No straight grants this week

There were no straight grants at the Supreme Court’s conference yesterday, but there were some actions of note, including:

  • Pardon greenlighted.
  • Pandemic-delayed trial. The court denied review in People v. Harrison, where the Fourth District, Division Two, Court of Appeal’s unpublished opinion, in affirming a second degree murder conviction, rejected two arguments related to a 60-day pandemic-caused interruption in the defendant’s trial. The defendant claimed that the timing and length of the delay deprived him of a fair trial and that the superior court erroneously declined to individually question the jurors before resuming the trial about possible safety concerns. The pause in the trial was required by a general jury-trial-suspending order by the Chief Justice. Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan — respectively, the chair and a member of California’s Judicial Council — were recused from ruling on the petition for review. (Related: see the write ups of Stanley v. Superior Court and People v. Breceda, here and here.)
  • Disposal of grant-and-hold. The court sent Betancourt v. OS Restaurant Services, LLC back to the Second District, Division Eight, to reconsider in light of Naranjo v. Spectrum Security Services, Inc. In Naranjo, for which Betancourt was a grant-and-hold (see here), the court last month held that the extra-hour’s pay an employer owes for improperly making an employee work during all or part of a meal or rest break constitutes statutory “wages” that must be reported on required wage statements and be paid by specified deadlines when an employee leaves the job. Violations of the wage-statement and pay-deadline mandates can trigger penalties.
  • New legislation. The court granted review in People v. Hunt and transferred the case back to the Third District to reconsider its decision in light of Senate Bill 775. That legislation has been the catalyst for numerous reconsideration orders, including in two straight-grant cases after briefing was complete. (See here.)
  • Criminal case grant-and-holds. There were 11 criminal case grant-and-holds: five more waiting for a decision in People v. Strong (see here), which was argued last month; two more holding for People v. Faial (see here); one more holding for People v. Williams (see here); one more holding for People v. Espinoza (see here); one holding for both People v. McWilliams (see here) and People v. Tacardon (see here); and one holding for Camacho v. Superior Court (which is technically a civil case, involving a civil commitment under the Sexually Violent Predators Act (see here)).

Supreme Court takes two more cases

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

  • Supreme Court will answer Ninth Circuit’s take-home Covid questions.
  • Review granted in PAGA case.
  • Bail. The court made grant-and-transfer orders in two habeas corpus matters. (See: Teeing up an unresolved bail question.) Additionally, although there was no petition for review of, or request to depublish, the Second District, Division Seven, Court of Appeal opinion in In re Brown, the Supreme Court specifically considered granting review on its own motion (see here), but decided not to. Division Seven concluded setting a defendant’s bail at $2.45 million violated the constitution as interpreted by the Supreme Court in In re Humphrey (2021) 11 Cal.5th 135 (see here). The appellate court ordered the superior court “to hold a new hearing at which it is to consider nonmonetary alternatives to money bail, determine Brown’s ability to afford the amount of money bail if it is to be set, and follow the procedures and make the findings necessary for a valid order of detention if no conditions for pretrial release will adequately protect the government’s interests in the safety of potential victims and the public generally or the integrity of the criminal proceedings.”
  • Youth offender parole. Over another Justice Goodwin Liu recorded dissenting vote, the court denied review of the Second District, Division Six, unpublished opinion in People v. Barrascout, which rejected an equal protection challenge to a statute making youth offender parole hearings unavailable for defendants sentenced to life without parole for offenses committed between the ages of 18 and 25. It’s an issue of continuing interest to Justice Liu. (See here and here.)
  • Assumption of the risk. The Supreme Court denied review in Brown v. El Dorado Union High School District, where the Third District’s published opinion affirmed summary judgment against a student who sued his school district for traumatic brain injury he suffered during a junior varsity football game. Based on a release the student and his father had signed, the Third District held “summary judgment was proper due to the Browns’ express assumption of the risks associated with [the student’s] participation in the football program.” Horvitz & Levy represented the School District on appeal, including opposing the petition for review.
  • Criminal case grant-and-holds. There were 4 criminal case grant-and-holds: one more waiting for a decision in People v. Strong (see here), which was argued last month; one more holding for People v. Prudholme (see here); one holding for People v. Reyes (see here); and one more holding for People v. Faial (see here).

