Supreme Court will hear cases about request for records regarding destruction of homeless people’s property and about sentence enhancements for prior prison terms

Here are some notable Supreme Court actions at its conference yesterday:

Public records retention. The court granted review in both City of Gilroy v. Superior Court and Law Foundation of Silicon Valley v. Superior Court, consolidated the cases, and made City of Gilroy the lead case. In a published opinion resolving both writ proceedings, the Sixth District Court of Appeal ruled for a city regarding its response to requests under the California Public Records Act for disclosure of some videos, including police body-cam videos, of officers clearing homeless encampments. Among other things, the appellate court concluded that statutes other than the CPRA govern record retention and, although recognizing “public records that are potentially responsive to a public records request may be deleted while the request is pending,” the court held the CPRA neither requires the retention of potentially responsive records nor does it “impose a duty on public agencies to advise persons requesting public records of the existence of retention statutes.” Additionally, an appellate procedural issue the Supreme Court might or might not address is whether the Sixth District was correct when it modified its opinion to say “[t]he parties shall bear their own costs on appeal” [sic: these were original proceedings, not appeals] instead of awarding costs to the city as the original opinion did, and yet stated the modification effected “no change in the judgment.”

Prior prison enhancements. The court also agreed to hear People v. Rhodius, where a Fourth District, Division Two, published opinion upheld the partial denial of resentencing. Penal Code section 1172.75 invalidates many sentence enhancements for prior prison terms if the enhancements were “imposed prior to January 1, 2020.” Division Two held the statute applies only to those enhancements that were “imposed and executed,” not “imposed and stayed.” Rhodius already has its own grant-and-hold. (See below.)

Early parole. Justices Goodwin Liu and Martin Jenkins recorded dissenting votes from the denials of review in In re Hicks and In re Koenig. Published opinions by the Second District, Division Two (here) and the Third District (here), respectively, rejected claims of entitlement to early parole consideration under California Constitution article I, section 32(a)(1) (adopted by 2016’s Proposition 57), which requires parole consideration for “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison . . . after completing the full term for his or her primary offense.” Both petitions were before the Courts of Appeal after the Supreme Court issued orders to show cause. (Hickshere and here; Koenighere and here.) Both orders followed the Supreme Court’s decision in In re Mohammad (2022) 12 Cal.5th 518 (see here), which upheld regulations making early parole off limits to an inmate who is incarcerated for both nonviolent and violent felonies. In Mohammad, Justice Liu wrote a concurring opinion for himself and Justice Leondra Kruger saying there were a number of “[l]urking” questions that weren’t ripe for decision in that case. (12 Cal.5th at p. 542.)

Newspersons’ shield law. The court denied a request to depublish the partially published Fifth District opinion in The Bakersfield Californian v. Superior Court and it declined to review the case on its own motion. The appellate court upheld a murder defendant’s subpoena for a reporter’s unpublished materials from a jailhouse interview she conducted with a codefendant. This despite article I, section 2(b), of the California Constitution, which protects reporters who “refus[e] to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” (See also Evidence Code section 1070.) Quoting a Supreme Court case, the Fifth District said, “as held in Delaney v. Superior Court (1990) 50 Cal.3d 785, 793 . . . , shield law immunity ‘must yield to a criminal defendant’s constitutional right to a fair trial.’ ” The newspaper said it would seek depublication, but not review, “weighing the likelihood of the Supreme Court granting review and the costs involved, likely exceeding $100,000 after already spending roughly the same to take the case this far. Only about 3% of cases filed in the California Supreme Court are actually reviewed, and in this case, the Court of Appeal wrote a detailed, 57-page response, making it unlikely to be a case the California Supreme Court would hear.”

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  two more waiting for a decision in People v. Hardin (see here and here), which was argued over two months ago (video here); one more holding for People v. Mitchell (see here); one more waiting for People v. Emanuel (see here); another one on hold for People v. Lopez (see here); one more waiting for In re Hernandez (see here); and one holding for People v. Rhodius (see above).

“Yes” to the Ninth Circuit, but no other straight grants at the weekly conference

Here are some notable actions at yesterday’s double conference:

Supreme Court will answer Ninth Circuit’s damages-limitation question.

Reinstating a removed judge to the bar. In Laettner on Reinstatement, the court, following the State Bar’s recommendation, ended John Laettner’s suspension from practicing law. Four years ago, Laettner was removed from the bench by a Commission on Judicial Performance decision the court declined to review. (See here.) The court had refused to lift the suspension in 2022, again on the Bar’s recommendation. (See here.)

