land Development v. City of Seaside, where the Sixth District published opinion held causes of action under the California Environmental Quality Act were time barred. The appellate court construed Judicial Council actions adopting an emergency rule at the beginning of the Covid pandemic that tolled civil statutes of limitations and later cutting back on that tolling for short limitations periods, like the ones for CEQA lawsuits. The Sixth District rejected arguments that, as it summarized, “the shortened limitations period provided by [the tolling reduction] was unreasonable and arbitrary, constitutes an improper ex post facto law that cut off the [plaintiff’s] access to courts, and the Judicial Council’s choice of August 3, 2020, as the end of the tolling period was improperly influenced by lobbyists.” Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, most probably because they are, respectively, the chair and a member of the Judicial Council, which issued and amended the emergency rule.
  • Covid required remote appearance. The court denied review in People v. Whitmore. The Fourth District, Division Three, published opinion refused to reverse a conviction based on a defendant’s claim that his right to be present in court was violated by requiring him — because of a jail lockdown due to a Covid outbreak — to appear by videoconference at a December 2020 hearing on posttrial motions and sentencing. Noting that “the trial court had to balance Whitmore’s right to be physically present against the need to minimize the danger created by the spread of a contagious disease,” Division Three concluded that the remote appearance “during a historic public health crisis did not thwart the fairness of the proceeding.” The court did find the forced virtual appearance did violate statutory law, but said the violation was harmless. “The fact of the matter, as confirmed by reliable medical and scientific data,” the court stated without citation, “is that the COVID-19 pandemic prevented trial courts throughout California from holding in-person hearings safely in December 2020.” The court denied review in a similar case in July. (See write-up of People v. Churchill here.) Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, most probably because they are, respectively, the chair and a member of the Judicial Council, which adopted an emergency rule allowing for remote criminal proceedings if the defendant consents, which Whitmore did not.
  • Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more waiting for the finality of the decision in People v. Tran, which filed late last month; two more waiting for People v. Lynch (see here); one more waiting for both Tran and Lynch; two more waiting for People v. Curiel (see here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; and one more holding for People v. Ramirez (see here), which was argued last week.
  • Criminal case grant-and-transfer: The court granted review in one matter and sent the case back to the Court of Appeal for reconsideration in light of last month’s decision in People v. Strong (2022) 13 Cal.5th 698. The remittitur issued just yesterday in Strong. In the coming weeks, the court will likely be getting rid of a lot of Strong grant-and-holds.
  • New-legislation remand: The court granted a pro per’s petition for review in In re Wade and transferred the case back to the Third District for issuance of an “order to show cause why petitioner is not entitled to a new sentencing hearing in light of Senate Bill No. 567.” (Link added.) The appellate court had summarily denied the habeas corpus petition without prejudice, saying, “petitioner retains a potential remedy by direct appeal, and habeas corpus is not a substitute for appeal.”

Supreme Court will address prosecutorial discretion in Three Strikes case and will answer wage & hour questions from the Ninth Circuit [Updated]

Notable results from the Supreme Court’s conference yesterday:

  • The Supreme Court granted Los Angeles District Attorney George Gascón’s petition seeking review of a decision by the Second Appellate District, Division Seven, in Association of Deputy District Attorneys for Los Angeles County v. Gascón. The case involves whether Gascón has the authority to prevent the prosecutors in his office from invoking the Three Strikes law to obtain sentencing enhancements. After Gascón ordered his deputies not to enforce the Three Strikes law, the union representing the deputy district attorneys sued, arguing that Gascón’s policy would force them to violate their obligations to enforce the Three Strikes law. The trial court sided with the union and so did the Court of Appeal, ruling in a published opinion that Gascón does not have discretion to adopt a policy that completely frustrates the purpose and mandate of the Three Strikes law. In granting review, the Supreme Court announced that the Court of Appeal’s opinion will remain citable not only for its persuasive value, “but also for the limited purpose of establishing the existence of a conflict in authority . . . .” In other words, trial courts in future cases can consider this opinion when choosing whether to follow any other conflicting cases already on the books. (See here.)
  • The Supreme Court also agreed to answer questions certified by the Ninth Circuit in Huerta v. HSA Electrical Contractors, Inc., a wage & hour case. The court has granted 17 of the last 18 Ninth Circuit requests for help in resolving California law. The questions certified by the Ninth Circuit in this case are:
    • Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a Security Gate compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 16?
    • Is time spent on the employer’s premises in a personal vehicle, driving between the Security Gate and the employee parking lots, while subject to certain rules from the employer, compensable as “hours worked” or as “employer-mandated travel” within the meaning of California Industrial Welfare Commission Wage Order No. 16?
    • Is time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 16, or under California Labor Code Section 1194, when that time was designated as an unpaid “meal period” under a qualifying collective bargaining agreement?