Supreme Court will decide appeal timeliness issue [Updated]

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

  • Supreme Court will answer Ninth Circuit products failure-to-warn questions
  • Justice Liu separate statements on parole, sentencing rights.
  • Time to appeal. The court granted review in Meinhardt v. City of Sunnyvale and limited the issue to: “Did the Court of Appeal correctly dismiss the appeal as untimely?” Justice Patricia Guerrero is recused because she concurred in the Fourth District, Division One, Court of Appeal published opinion now under review. Division One held a notice of appeal was two days late because the time to appeal started when the superior court entered an order denying a petition for writ of administrative mandamus, not on the later filing of a judgment that restated what was in the order. The appellate court relied in part on the Supreme Court’s decision in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, which concerned appealability, not timeliness (see here). It disagreed with the Fifth District’s opinion in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 368, fn. 2, review denied. [June 17 update: Horvitz & Levy partner Mitchell Tilner and then-appellate fellow Anna Goodman wrote an article for Los Angeles Lawyer on a similar topic: ” ‘One shot’ appeals.”]
  • Housing discrimination. The court denied review in Crenshaw Subway Coalition v. City of Los Angeles, but it depublished the partially published opinion of the Second District, Division Two. A neighborhood advocacy group unsuccessfully challenged approval of a project the group said would gentrify an area and push low-income residents, who are mostly Black and Latinx, out of their homes. Relying on a 2015 U.S. Supreme Court decision, Division Two held the disparate impact claim could not be stated — “recognizing the group’s gentrification theory would obligate the City to ‘use[ ] and consider[ ]’ race in making local planning decisions, and thus the group’s gentrification theory is not cognizable under the [federal] Fair Housing Act (and, by extension, the [California] FEHA).” In dismissing the fair housing claims, the superior court had relied on the opinion in AIDS Healthcare Foundation v. City of Los Angeles, which was itself later depublished (see here).
  • Speedy trials and the pandemic. The court denied review in Hernandez-Valenzuela v. Superior Court, but Justice Goodwin Liu recorded a vote to grant. The First District, Division Three, 2-1 published opinion rejected two defendants’ claims that their statutory speedy trial rights were violated, the majority concluding, “The District Attorney adequately showed respondent court’s backlog resulting in the delay of petitioners’ trials was attributable to exceptional circumstances connected to the COVID-19 pandemic, not chronic conditions in respondent court.” The dissenter said she was “confounded by [the superior court’s] failure to try more [felony trials for in-custody defendants] after fully reopening in June 2021.” Because 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), the denial of review was by a four-justice minimum.
  • Youth offender parole. Over another Justice Liu recorded dissenting vote, the court denied review of the Sixth District’s unpublished opinion in People v. Fonseca, which rejected an equal protection challenge to a statute making youth offender parole hearings unavailable for defendants sentenced to life without parole for offenses committed between the ages of 18 and 25. It’s an issue that Justice Liu has shown a continuing interest in. (See here and here.)
  • Trial pause and the pandemic. The court denied review in People v. Breceda, where the Fourth District, Division Three, published opinion concluded the defendant’s due process rights were not violated by a 72-day pause in his murder trial, a hiatus caused by three ill jurors and then statewide and local orders suspending jury trials because of the Covid pandemic. As in Hernandez-Valenzuela (see above), the Chief Justice and Justice Corrigan were recused.
  • More masked witnesses. As it did in April (see here), the court denied review in a case where a criminal defendant unsuccessfully claimed his constitutional confrontation rights were violated by the superior court requiring witnesses to wear masks because of the Covid pandemic. This week’s case was People v. Edwards, where the Second District, Division Eight, issued a brief published opinion.
  • Criminal case grant-and-holds. There were 11 criminal case grant-and-holds: five more waiting for a decision in People v. Strong (see here), which was argued three weeks ago; two more waiting for People v. Curiel (see here); one more holding for People v. Delgadillo (see here); one more holding for People v. Espinoza (see here); one more holding for In re Vaquera (see here); and one holding for the finality of the last month’s 4-3 opinion in People v. Padilla (see here).