Three Strikes sentence. The court issued an order to show cause in response to the habeas corpus petition in In re Green. Cause is to be shown in the First District, Division Four, Court of Appeal, “why petitioner is not entitled to relief based on his claim that his 35 years to life sentence under California’s Three Strikes Law is disproportionate to his culpability and constitutes cruel or unusual punishment under the California Constitution, Article 17 [sic: Article I, section 17], and People v. Avila (2020) 57 Cal.App.5th 1134.” In 2022, a Division Four unpublished opinion affirmed the denial of Green’s petition for a recall of his sentence under Penal Code section 1170.91, which makes post-traumatic stress disorder and other circumstances resulting from military service mandatory mitigating factors in sentencing a criminal defendant (see here). A year ago, the appellate court summarily denied another Green habeas petition. Last month, the Supreme Court denied a habeas petition by Green — with Justice Joshua Groban dissenting — that sought clarification of the standard for determining whether someone is suitable for parole. (See here.)

More ICWA intra-division split grant-and-holds.  In re L.C. and In re S.J. are yet additional grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See herehere, here, and here.) The divided unpublished Division Two opinions in L.C. and S.J. found no extended duty of inquiry.

PAGA arbitration. Earlier this week, the Ninth Circuit decided to follow the California Supreme Court’s interpretation of California’s Private Attorneys General Act in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 rather than the U.S. Supreme Court’s in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639. (See here.) The Fourth District, Division Three, had done the same in an unpublished opinion several months earlier in the Adolph case itself, after remand from the State high court. Division Three held, “The United States Supreme Court’s contrary decision does not bind the California Supreme Court.” The California Supreme Court declined to revisit Adolph when it yesterday denied review of the latest Division Three opinion in the case.

COVID and timely civil trial. The court denied review in Oswald v. Landmark Builders, where the First District, Division Three, published opinion affirmed dismissals for failure to bring an action to trial before a statutory deadline. Although “recogniz[ing] the COVID-19 pandemic has been an extraordinary event impacting every facet of society including the legal profession and the courts,” Division Three found inapplicable a tolling provision for “the time during which bringing the action to trial was impossible, impracticable, or futile despite a plaintiff’s reasonable diligence.” The plaintiffs unsuccessfully sought to exclude from the statutory time “approximately 16 months of courtroom closure (March 16, 2020 to July 1, 2021) related to the COVID-19 pandemic.” The appellate court concluded “plaintiffs’ failure to timely commence trial was due to a lack of reasonable diligence, i.e., they were never ready for trial during the relevant periods,” noting the trial court’s finding that ‘pretrial discovery was available through ‘virtual platforms such as Blue Jeans and Zoom, and emergency rules allowing remote depositions.’ ” The court said, “We will not accept plaintiffs’ repeated invitation to adopt the absurd rule that time to commence trial is tolled under section 583.340(c) whenever a courtroom is not available for trial without consideration of a plaintiff’s readiness for trial.”

Criminal case grant-and-holds. There were six criminal case grant-and-holds:  one more waiting for a decision in People v. Hardin (see here and here), which was argued two months ago (video here); four more holding for People v. Walker (see here); and one more waiting for People v. Emanuel (see here).

Grant-and-hold disposals. The court returned three cases to the Courts of Appeal for reconsideration in light of the decisions they were on hold for. In re Kieran S. was a grant-and-hold for In re N.R. (2023) 15 Cal.5th 520 (see here). Two related cases were waiting for Rodriguez v. Superior Court (2023) 15 Cal.5th 472 (see here).

Supreme Court will decide which statute of limitations applies in malicious prosecution actions against attorneys

At Wednesday’s Supreme Court’s conference, there was a straight grant, the first since December 20. Here’s information about that and some other actions of note:

Three dissents from — and a separate statement about — the denial of a pro per’s habeas corpus petition.

Statute of limitations. The court granted a pro per’s petition for review in Escamilla v. Vannucci to decide which statute of limitations applies in a malicious prosecution action against an attorney who sued the plaintiff, the one-year period of Code of Civil Procedure section 340.6 (governing “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services”) or the two-year period of section 335.1 (governing “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another”). In a belatedly published opinion (Horvitz & Levy filed the publication request), the First District, Division One, Court of Appeal held section 340.6 “applies to malicious prosecution claims against attorneys who performed professional services in the underlying litigation.” Rejecting the argument that section 340.6 is limited to actions brought by a party suing their own attorney, Division One followed the First District, Division Five, decision in Connelly v. Bornstein (2019) 33 Cal.App.5th 783 and the Fifth District’s opinion in Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050. On the other hand, the Second District, Division Three, in Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, disapproved on another ground in Lee v. Hanley (2015) 61 Cal.4th 1225, held section 335.1 provided the applicable limitations period. There was no petition for review in Connelly, Garcia, or Roger Cleveland. There was a depublication request in Roger Cleveland that was denied.