[September 6 update:

Thanks to Curt Cutting — writer of Horvitz & Levy’s excellent blog on punitive damages — for reporting on last week’s conference. The only additional items to mention are:

Supreme Court will hear arbitration waiver, dependency cases

At the Supreme Court’s conference yesterday, actions of note included:

  • Arbitration waiver. The court granted review in Quach v. California Commerce Club, where the published part of a 2-1 opinion by the Second District, Division One, Court of Appeal held a defendant had not waived its right to arbitrate a wrongful termination lawsuit by, as the appellate court described it, “waiting 13 months after the filing of the lawsuit to move to compel arbitration, and by engaging in extensive discovery during that period.” The majority wrote, “Our Supreme Court has made clear that participation in litigation alone cannot support a finding of waiver, and fees and costs incurred in litigation alone will not establish prejudice on the part of the party resisting arbitration.” The dissent, noting that “[t]he unfairness of compelling non-unionized employees to forfeit their access to the civil justice system in favor of private arbitration is well recognized,” asserted deference should have been given to the superior court, which “essentially concluded that Commerce Club’s explanations [for delay] were a pretext that had been fabricated to justify its tardy motion to compel arbitration.” The opinion was filed less than two weeks before the U.S. Supreme Court held prejudice to the other side is not essential to finding an arbitration waiver in federal courts. (Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708.) In the unpublished portion of its opinion, Division One concluded the arbitration agreement was not unconscionable. The California Supreme Court has not limited the issues on review, at least not yet.
  • Dependency. The court also agreed to hear In re N.R. The Second District, Division Five, unpublished opinion affirmed a juvenile court order that removed a 17-month-old from his father’s custody based on a finding the boy was at substantial risk of serious physical harm because of the father’s cocaine habit. Division Five wrote, “Father’s regular cocaine use, which he described as occurring once or twice every other week, combined with the positive test result showing a high level of cocaine metabolites while he was responsible for caring for [his son], were sufficient to demonstrate he abused, not just used, cocaine.”
  • Governor’s emergency powers. The court denied the petition for review and a depublication request in 640 Tenth, LP v. Newsom. The partially published opinion by the Fourth District, Division One, rejected challenges by restaurant and gym owners to Governor Gavin Newsom’s emergency orders restricting business operations during the Covid pandemic. The owners argued that the Governor had violated California’s Administrative Procedure Act and that the orders effected an unconstitutional taking without compensation. Division One, however, did express sympathy for “the position some Owners find themselves in and the significant financial losses they allege.”
  • Criminal case grant-and-holds. There were 5 criminal case grant-and-holds: one more waiting for the decision in People v. Tran, which should file by September 12 (see also here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; one more holding for People v. Espinoza (see here); one more waiting for People v. Curiel (see here); and one holding for People v. Lynch (see here).

Supreme Court will hear cases on police misconduct complaints and good faith settlement procedure

Besides agreeing to hear two cases, the Supreme Court at its conference yesterday made three unusual grant-and-transfer orders, unusual in that they were less than unanimous. Actions of note included:

  • Police misconduct complaints. The court granted review in Los Angeles Police Protective League v. City of Los Angeles to resolve a conflict between one of its own opinions and a later Ninth Circuit decision. Penal Code section 148.6(a)(2) requires written complaints of police misconduct to be accompanied by signed acknowledgements that filing a knowingly false complaint can lead to a misdemeanor prosecution. Twenty years ago, the court rejected a claim that the statute violates constitutional free speech rights. (People v. Stanistreet (2002) 29 Cal.4th 497.) Three years later, the Ninth Circuit concluded “the statute impermissibly discriminates on the basis of a speaker’s viewpoint in violation of the First Amendment.” (Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215, 1217.) The U.S. Supreme Court denied certiorari in both cases. In the case now on review, the Second District, Division Seven, Court of Appeal said in a published opinion that the decision whether to enforce the statute leaves the defendant City “caught between the Scylla of Chaker and the Charybdis of Stanistreet,” but it concluded, “Because the United States Supreme Court has not ruled section 148.6 or an analogous statute is unconstitutional, we must follow Stanistreet.” The California Supreme Court has limited the issues on review to: “(1) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), constitute improper viewpoint discrimination in violation of the First Amendment? (2) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), impose an impermissible burden on complainants’ ability to file allegations of misconduct against peace officers? (3) Is it error to compel the City to comply with a statute that has been ruled unconstitutional by the United States Court of Appeals for the Ninth Circuit?”
  • Good faith settlements. The court also agreed to hear Pacific Fertility Cases, where the First District, Division One, published opinion held a superior court finding that a settlement was made in good faith was reviewable by writ petition only and not by appeal. Division One recognized there’s a split of Court of Appeal authority on the procedural issue. The Supreme Court limited the issue to: “Whether a petition for writ of mandate is the exclusive means of challenging an order approving or denying a good faith settlement under Code of Civil Procedure section 877.6.” Horvitz & Levy represents the appealing defendant and filed the successful petition for review.
  • Sexual abuse liability. Despite a full Third District published opinion in the case, the Supreme Court granted review on its own motion in Doe v. Anderson Union High School District and transferred the case back to the Court of Appeal “with directions to vacate its decision and reconsider the cause in light of Brown v. USA Taekwondo (2021) 11 Cal.5th 204.” (See here.) Vacating the decision depublishes the opinion. There was a depublication request, but no petition for review. The Third District affirmed a defense summary judgment in an action for negligent hiring and supervision arising from a high school teacher’s on-campus sexual relationship with a student. Only Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Joshua Groban, and Patricia Guerrero voted to grant review. It’s unusual to return a case for reconsideration after the Court of Appeal has already issued an opinion that could have or did consider the authority for which reconsideration is ordered, but that has happened in two other recent Third District cases. (See here and here.)
  • Cisgender prisoners. The court granted a pro per’s petition for review in In re Kakowski and sent the case back to the Fourth District, Division One, to decide whether a policy by the Department of Corrections and Rehabilitation “prohibiting cisgender inmates who are housed at male institutions access to the toiletries and hygiene products specified in the [pro per’s writ] petition — while simultaneously allowing such access to transgender inmates and inmates having symptoms of gender dysphoria housed at male institutions — violates the equal protection clauses of the state and federal Constitutions.” Justice Groban did not vote to grant review.
  • Mental health diversion. In People v. Superior Court (Watson), the court granted a district attorney’s petition for review and directed the Sixth District, which had summarily denied the DA’s writ petition, to decide on the merits the claim that “the superior court erred by granting the request for mental health diversion.” Only Chief Justice Cantil-Sakauye and Justices Corrigan, Leondra Kruger, and Martin Jenkins voted for review. The court is poised to decide a timing issue regarding mental health diversion in People v. Braden. (See here.)
  • In-person parole hearings. The court denied review in In re Ernst, but Justices Goodwin Liu and Leondra Kruger recorded votes to grant. The Fifth District’s unpublished opinion held that neither statutory nor constitutional provisions require an in-person hearing for determinately sentenced nonviolent prisoners eligible for parole consideration under Proposition 57. Justice Liu has dissented from the denial of review on this issue before, including issuing a separate statement in one case. (See here and here.)
  • Jury waiver. Justice Liu also recorded a dissenting vote from the denial of review in People v. Peterson S., where a 2-1 unpublished opinion by the Second District, Division Six, held that the defendant “knowingly and intelligently waived his right to a jury trial” before he was ordered recommitted as a mentally disordered offender. Last week, Justice Liu dissented in a death penalty appeal, claiming the majority “once again lowers the bar for a valid waiver.” (See here.)
  • Noneconomic restitution. Over Justice Kruger’s recorded dissent, the court denied review in People v. Carrillo. A 2-1 unpublished opinion by the First District, Division One, held, among other things, that restitution for noneconomic losses can be awarded not only to the child victim of certain child sex crimes, but to the child’s parents as well.
  • Habeas corpus discovery costs. In In re Fearence, the court directed issuance of an alternative writ to determine whether a superior court should vacate its order “requiring petitioner to ‘send an attorney or investigator to copy or pay for copies of [the] file’ and . . . enter a new order allowing access to the items requested without an advance payment requirement (see Pen. Code, § 1054.9, subd. (e); Davis v. Superior Court (2016) 1 Cal.App.5th 881, 889).” Section 1054.9 governs discovery for habeas corpus petitions of certain materials in the possession of the prosecution and law enforcement authorities.
  • Criminal case grant-and-holds. There were 3 criminal case grant-and-holds, all waiting for the decision in People v. Tran, which should file by September 12 (see also here).