Supreme Court will hear arbitration agreement unconscionability case

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

  • Supreme Court will answer Ninth Circuit questions about PG&E liability for power shutoffs.
  • Clemency for two approved, including commutation of an LWOP sentence.
  • Employment arbitration. The court granted review in Ramirez v. Charter Communications, Inc., where the Second District, Division Four, Court of Appeal, in a published opinion, affirmed the denial of a motion to compel arbitration of a fired employee’s lawsuit alleging violations of California’s Fair Employment and Housing Act. The opinion found the arbitration agreement at issue to be unenforceable because it “contained a high degree of substantive unconscionability based on the restriction of the statute of limitations for FEHA claims, the provision granting an award of attorney fees for a prevailing party in compelling arbitration, the lack of mutuality, and the limitation on discovery.” In finding the attorney fee provision unconscionable, Division Four disagreed with the Division Seven opinion in Patterson v. Superior Court (2021) 70 Cal.App.5th 473, which had concluded the provision was enforceable if interpreted as incorporating the employee-favorable asymmetric fee rule for FEHA cases in general (see here). There was no petition for review in Patterson.
  • Disbarment. The court went along with the State Bar’s recommendation to disbar Tom Girardi. Besides disbarment, the court ordered Girardi to make restitution of over $2,200,000 and to pay $5,000 in sanctions to the Bar. (See Cheryl Miller in The Recorder and Craig Anderson in the Daily Journal.)
  • Sports betting initiative. The court summarily denied an original writ petition in Stone v. Weber, another attempt by card clubs to keep off the November ballot an initiative to allow limited sports betting and, among other things, to give American Indian tribes standing to seek civil penalties and injunctive relief for various gambling violations. The petition challenged a 2020 superior court order granting a pandemic-based second extension of the period to collect petition signatures to qualify the initiative. (Writ petition here; real parties in interest preliminary opposition here.) In February, the court turned down a writ petition that challenged the initiative as violating the state constitutional single-subject rule.
  • PUC cases consolidated. Two weeks ago, the court issued writs of review in California-American Water Company v. Public Utilities Commission and Golden State Water Company v. Public Utilities Commission. Yesterday, the court consolidated the cases on the PUC’s motion.
  • Criminal case grant-and-holds. There were 15 criminal case grant-and-holds: six more waiting for a decision in People v. Strong (see here), which was argued last week, two more waiting for People v. Curiel (see here), three more holding for People v. Delgadillo (see here), one holding for People v. Faial (see here), two more holding for People v. Prudholme (see here) (one was a grant on the court’s own motion after a depublication request, but no petition for review, was filed), and one more holding for In re Vaquera (see here).
  • Proposition 66 transfers. The court transferred two more capital habeas corpus petitions to the superior court under Proposition 66.  (See here and here.)