Implied malice murder. Over the dissenting recorded votes of Justices Goodwin Liu and Joshua Groban, the court denied review in People v. Superior Court (Rawlins). The Third District unpublished opinion in the case held the superior court had erroneously dismissed a murder charge after a preliminary hearing. The defendant — a convenience store worker — and the victim — a customer — had an altercation during which the defendant pushed and punched the victim, who fell and hit his head. The appellate court recognized an “exceedingly low standard required at the preliminary hearing,” and concluded that, “[b]ecause there is some rational ground for assuming the possibility that implied malice murder has been committed and the accused is guilty of it, the charge must be reinstated.”

Resentencing after a plea agreement. The court denied a request to depublish the First District, Division One, opinion in People v. Coddington. There was no petition for review, but Justice Kelli Evans recorded a vote to hear the case on the court’s own motion. Division One held the defendant was entitled to another resentencing hearing, but, interpreting People v. Stamps (2020) 9 Cal.5th 685 (see here), the appellate court also said if the superior court indicates at the hearing that it will order a sentence reduction, the prosecution has the right to withdraw from the agreement under which the defendant was sentenced.

COVID speedy trial claim. The court denied review of the First District, Division Three, unpublished opinion in People v. Marman. Division Three rejected a claim that the defendant’s speedy-trial right was violated by an 11-month delay during the COVID pandemic. It said the “delay was ‘ “presumptively prejudicial,” ’ ” but “join[ed] other courts in concluding 2020 and 2021 delays were due to the COVID-19 pandemic,” eight months of the delay having “stemmed directly from the COVID-19 shutdown and preceded the trial court’s reopening” and the other three months having “stemmed from the backlog COVID-19 created in the trial court.” A separately concurring justice wrote that she “remain[s] concerned about the pace at which the San Francisco Superior Court acted to clear the backlog of criminal cases after it ‘return[ed] to “pre-pandemic” levels of service’ at the end of June 2021.” Chief Justice Patricia Guerrero and Justice Carol Corrigan were recused, probably because they are, respectively, the chair and a member of the Judicial Council, which issued jury-trial-suspension orders during the pandemic. In Raju v. Superior Court, the court will decide whether taxpayers have standing to sue a superior court for improper pandemic-related delays in bringing criminal cases to trial. (See here.)

Review dismissed in forum selection case. The court dismissed review in Gerro v. BlockFi Lending LLC. When review was granted in September 2022, the court limited the issue to: “Did the Court of Appeal correctly hold that this action must remain in California despite the contractual forum selection clause?” One defendant in the litigation — which involves a loan collateralized by bitcoin — filed for bankruptcy a few months later and the court stayed the case. Last May, the court dismissed review as to another defendant, which had settled with the plaintiff. A month ago, the court said it was construing the bankrupt defendant’s quarterly bankruptcy status report “as a motion to dismiss review and remand this matter with instructions that it be dismissed with prejudice.” Review was dismissed after a response by the plaintiff. There are two other forum-selection cases remaining on the court’s docket — EpicentRx, Inc. v. Superior Court (see here) and Zhang v. Superior Court (see here).

Kill zone. Acting on a pro per’s habeas corpus petition in In re Jimenez, the court issued an order to show cause, returnable in the Court of Appeal, “why relief should not be granted on the ground that instructing petitioner’s jury on the kill zone theory, in violation of People v. Canizales (2019) 7 Cal.5th 591 [see here and here], was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18.”

Criminal case grant-and-holds. There were three criminal case grant-and-holds:  one more waiting for a decision in In re Vaquera (see here and here), which was argued in November and which will be decided this Monday; one more on hold for People v. McCune (see here); and one more holding for In re Hernandez (see here).

Four conferences with no straight grants

Maybe the Courts of Appeal are doing a great job of clarifying the law because the Supreme Court yesterday had its fourth conference in a row without a straight grant. There hasn’t been a straight grant since the two on December 20. Notable actions yesterday included:

Discriminatory jury selection. Over the dissenting recorded votes of Justices Goodwin Liu and Kelli Evans, the court denied review in People v. Ortiz. The Sixth District Court of Appeal’s published opinion in the case resolved several issues and Justices Liu and Evans didn’t explain why they wanted to hear the case, so the reason for their dissenting votes is not entirely clear (see here). However, it’s likely they were interested in the Sixth District’s rejecting a discrimination-in-jury-selection claim under 2020’s Assembly Bill 3070 (adding Code of Civil Procedure section 231.7), a statute the appellate court analyzed in detail. In a dissent two years ago, Justice Liu cited AB 3070 when stating, “The incongruity between our Batson jurisprudence and what is widely known about racial inequality in our justice system has spurred legislative reform.” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 844; see here.) (Related: “Justice Goodwin Liu Shared Views on Jury Selection With Lawmakers Weighing Bill”.)