Supreme Court will decide easement, sentencing cases

At the Supreme Court’s conference yesterday, a double one, actions of note included:

  • Implied easements. The court agreed to hear Romero v. Shih, at least to decide this limited issue: “Did the trial court correctly find the existence of an implied easement under the facts?” The trial court granted an implied easement and, alternatively, an equitable easement over a property owners’ 1,296-square-foot encroachment on their neighbors’ property. The equitable easement would entitle the neighbors to compensation of $69,000. In a published opinion, the Second District, Division Eight, Court of Appeal reversed regarding the implied easement, but affirmed regarding the equitable easement. It said the case is one of first impression about “exclusive implied easements” as opposed to “prescriptive easements.”
  • Sentencing. The court also granted review in People v. Lynch, where the partially divided Third District unpublished opinion affirmed the superior court’s imposition of an upper-term sentence for domestic violence. The appellate court held the trial court’s reliance on three of eight aggravating circumstances was improper under legislation applicable retroactively — Senate Bill 567 — but the error was harmless, because there were no mitigating circumstances and “[f]ive aggravating circumstances remain.” The dissent said that the sentencing decision “rested on multiple statements that were improper” and the appellate court “must reverse when, as is the case here, we ‘cannot determine whether the improper factor was determinative for the sentencing court.’ ”
  • PAGA arbitration. There were two grant-and-holds for Adolph v. Uber Technologies, Inc., in which the court granted review last month and then limited the issue to: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” The two back-burnered cases are Sanchez v. M C Painting and Wing v. Chico Healthcare & Wellness Centre, where a Fourth District, Division One, unpublished opinion and a Second District, Division Five, published opinion, respectively, affirmed the denial of employer petitions to compel arbitration of PAGA actions.
  • Consumer reports. The court denied review in Herbert v. Barnes & Noble, Inc., but it depublished the opinion of the Fourth District, Division One, that reversed a defense summary judgment in a putative class action claiming a violation of the federal Fair Credit Reporting Act. Instead of providing job applicants with a standalone disclosure stating that the employer can get the applicant’s consumer report, the defendant’s disclosure allegedly included extraneous language unrelated to consumer reports. The appellate court held, “Unlike the trial court, we conclude a reasonable jury could find that Barnes & Noble’s alleged FCRA violation was willful.”
  • Elder abuse. The court also denied review and depublished the Third District’s opinion in Williams v. National Western Life Insurance Company. An earlier published  opinion in the case had reversed an award, including $2,500,000 in punitive damages, against an insurance company regarding the sale of the company’s annuity, because, the appellate court concluded, the person who sold the annuity was not the company’s agent. The Supreme Court granted review and transferred with directions to vacate the decision and reconsider in light of one page of a 2005 Supreme Court opinion and several sections of the Insurance Code. (See here.) This time, the Third District affirmed the finding of the company’s liability for negligence and financial elder abuse, but reversed the punitive damages and remanded for the superior court to reconsider an attorney fee award in light of the punitive damages reversal.