Supreme Court will hear challenges to PUC water rate decisions

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

  • Supreme Court allows Governor to commute murder sentence.
  • Water rates. The court issued writs of review in California-American Water Company v. Public Utilities Commission and Golden State Water Company v. Public Utilities Commission. Public Utilities Code section 1756, subdivision (f), provides that review of most “decisions pertaining solely to water corporations shall only be by petition for writ of review in the Supreme Court.” (See also rule 8.724.) Both petitions, which were filed seven and 12 months ago, respectively, challenge — largely on procedural grounds — two PUC decisions revoking prior authorization for some water utilities to use billing systems the petitions say are crucial both to water conservation and to the water companies’ financial stability. Those systems impose tiered rates on users according to water usage and also allow possible surcharges for unanticipated revenue shortages. The petitions, PUC answer, and a joint reply are here, here, here, and here.
  • Parole violations. The court also granted review in People v. Faial, apparently to decide just how retroactive is Assembly Bill 1950, 2020 legislation that shortened the maximum probation time for many felonies to two years. The published portion of the First District, Division Three, Court of Appeal opinion upheld the superior court’s pre-AB 1950 revocation of the defendant’s four-year probation and its consequent execution of a 12-year prison sentence, even though the defendant didn’t violate his probation until more than two years into the probationary period. Division Three concluded that AB 1950 “applies retroactively to defendants who were serving a term of probation when the legislation became effective,” but said “[t]here is no indication that Assembly Bill 1950 was intended to extinguish a defendant’s accountability for probation violations, or to otherwise invalidate revocation and termination orders predating” the legislation’s effective date. Faial seems related to People v. Prudholme, a case which the Supreme Court un-held this past December.
  • Racially discriminatory prosecution. After a divided Fourth District, Division Three, summarily denied a writ petition, the Supreme Court granted review and sent the case back for a decision on the merits in Jenkins v. Superior Court. The defendant is claiming a violation of Penal Code section 745, subdivision (a)(3), which provides relief for a defendant on proof that he or she “was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, and . . . that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.” The dissent asserted the defendant had made a prima facie case of, and was thus entitled to a hearing on, racial discrimination in charging Black defendants with felony-murder special circumstance penalty enhancements in Orange County.
  • Veteran’s resentencing. The court denied review in People v. Pixley, but Justices Goodwin Liu and Leondra Kruger recorded votes to hear the case. In a published opinion, the Fourth District, Division Two, affirmed the denial of a petition for resentencing under Penal Code section 1170.91, subdivision (b), which applies to military service members or veterans who suffer from various traumas, mental health problems, or substance abuse and who are “currently serving a sentence for a felony conviction.” The appellate court concluded the defendant’s “agreement to a negotiated sentence made him ineligible for resentencing.” Other section 1170.91 cases have drawn an extended separate statement by Justice Liu (see here) and dissenting votes for review (see here) in the past.
  • Second Amendment challenge. The court declined to hear People v. Gonzalez, where the Fourth District, Division Two, published opinion rejected a constitutional challenge to a statute criminalizing possession of a controlled substance while armed. The defendant claimed the statute violates the Second Amendment by restricting a nonviolent offender’s right to bear arms. Division Two concluded there was no violation “[b]ecause ‘there is no constitutional problem with separating guns from drugs.’ ” The defendant relied on a dissenting opinion by then-Judge, now U.S. Supreme Court Justice, Amy Coney Barrett, which Division Two distinguished.
  • New-legislation grant-and-transfer. The court granted review and transferred a case back to the Court of Appeal for reconsideration in light of Assembly Bill 333.
  • Criminal case grant-and-holds. There were five criminal case grant-and-holds, four more waiting for a decision in People v. Strong (see here), which will be argued next week, and one more waiting for People v. Curiel (see here).
  • Disposal of grant-and-holds. The court shed four former grant-and-holds from its docket. Two more cases were sent back for reconsideration in light of January’s opinion in People v. Tirado (2022) 12 Cal.5th 688, one case will be reconsidered in light of Tirado and Senate Bill 775, and one will be reconsidered in light of Tirado and last year’s decision in People v. Lemcke (2021) 11 Cal.5th 644.