Parole criteria. The court denied the habeas corpus petition in In re Green, but Justice Joshua Groban recorded a vote to issue an order to show cause. The petition, filed by Stanford Law School’s Three Strikes Project, stated the issue was, “What is the standard to be applied by the Board of Parole Hearings . . . in determining whether a person is suitable for parole?” It claimed that the lack of clear law has resulted in “arbitrary outcomes, conflicting rulings among lower courts, and a vague standard that violates Due Process.” The petition was filed on behalf of Cedric Green, who, the petition states, “is serving an indeterminate life sentence imposed under the Three Strikes law for a purse-snatch robbery he committed in 1997.” The Attorney General’s informal response, which the court requested, said that the petition “erroneously contends there is confusion in the appellate courts concerning the Board’s longstanding public-safety inquiry when determining parole suitability.” Green filed an informal traverse.

COVID remote jury deliberations. The court denied review in People v. Hampton, where the First District, Division One, in a published opinion, rejected the claim that a juror — who had tested positive for COVID — participating remotely in the last day of deliberations was unauthorized and unconstitutional. Division One held “any error in permitting the jury to deliberate remotely for one day was harmless because, as the record establishes, that day of deliberation did not result in a finding of guilt.” (On that last day, the jury discussed only an enhancement issue, on which it ended up hung.)

Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more waiting for a decision in In re Vaquera (see here and here), which was argued in November; two more holding for People v. Lynch (see here); and one more on hold for People v. McCune (see here).

Salazar disposition. The court granted-and-transferred in one case, directing the Court of Appeal to reconsider its decision in light of the November decision in People v. Salazar (2023) 15 Cal.4th 416.

Another no-straight-grant conference

Today’s Supreme Court conference was the third in a row with no straight grants. But there were some actions of note, including:

No arbitrations. The court denied review of two Court of Appeal opinions that affirmed denials of motions to compel arbitration.

In In re Uber Technologies Wage and Hour Cases, the First District, Division Four, Court of Appeal held in a published opinion that the defendants couldn’t force arbitration of civil claims by the People of the State of California and by the state’s Labor Commissioner “because the People and the Labor Commissioner are not parties to the arbitration agreements [the defendants] invoked.” The claims were that the defendants had misclassified rideshare and delivery drivers as independent contractors rather than employees. Justice Kelli Evans was recused.

In Kermani v. Hyundai Motor America, the Second District, Division Four, unpublished opinion concluded a putative class action against an auto maker alleging vehicle defects shouldn’t go to arbitration because the arbitration provision was in contracts between only the buyers and the car dealers who sold the car, not the auto maker. The Supreme Court denial came despite the court having previously granted review to decide the same issue in Ford Motor Warranty Cases (see here) and already having several Ford Motor Warranty grant-and-holds (see here, here, here, and here). Horvitz & Levy filed the petition for review.

Criminal case grant-and-holds. There were six criminal case grant-and-holds:  one more waiting for a decision in People v. Lynch (see here); one more holding for People v. Mitchell (see here); one more on hold for People v. Hardin (see here and here), which was argued last month; one more waiting for People v. Walker (see here); and two more waiting for People v. Emanuel (see here).

A double conference with no straight grants, but some significant denials [Two updates]

At the Supreme Court’s conference yesterday, a double one, there were no straight grants (the second conference in a row without one), but there were some petition denials of note and a handful of grant-and-holds:

Supreme Court disbars attorney who claimed racial discrimination in State Bar discipline.

Decide the constitutionality of the Racial Justice Act? Not yet. The majority in the Second District, Division Six, Court of Appeal’s 2-1 published opinion in People v. Simmons upheld the constitutionality of the Racial Justice Act, but said, “We are hopeful, indeed confident, that our Supreme Court will resolve this issue . . . soon.” Not in this case. The Attorney General conceded error and didn’t petition for review. The dissent specifically urged the Supreme Court to grant review on its own motion (see rule 8.512(c)(1)), as did the California District Attorneys Association, but the court declined. The disputed issue concerns the RJA statement that “racism in any form or amount, at any stage of a criminal trial, is intolerable, inimical to a fair criminal justice system, is a miscarriage of justice under Article VI of the California Constitution, and violates the laws and Constitution of the State of California.” (Emphasis added.) Article VI, section 13, provides, “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Emphases added.) The majority recognized that “[t]he statute forecloses any traditional case-specific harmless error analysis,” but concluded that “section 13 does not prohibit the Legislature from making this presumptively constitutional determination” because “the state constitution does not limit the Legislature’s power to define a miscarriage of justice.” The dissent, on the other hand, argued that “the majority’s deferral to the Legislature violates the California Constitution’s separation of powers clause” because “the Legislature usurped the judiciary’s authority to determine what constitutes ‘a miscarriage of justice’ within the meaning of Article VI.” The Supreme Court has previously granted-and-transferred in a couple of RJA cases. (See here and here.)