  • Sexual harassment. Speaking of granting-and-transferring after a full Third District opinion (see Williams, above), the Supreme Court also did that in Berkery v. Visit Elk Grove. The unpublished 20-page opinion held the plaintiff had not pleaded a cause of action under Civil Code section 51.9, that provides liability for sexual harassment in certain relationships between providers of professional services and their clients. The Supreme Court said the Third District needs to “reconsider its conclusion that plaintiff failed to plead she could not easily terminate the relationship as required by Civil Code section [51.9] in light of Paragraph 122 of the third amended complaint.”
  • Habeas merits. The court granted review in In re Grier and ordered the First District, Division Two, which had summarily denied a habeas corpus petition, to issue an order to show cause “why petitioner is not entitled to relief on the ground he received ineffective assistance of counsel at trial.” When it requested an answer to the petition for review, the Supreme Court said, “In particular, be sure to address petitioner’s contention the Court of Appeal erred in summarily denying habeas relief because it misapplied the standard for establishing a prima facie case for relief” and it cited People v. Romero (1994) 8 Cal.4th 728, 737-738, 741-742 and People v. Duvall (1995) 9 Cal.4th 464, 474-475. Romero and Duvall state that an order to show cause should generally issue if a habeas petition states a prima facie case on a claim that is not procedurally barred.
  • Recorded votes in murder cases. The court denied review in People v. Henderson and People v. Pineda over the recorded dissents of Justice Goodwin Liu. Because Justice Liu’s votes are unexplained and each case dealt with multiple issues, it’s difficult to determine what issue or issues attracted his attention. The partially divided, partially published Third District opinion in Henderson upheld a murder conviction, addressing nine separate issues. The published portion of the opinion concerned the dismissal for cause of two Black prospective jurors. The partial dissent concerned the majority’s rejection of an ineffective assistance of counsel claim. The partially published opinion of the Second District, Division Five, in Pineda concerned a transfer from juvenile to criminal court and the refusal to strike a sentence enhancement.
  • Covid insurance. The court denied review and depublication in Musso & Frank Grill Co. v. Mitsui Sumitomo Insurance USA. The Second District, Division One, opinion held that government orders to close the plaintiff’s restaurant due to the Covid pandemic did not allow for the recovery of insurance benefits under a business interruption policy.
  • Speedy trials and the pandemic. The court denied review in Elias v. Superior Court, where the Fourth District, Division One, published opinion rejected a claim that the defendant’s speedy trial rights were violated by multiple trial continuances because of the Covid pandemic. Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, probably because they are, respectively, the chair and a member of the Judicial Council, which issued pertinent jury-trial-suspension orders during the pandemic.
  • Criminal case grant-and-holds. There were 7 criminal case grant-and-holds: four more waiting for a decision in People v. Tran, which was argued in May (see also here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; one more waiting for People v. Curiel (see here); and one holding for People v. Lynch (see above).
  • Disposal of grant-and-holds. The court got rid of two former grant-and-holds that were waiting for both People v. Padilla (2022) 13 Cal.5th 152, which was decided in May, and People v. Federico, which the court transferred back to the Court of Appeal in February. Review in one grant-and-hold was dismissed with the vote of only four justices — Chief Justice Cantil-Sakauye, and Justices Corrigan, Leondra Kruger, and Martin Jenkins. The other was sent back to the Court of Appeal for reconsideration in light of Padilla, with Justice Corrigan not voting for that disposition.