Facebook discrimination case can continue. The court denied review and a depublication request in Liapes v. Facebook after a First District, Division Three, published opinion reversed the dismissal on demurrer of a complaint alleging — according to the decision — that Facebook “does not provide women and older people equal access to insurance ads on its online platform in violation of the Unruh Civil Rights Act and Civil Code section 51.5.” Division Three held the plaintiff “alleged intentional discrimination, not disparate impact as Facebook asserts.” It also concluded that Facebook is not immune under section 230 of the federal Communications Decency Act of 1996 because Facebook is “more akin to a content developer” than simply the publisher of information provided by another. The Supreme Court was uncharacteristically divided when it addressed the federal legislation over five years ago in Hassell v. Bird (2018) 5 Cal.5th 522. (See here.)

[January 12 update: Horvitz & Levy submitted an amicus letter supporting the petition for review. The letter, on behalf of Santa Clara law school Professor and Associate Dean Eric Goldman, argued that the appellate opinion “creates uncertainty and conflict regarding the scope of immunity under title 47 United States Code section 230 (section 230) for the widespread practice by interactive computer services of using algorithmic sorting to deliver content or advertisements to specific audiences.”]

School COVID policies. The court also declined to hear Shaw v. Los Angeles Unified School District. The Second District, Division Four, in a published opinion, revived a lawsuit alleging — according to the decision — that the defendant school district “adopted distance-learning policies that discriminated against poor students and students of color—and deprived all students of basic statewide educational equality—in violation of the California Constitution.” The trial court had dismissed the case on mootness grounds because distance learning had ended, but Division Four concluded, “Because the plaintiffs propose a seemingly viable remedy for the past and continuing harms they allege, their constitutional claims are not moot.” Among other things, the appellate court said, “it appears to be within the realm of probability that the trial court—with the assistance of the parties—could fashion appropriate injunctive relief consisting of workable programs and techniques for evaluating and remediating any learning deficits occasioned by the District’s distance learning program.” Additionally, that court brushed aside a divided First District, Division Three, opinion (Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896), authored by then-Court of Appeal Justice (now-Supreme Court Justice) Martin Jenkins, which stated that the state constitution “leave[s] the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch.” (Id. at p. 903.) Division Four said “no other appellate court has examined the issue in detail, and Quality Education is not binding on us.” The Supreme Court barely denied review in Quality Education; three justices (Justices Ming Chin, Goodwin Liu, and Mariano-Florentino Cuéllar) voted to grant and Justices Liu and Cuéllar wrote separate statements explaining why the court should have heard the case. (See here.)

[January 12 update:

More issues in criminal appellate procedure case. In People v. Superior Court (Mitchell) (review granted in November (see here)), the court denied a motion by the People to dismiss review and it ordered the parties to brief, in addition to the issues already limited by its order granting review, “(1) In the absence of further order or other direction, when does a Court of Appeal’s temporary stay of superior court criminal proceedings against a defendant expire? (2) If the temporary stay issued by the Court of Appeal had not expired at the time of defendant’s guilty plea, what was the effect, if any, of the stay on the resolution of defendant’s criminal proceedings?”]

Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more waiting for a decision in People v. Lynch (see here); one more holding for People v. Mitchell (see here); two more on hold for People v. Hardin (see here and here), which was argued last month; two more waiting for People v. Walker (see here); one more on hold for People v. Fletcher (see here); and one holding for In re Hernandez (see here).

Holiday-lite conference

There’s not much to write about regarding today’s Supreme Court conference, the last one of the year. A couple of weeks ago, the court ruled on 164 matters; today, just 53 rulings, seven less than last year’s final conference. There were no straight grants or much of anything else of note, other than:

COVID criminal trial. The court declined to review People v. Molina. A Fourth District, Division Three, Court of Appeal published opinion affirmed various convictions for the defendant’s molestation of his girlfriend’s six-year-old daughter. The trial began in June 2021, “well into the COVID-19 pandemic,” and the superior court followed several safety protocols. Division Three rejected the defendant’s claims that his trial wasn’t fair because of masking and social distancing requirements, particularly jurors being masked during voir dire, allowing some jurors to continue to wear face masks and sit outside the jury box during trial even after masking requirements were lifted, and requiring defendant to wear a face mask on the first morning of trial. Agreeing with state and federal decisions, the appellate court concluded that any limited detriment from the masking requirements “was justified by the state’s compelling need to protect the health and safety of courtroom participants from a highly contagious and potentially deadly virus.”

Criminal case grant-and-hold. There was only one criminal case grant-and-hold. It’s another one waiting for a decision in People v. Lynch (see here).

Supreme Court grants review for a third time in sentencing/immigration consequences case; also will hear workers’ comp exclusivity matter

Here are some of the actions of note at yesterday’s Supreme Court conference:

Third review grant. The court granted review in In re Hernandez after a 2-1 Fifth District Court of Appeal unpublished opinion affirmed the denial of an application to vacate a conviction due to inadequate advice about the immigration consequences of pleading guilty or nolo contendere to sale or transportation of marijuana and possession of marijuana for sale. The majority found “the immigration consequences were clear, and the advisement given to appellant was equally clear,” while the dissent said “the language in the plea form indicating appellant ‘will’ be deported is confusing and ambiguous” because it was “followed by the sentence explaining that ‘some’ offenses require mandatory deportation.” This is the third time the Supreme Court has granted review in the case after a Fifth District affirmance. In 2020, the court granted and held pending the decision in People v. Vivar (2021) 11 Cal.5th 510 (see here) and it then remanded for reconsideration in light of that opinion. After the appellate court’s second opinion, the Supreme Court again granted and held, this time waiting for the decision in People v. Espinoza (2023) 14 Cal.5th 311 (see here) and it ordered reconsideration in light of Espinoza. Now, after a third Fifth District opinion and out of grant-and-hold options, the Supreme Court has taken the case as a straight grant.

Workers compensation exclusivity. The court also agreed to hear Ranger v. Alamitos Bay Yacht Club to resolve a conflict in decisions. The Second District, Division Eight, published opinion held an injured yacht club’s maintenance worker could not sue his employer under federal maritime law because Congress in the Longshoremen’s and Harbor Workers’ Compensation Act has relegated club employees to state workers’ compensation remedies, which preclude tort lawsuits. Division Eight said it “respectfully but profoundly differ[ed] with” the federal Fifth Circuit decision in Green v. Vermilion Corp. (5th Cir. 1998) 144 F.3d 332 and with the First District, Division Three, opinion in Freeze v. Lost Isle Partners (2002) 96 Cal.App.4th 45, which Division Eight found “relied on Green without adding to its analysis.” The appellate court concluded that “Green’s approach clashes with our deep national strain of federalism that celebrates states as laboratories of experimentation.” The U.S. Supreme Court denied certiorari in Green ((1999) 526 U.S. 1017) and the California Supreme Court denied review in Freeze.

COVID insurance grant-and-hold. JRK Property Holdings v. Colony Insurance Company is another grant-and-hold for Another Planet Entertainment v. Vigilant Insurance Co. (see here), where the court has agreed to answer this question posed by the Ninth Circuit: “Can the actual or potential presence of the COVID-19 virus on an insured’s premises constitute ‘direct physical loss or damage to property’ for purposes of coverage under a commercial property insurance policy?” The Second District, Division Seven’s partially published opinion in JRK answered the question “yes.” The appellate court also rejected an argument that a pollution exclusion bars coverage, but it went on to find that a pathogen exclusion does get two of the defendant insurers off the hook. Besides Another Planet, the Supreme Court has agreed to decide another COVID insurance case — John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. — and has granted-and-held others. (See hereherehere, here, and here.) But it has also denied review and/or depublication in cases that rejected COVID insurance claims. (See here.)

Dissenting vote. The court denied review in People v. Alejandro, but Justice Joshua Groban recorded a vote to grant. The reason for the dissent is not clear because the Fourth District, Division Three, unpublished opinion addressed three issues and Justice Groban didn’t say which issue or issues were of interest to him. (See here.) Division Three held (1) a warrantless home arrest of the defendant suspected of driving under the influence was justified by the exigent circumstances of “the dissipation of blood alcohol evidence” while a warrant was obtained, (2) the defendant’s hit-and-run conviction was valid despite his contention there was insufficient evidence he had actual or constructive knowledge the accident had caused injury, and (3) the superior court had not conducted an adequate Pitchess review of the arresting officers’ personnel files.

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  one more waiting for a decision in People v. Lynch (see here); one more on hold for Lynch and the finality of last month’s opinion in People v. Salazar; one more holding for People v. Mitchell (see here); one more waiting for a decision in People v. Hardin (see here and here), which was argued two weeks ago; one on hold for People v. Arellano (see here) and for People v. Lopez (see here); and two more waiting for People v. Fletcher (see here).