Supreme Court will decide government immunity issue

At the Supreme Court’s conference yesterday, after which Chief Justice Tani Cantil-Sakauye announced her retirement, actions of note included:

  • Government immunity. The court granted review in County of Santa Clara v. Superior Court and limited the issue to: “Is Santa Clara County immune under the Government Claims Act (Gov. Code, § 810 et seq.) from an action seeking reimbursement for emergency medical care provided to persons covered by the county’s health care service plan?” In a published opinion, the Sixth District Court of Appeal held a hospital that provided emergency care to patients enrolled in a county-operated health plan could not sue the county for reimbursement for the services even though a provision of California’s Knox-Keene Health Care Service Plan Act states, “A health care service plan . . . shall reimburse providers for emergency services and care provided to its enrollees.” The appellate court concluded that, because common law claims cannot be brought against public entities, the county could not be sued for breach of an implied-in-fact or implied-in-law contract. The opinion acknowledged, “under our interpretation of the relevant statutes a provider has greater remedies against a private health care service plan than it does against a public entity health care service plan.” Horvitz & Levy filed the successful petition for review.
  • Dependency mootness. The court granted-and-held in In re Z.T., which is now another case waiting for the court’s decision in In re D.P.  Review was granted in D.P. in in May 2021 and the issues were limited to:  “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding?  (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?” In Z.T., the First District, Division Three, unpublished opinion dismissed as moot a father’s appeal because “[t]he juvenile court has vacated the dependency proceedings with respect to Father’s children and dismissed their dependency petitions,” and it said, “Father’s concern that future dependency or family law proceedings will be ‘infected’ if findings are not reversed is speculative.”
  • Forum selection clause. The court granted review in Cynosure, LLC v. Superior Court and transferred the case back to the Fourth District, Division Three, which had summarily denied a writ petition by a divided vote. Division Three will now address in a written opinion the merits of the writ petition. A plastic surgery group filed a cross-complaint against the petitioner alleging causes of action arising from the purchase of a product the petitioner manufactured. The petitioner, a Massachusetts company, unsuccessfully moved to dismiss the cross-complaint based on a clause in the product’s sales agreement that said the buyer “agrees to submit all disputes arising out of, or relating to, this Agreement to a court in Boston.” The plastic surgeons have argued “the parties merely agreed that Boston courts are an alternative forum for litigation.” Here are the petition for review, answer, and reply.
  • Inevitable discovery. The court denied review in In re A.L., but Justice Goodwin Liu recorded a vote to hear the case. A divided Third District unpublished opinion affirmed juvenile court orders denying a suppression motion and finding a minor to be a ward of the court. The majority concluded the seized evidence “would have inevitably been discovered.” The dissent, however, asserted the record did not support the inevitable discovery doctrine “where the application of that doctrine was not raised, much less adequately fleshed out, below” and because “the record is, at best, ambiguous as to the doctrine’s application to the facts of this particular case.”
  • Insurance coverage. Justice Liu also recorded a dissenting vote from the denial of review in Ghukasian v. Aegis Security Insurance Company, where a published opinion of the Second District, Division Four, held an insurance carrier had no duty to defend a lawsuit against a homeowner for grading land and cutting trees on a neighbor’s property, because the conduct was intentional even if the homeowner acted on the good faith belief that the work was being done on her own property. The homeowner acknowledged other Court of Appeal cases were adverse to her position, but claimed the Supreme Court had disapproved those opinions in Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co. (2018) 5 Cal.5th 216 (see here). Division Four rejected the argument. Justice Liu had separately concurred in the Liberty Surplus case “to clarify three aspects of the understanding of an ‘accident.’ ”
  • Slip and fall. The court denied review in Hassaine v. Club Demonstration Services, Inc., but Justice Joshua Groban recorded a vote to grant. The partially published opinion of the Fourth District, Division One, reversed the summary judgment for a company operating food sample tables at a Costco. A Costco shopper fell after slipping on liquid soap on the floor, but the superior court concluded the company could not be liable because the company’s contract with Costco limited its maintenance obligations to a specified area around each sample table and the shopper fell outside that area. Division One held the contract “may allocate responsibility and liability as a matter of contract between those parties, [but] it does not limit the scope of [the company’s] common law duty to customers.” The opinion noted a separate question is whether the company breached its duty and said the company “would have no liability so long as its conduct was reasonable under the circumstances.”
  • Habeas dissenting vote. The court denied a pro per’s habeas corpus petition in In re Villegas, but Justice Liu recorded a vote to issue an order to show cause. The docket gives no information about the issues raised by the petition, so we can’t tell the reason for the dissenting vote.
  • Criminal case grant-and-holds. There were 4 criminal case grant-and-holds: two more waiting for a decision in People v. Strong (see here), which was argued in May; one holding for In re Lopez (see here and here); and one more waiting for People v. Tran, which was argued in May (see also here).
  • Disposal of grant-and-holds. The court shed eight former grant-and-holds. Six had been holding for the March decision in Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905: review was dismissed in four of them — Poblete v. Specialized Loan Servicing (see here), Beier v. Bank of America (see here), Sheen v. FCI Lender Services, Inc. (see here), and Bank of America v. Phillips (see here) — and the other two — Domondon v. Three Olives Inc. (see here) and Weimer v. Nationstar Mortgage, LLC (see here) — were sent back to the Courts of Appeal for reconsideration. Also, review was dismissed in two cases that were holding for both People v. Padilla (2022) 13 Cal.5th 152, which was decided in May, and People v. Federico, which the court transferred back to the Court of Appeal in February.