Supreme Court will hear forum selection and workers’ comp cases, but it turns down two animal rights matters; also, there’s one separate statement

At its conference yesterday, a double one, the Supreme Court ruled on a robust 164 matters. Actions of note included:

Forum selection. The court granted review in EpicentRx, Inc. v. Superior Court, a shareholder lawsuit, after the Fourth District, Division One, Court of Appeal, in a published opinion, refused to enforce Delaware forum selection provisions in the defendant company’s certificate of incorporation and bylaws. Division One held “enforcement of the forum selection clauses . . . would operate as an implied waiver of [the plaintiff’s] right to a jury trial—a constitutionally-protected right that cannot be waived by contract prior to the commencement of a dispute.” The Supreme Court has a similar forum selection case under review — Gerro v. BlockFi Lending LLC — but it’s on hold under a bankruptcy stay. (See here.) EpicentRx already has its own grant-and-hold. (See below.)

Workers’ compensation. Granting a two-day-late petition for review (related: Getting relief for a late petition for review might not be a hopeless cause; and see herehere, and here), the court also agreed to hear California Department of Corrections and Rehabilitation v. Workers’ Compensation Appeals Board. The Fourth District, Division Two, published opinion held the statutory workers’ compensation “compensation” that is increased when an injury is caused by an employer’s serious and willful misconduct “does not include industrial disability leave,” which “is available to certain state officers and employees.” The case concerns a correctional officer who was attacked by inmates. Division Two says its decision is in tension with the Fifth District opinion in Brooks v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522. The Supreme Court denied review in Brooks.

Animal rights. The court denied a habeas corpus petition in In re Nonhuman Rights Project, Inc., which sought relief for three elephants that are allegedly “unlawfully imprisoned at the Fresno Chaffee Zoo.” The petition asked for “recognition of the elephants’ common law right to bodily liberty protected by habeas corpus.” But animals fared better in the Second District, Division Five, published opinion in Santa Paula Animal Rescue Center v. County of Los Angeles, which the Supreme Court also declined to hear. Division Five held that Los Angeles County cannot withhold a dog from a qualified animal adoption or rescue organization and euthanize the dog “based upon its determination that the animal has a behavioral problem or is not adoptable or treatable.” The appellate court also found, however, that “the County has discretion to determine whether and how a nonprofit organization qualifies as an animal adoption or rescue organization.”

Sex offender registration separate statement. The court denied review and depublication in People v. Manzoor. Justice Joshua Groban agreed the case “is not an appropriate case in which to grant review” (see: Wait for it: issue percolation, right vehicles, and legislative inaction), but he wrote a separate concurring statement urging legislative action. The First District, Division One, published opinion concluded the defendant could not be relieved from a mandatory lifetime sex offender registration requirement despite his felony conviction for attempting to distribute harmful material to a minor having been reduced to a misdemeanor. Had the defendant’s conviction been of a misdemeanor instead of later reduced to a misdemeanor, lifetime registration would have been discretionary instead of mandatory. Justice Groban wrote, “I . . . encourage the Legislature to consider whether an individual in defendant’s position should at least have an opportunity to seek relief from lifetime registration as a sex offender.”

COVID insurance grant-and-holdEndeavor Operating Company v. HDI Global Insurance Company is another grant-and-hold for Another Planet Entertainment v. Vigilant Insurance Co. (see here), where the court has agreed to answer this question posed by the Ninth Circuit: “Can the actual or potential presence of the COVID-19 virus on an insured’s premises constitute ‘direct physical loss or damage to property’ for purposes of coverage under a commercial property insurance policy?” In Endeavor, the Second District, Division Two, held in a published opinion that “the ephemeral existence of COVID-19 or its predecessor virus on property does not constitute ‘direct physical loss or damage to property’ as a matter of law.” The Supreme Court has agreed to decide another COVID insurance case — John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. — and has granted-and-held others. (See hereherehere, and here.) But it has also denied review and/or depublication in cases that rejected COVID insurance claims. (See here.)

Government employment grant-and-hold. Krug v. Board of Trustees of the California State University is a grant-and-hold for Stone v. Alameda Health System (see here), which is expected to address the applicability to public entities of various statutory employment requirements. In Krug, the Second District, Division One, published opinion held Labor Code section 2802, requiring employer reimbursement of certain job-related expenses incurred by employees, doesn’t apply to the California State University because the statute “would impair the entity’s sovereignty” by “infring[ing] on the broad discretion CSU enjoys under the Education Code to set its own equipment reimbursement policies.”

Forum selection grant-and-hold. Lockton Companies v. Superior Court is a grant-and-hold for EpicentRx, Inc. v. Superior Court (see above). The Second District, Division Two, summarily denied the writ petition in the case.

COVID vaccination requirement. The court denied review in Rossi v. Sequoia Union Elementary School, where the Fifth District’s published opinion upheld the firing of an instructional aide because, during the pandemic, she disobeyed an order of State Public Health Officer requiring school workers to provide verification of their COVID-19 vaccination status or to undergo weekly testing.

Criminal case grant-and-holds. There were nine criminal case grant-and-holds:  one more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here); two more waiting for the finality of last month’s opinion in People v. Salazar; one on hold for both Salazar‘s finality and for a decision in People v. Lynch (see here); two more waiting for People v. Hardin (see here and here), which was argued last week; one holding for People v. Patton (see here); and two more waiting for People v. Emanuel (see here).

Supreme Court to hear challenge to anti-tax initiative, and it will resolve yet another intra-division split, this one about bail forfeiture

Notable Supreme Court actions at its conference yesterday included:

  • Supreme Court might order anti-tax initiative off the ballot.
  • Intra-division split on bail forfeiture. The court granted review in People v. North River Insurance Company, where the Second District, Division Eight, Court of Appeal’s published opinion reversed a bail forfeiture order. The bail agent had detained the fugitive defendant in Mexico, but, when time arrived for the forfeiture to become final, the prosecution hadn’t decided whether to extradite the defendant. Disagreeing with a different Division Eight panel’s decision in People v. Tingcungco (2015) 237 Cal.App.4th 249 and a portion of the Fourth District, Division Three, decision in People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, Division Eight held, “The law required the [trial] court either to insist that the prosecution make an extradition decision or to grant the continuance so the prosecution had time to decide.” The Supreme Court denied review in Tingcungco. There was no petition for review in the Ranger Ins. case.
  • Still another ICWA intra-division split grant-and-hold. In re L.J. is yet another grant-and-hold for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See herehere, and here.) In L.J., a 2-1 Division Two unpublished opinion recognized the “split of authority in this court” and found “no ICWA inquiry error.” The dissent said the distinction made by the majority “does not make sense and is not what the Legislature intended.”
  • PAGA intervention grant-and-hold. Accurso v. In-N-Out Burgers is another grant-and-hold for Turrieta v. Lyft, Inc. (see here), where the court limited the issue to: “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the State?” (Horvitz & Levy is Lyft’s appellate counsel in Turrieta.) In Accurso, the First District, Division Four, published opinion vacated an intervention denial order, finding mandatory intervention was not required, but also concluding the denial of permissive intervention was an abuse of discretion and needed reevaluation by the superior court. It disagreed with the Second District, Division Four, decision in Turrieta and stood by its opinion in Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, which had also taken issue with Turrieta. There was no petition for review in Moniz.
  • Suppression motion dissenting vote. The court denied review in People v. Jones, but Justice Kelli Evans recorded a vote to grant. A 2-1 Third District unpublished opinion upheld the denial of a motion to suppress evidence the defendant claimed was obtained from his car in excess of consent he had given. The majority held “there is sufficient evidence to uphold the trial court’s determination that defendant gave [an officer] consent to search the [entire] vehicle,” where a gun was found that supported the charge of defendant being a felon in possession of a firearm. The dissent called for an independent review (which the dissent said “is not the equivalent of de novo review”) of the relevant dash cam video and, under that standard, concluded “the scope of defendant’s consent was limited to searching his backpack that was in his car to determine the amount of marijuana inside,” marijuana the defendant had told the officer about.
  • COVID delay in service of complaint. The court denied review in Navellier v. Putnam, another case on the pandemic docket. The unpublished opinion by the First District, Division Five, affirmed the dismissal of a lawsuit for failure to timely serve the complaint and summons. As summarized by Division Five, the plaintiffs claimed “the trial court erred . . . because the three-year statutory period for service was tolled when the COVID-19 pandemic made service impossible and impracticable, and when the Judicial Council of California’s . . . emergency orders and rules stayed prosecution of the action.” The appellate court concluded that, “[e]ven assuming personal service was impossible or impracticable during part of the three-year service period in this case [i.e., during the early days of the pandemic], the Navellier Plaintiffs could have used a far simpler [service] method” — service on the nonresident defendant by mail. Division Five also held the Judicial Council orders and rules didn’t apply to service of process, but “merely extended the time for filing documents with the court” and “only suspended the running of the limitations period for initiating an action.” Often when Judicial Council actions are involved, the Chief Justice and the associate justice who are members of the Council (Cal. Const. art. VI, sec. 6(a)) recuse themselves (see, e.g., here, here, here, and here), but Council members Chief Justice Patricia Guerrero and Justice Carol Corrigan were not recused.
  • False or newly discovered evidence. On the pro per habeas corpus petition in In re Ramsey, the court issued an order to show cause, returnable in the superior court, to determine “why relief should not be granted on the claim the victim’s posttrial recantation of his trial testimony establishes false evidence was presented against petitioner at trial and/or constitutes newly discovered evidence as set forth in Penal Code section 1473.” (Related: Supreme Court follows Legislature’s lead, grants habeas relief it had previously denied.)
  • Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), one more holding for the finality of last week’s opinion in People v. Salazar, one more waiting for People v. Patton (see here), and one more on hold for People v. Fletcher (see here).
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