Supreme Court will decide PAGA arbitration issues in case against Uber [Updated]

At the Supreme Court’s conference yesterday, actions of note included:

  • Supreme Court leaves open possible further discovery of racial discrimination in State Bar disciplinary practices.
  • PAGA arbitration. The court granted review in Adolph v. Uber Technologies, Inc. The Fourth District, Division Three, Court of Appeal unpublished opinion affirmed the denial of a petition to compel arbitration in a representative action under California’s Labor Code Private Attorneys General Act that claims Uber misclassified employees as independent contractors. (Related: here and here.) The appellate court found to be unenforceable a waiver of representative claims and also concluded that a court, not an arbitrator, is to decide whether the plaintiff is an employee who has standing to bring a PAGA action or an independent contractor who does not. The opinion was filed before the U.S. Supreme Court’s decision last month in Viking River Cruises, Inc. v. Moriana. (See here.) Adolph is the second PAGA case the California Supreme Court has agreed to hear since Viking. (See here.) [August 1 update: the court today limited the issue to: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” The court also denied the plaintiff’s application for calendar preference and an expedited briefing schedule.]
  • Habeas dissenting vote. The court denied a pro per’s habeas corpus petition in Harris v. California Department of Corrections and Rehabilitation, but Justice Liu recorded a vote to issue an order to show cause. The docket gives no information about the issues raised by the petition, so we can’t tell the reason for the dissenting vote.
  • Criminal case grant-and-holds. There were 6 criminal case grant-and-holds: four more waiting for a decision in People v. Strong (see here), which was argued in May; one holding for In re Lopez (see here and here); and one more holding for In re Vaquera (see here), which has been fully briefed for over two years.
  • Disposal of grant-and-holds. The court got rid of nine former grant-and-holds, dismissing review in all of them instead of sending any back for reconsideration. Two cases — Melendez v. Westlake Services, LLC (see here) and Hernandez Flores v. Westlake Services, LLC (see here) — were holding for the court’s May decision in Pulliam v. HNL Automotive (2022) 13 Cal.5th 127. Conservatorship of J.Y. (see here) was holding for the April opinion in Conservatorship of Eric B. (2022) 12 Cal.5th 1085. Four cases were holding for both People v. Padilla (2022) 13 Cal.5th 152, which was decided in May, and People v. Federico, which the court transferred back to the Court of Appeal in February. Two cases were holding just for Padilla.

Supreme Court will hear Lemon Law case

At the Supreme Court’s conference yesterday, a double one, actions of note included:

  • Lemon Law. The court granted review in Rodriguez v. FCA US, LLC. In a published opinion, the Fourth District, Division Two, Court of Appeal held that a previously owned vehicle with some balance remaining on the manufacturer’s express warranty and sold by a retailer unaffiliated with the manufacturer is not a “new motor vehicle” under California’s Song-Beverly Consumer Warranty Act. The Act defines “new motor vehicle” as including a “motor vehicle sold with a manufacturer’s new car warranty” and provides a specified remedy for owners of certain unrepairable vehicles meeting that definition. The appellate court concluded the definition is “a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.” Division Two “agree[d] with [the] holding but not all of [the] reasoning” of the Third District’s opinion in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. The Supreme Court denied the defendant’s petition for review in Jensen. Horvitz & Levy is appellate counsel for the defendant in Rodriguez and opposed review.
  • Criminal discovery. The court depublished the San Diego Superior Court Appellate Division opinion in People v. Houser. There was no petition for review, but there were two depublication requests. The appellate court held to be improper a city attorney’s delegation to the police in infraction cases of discovery obligations under Brady v. Maryland (1963) 373 U.S. 83 and it ordered dismissed an action for overnight camping in Balboa Park. (Regarding the Supreme Court’s authority over the publication status of appellate division opinions, see here and here.)
  • Design immunity The court granted-and-held in Cooper v. County of San Diego. The case is another one waiting for a decision in Tansavatdi v. City of Rancho Palos Verdes, in which the issue was limited to:  “Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?”  (See here and here.) In Cooper, the Fourth District, Division One, unpublished opinion affirmed a county’s summary judgment motion, concluding, among other things, “under the facts of this case, design immunity precludes the failure-to-warn claim, and even if it did not, because there was no dispute that the County lacked notice of the allegedly concealed dangerous condition, the decision to grant summary judgment was proper.”
  • Mandatory counseling. The court granted a pro per’s untimely petition for review in Rhodes v. Superior Court after the Fourth District, Division One, summarily denied a writ petition. The Supreme Court directed Division One to decide the petition on its merits and included the citations, “See Fam. Code, § 3190, subds. (a) [court may order counseling ‘for not more than one year’] and (d)(2) [court shall make findings and set forth reasons that ‘the court order for counseling does not otherwise jeopardize a party’s other financial obligations’ ”]. Section 3190 allows for court ordered counseling of “parents or any other party involved in a custody or visitation dispute, and the minor child.”
  • Employee sexual abuse. The court denied a petition for review and two depublication requests in Samantha B. v. Aurora Vista Del Mar, LLC, but Justice Carol Corrigan recorded a vote to hear the case. The Second District, Division Six, opinion affirmed a multi-million dollar award to two plaintiffs who were sexually assaulted by an employee of the defendants, a psychiatric hospital and its owner. The petition for review (filed by Horvitz & Levy) raised four issues, including an employer’s vicarious liability for an employee’s sexual misconduct and whether the limit on noneconomic damages imposed by the Medical Injury Compensation Reform Act applied to the causes of action under the Elder Abuse and Dependent Adult Civil Protection Act, so it is unclear which issue or issues attracted Justice Corrigan’s dissenting vote.
  • In-person parole hearings. Over Justice Goodwin Liu’s recorded dissenting vote, the court denied review in In re Bailey, where the Third District’s published opinion held that neither statutory nor constitutional provisions require an in-person hearing for determinately sentenced nonviolent prisoners eligible for parole consideration under Proposition 57. Justice Liu recently issued a separate statement on the issue when the court denied review in a different case. (See here.)
  • ICWA compliance. Justice Joshua Groban recorded a dissent from the denial of review in In re D.M., a termination of parental rights case. A partially divided unpublished opinion of the Second District, Division One, held the child welfare agency and the juvenile court violated their statutory duties under the federal Indian Child Welfare Act to inquire whether a child is, or may be, an Indian child, but concluded the deficiencies were not prejudicial. The brief partial dissent concerned the standard under which prejudice should be evaluated.
  • Remote hearing. The court denied review in People v. Churchill, another case on the pandemic docket. In an unpublished opinion, the First District, Division Four, found to be “extremely disconcerting,” but harmless beyond a reasonable doubt, the erroneous holding of a remote probation revocation hearing without the defendant’s consent. Chief Justice Tani Cantil-Sakauye and Justice Corrigan — respectively, the chair and a member of California’s Judicial Council, which issued rules regarding remote criminal hearings during the Covid pandemic — were recused from ruling on the petition for review.
  • Habeas dissenting vote. The court denied a pro per’s habeas corpus petition in In re Fuentes, but Justice Liu recorded a vote to issue an order to show cause. The docket gives no information about the issues raised by the petition, so we can’t tell the reason for the dissenting vote.
  • Criminal case grant-and-holds. There were 15 criminal case grant-and-holds: five more waiting for a decision in People v. Strong (see here), which was argued in May; two more holding for People v. Delgadillo (see here); one more waiting for People v. Curiel (see here); one more holding for People v. Espinoza (see here); one more holding for Camacho v. Superior Court (which is technically a civil case, involving a civil commitment under the Sexually Violent Predators Act (see here)); and five waiting for People v. Tran, which was argued in May. The latter grant-and-holds are unusual because Tran is an automatic death penalty appeal and grant-and-holds have usually (always?) been waiting for decisions in review-granted cases. In Tran, the court ordered supplemental briefing on “the significance, if any, of Assembly Bill No. 333 (Stats. 2021, ch. 699), People v. Valencia (2021) 11 Cal.5th 818, and People v. Navarro (2021) 12 Cal.5th 285 to the issues presented in this case.” All five Tran grant-and-holds involve AB 333, which changed the law regarding gang enhancements.
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