Supreme Court agrees to hear three more cases

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

  • Justices OK commutation of three-strikes sentence and partially open another clemency file.
  • SVPA trial time. The court granted review — for a second time — in Camacho v. Superior Court after a Fifth District Court of Appeal unpublished opinion upheld the denial of a motion to dismiss a civil commitment petition under the Sexually Violent Predators Act. The Fifth District had previously summarily denied writ relief, but the Supreme Court granted-and-transferred last August with instructions to decide the merits. The opinion holds that not having any trial for over 15 years after the petitioner’s commitment did not violate his due process rights because “the record shows the delay was at [the petitioner’s] request or agreement.” The appellate court concluded it was not an appropriate case to apply the rule that “ ‘ “[d]elay resulting from a systemic ‘breakdown in the public defender system,’ [citation], could be charged to the State.” ’ ”
  • Gang sentencing enhancement. The court will also hear People v. Cooper, with the issue limited to: “Must any of defendant’s sentencing enhancements be vacated due to recent statutory changes requiring that the offenses necessary to establish a ‘ “pattern of criminal gang activity” . . . commonly benefited a criminal street gang, and the common benefit from the offense is more than reputational’ (Pen. Code, § 186.22, subd. (e)(1), as amended by Stats. 2021, ch. 699, § 3)?” (Link added.) In an unpublished opinion, the Second District, Division Six, applied the amendments retroactively, but held “[t]here is no reasonable doubt that the jury would have found the gang enhancement true had it been instructed with the amendments to section 186.22.”
  • Dissuading a witness. The court granted the Attorney General’s petition for review in People v. Reynoza, where the Sixth District’s published opinion reversed a conviction under Penal Code section 136.1, subdivision (b)(2), which makes illegal an attempt to prevent or dissuade a witness from “[c]ausing a complaint . . . to be sought and prosecuted, and assisting in the prosecution thereof.” (Emphasis added.) The appellate court concluded, “If the defendant knows a complaint has already been filed and does not attempt to prevent or dissuade the witness from causing any further or amended complaint to be filed, an essential element of the offense is missing.” It disagreed with the Second District, Division Four, decision in People v. Velazquez (2011) 201 Cal.App.4th 219, which the Sixth District said “misconstrued the term ‘and’ to mean ‘or’, thereby eliminating that required filing element.” The Supreme Court denied review in Velazquez.
  • (Un)candid briefing. The court denied the petition for review in People v. Williams, but depublished the Second District, Division Five, opinion. Counsel, appointed to represent a criminal defendant who appealed in pro per from the denial of a petition to modify his sentence, filed a brief stating the defendant had filed a notice of appeal from the denial as an order after judgment affecting substantial rights and reported there were no arguable issues for reversal. The brief asked the Court of Appeal to follow a procedure of informing the defendant that he may file his own brief. Division Five dismissed the appeal, but only after scolding counsel for not citing 30-year-old case authority that the superior court’s ruling was not appealable — “An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor.”
  • Trust amendment. Balistreri v. Balistreri is a grant-and-hold, with action deferred pending a decision in Haggerty v. Thornton. The court granted review in Haggerty this past December and is expected to address in that case whether a trust can be modified according to the statutory procedures for revocation of a trust (Prob. Code, § 15401) if the trust instrument itself sets forth identical procedures for modification and revocation. In Balistreri, the First District, Division Three, published opinion held a trust amendment was invalid, disagreeing with the Haggerty Court of Appeal decision and concluding, “when a trust specifies a method of amendment — regardless of whether the method of amendment is exclusive or permissive, and regardless of whether the trust provides for identical or different methods of amendment and revocation — section 15402 provides no basis for validating an amendment that was not executed in compliance with that method.”
  • Attorney fees. Another grant-and-hold is Melendez v. Westlake Services, LLC, which will now be back-burnered until the court decides Pulliam v. HNL Automotive Inc. Pulliam — argued in March (briefs here; oral argument video here) — should decide whether the word “recovery” as used in the Holder Rule (16 C.F.R. § 433.2) includes attorney fees. The Rule gives consumers relief from loans used to purchase what turn out to be defective goods, but limits consumers’ recovery. In a published opinion, the Second District, Division Eight, agreed with the Pulliam appellate court opinion and held the rule’s “limitation [on recovery] does not preclude recovery of attorney fees.”
  • Vote for LWOP review?. Over the dissenting recorded vote of Justice Goodwin Liu, the court denied the defendant’s petition for review in People v. Acuna. The defendant lost on four separate issues and Justice Liu’s vote is unexplained, so it’s unclear what issue or issues attracted his attention. As stated in the unpublished opinion of the Fourth District, Division One, the four defense arguments that failed are: “(1) the trial court prejudicially erred by refusing a proposed pinpoint instruction on the duration of the crime of burglary for the purpose of the escape rule as it relates to felony murder; (2) the trial court prejudicially erred by allowing the People to present evidence that the murder victim was a member of the United States Navy; (3) because he was a youthful offender at the time of the murder, Acuna’s constitutional right to equal protection was violated by the imposition of an LWOP sentence; (4) the order requiring Acuna to pay certain fines and fees should be vacated because he does not have the ability to pay them.” Justice Liu has shown a continuing interest in the LWOP issue. (See here.)
  • Juvenile commitment. Justice Liu also dissented from the denial of review in In re J.B., where a 2-1 Sixth District published opinion held the superior court had discretion to commit a defendant — who admitted to a second degree murder when he was a minor — to state custody by dismissing other adjudicated petitions that would have precluded commitment and required his release.
  • New-legislation grant-and-transfer. The court granted review and transferred a case back to the Court of Appeal for reconsideration in light of Senate Bill 567.
  • Criminal case grant-and-holds. There were nine criminal case grant-and-holds. All are now waiting for a decision in People v. Strong (see here), which will be argued in 12 days.

Supreme Court will hear civil jury trial waiver case

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

  • Supreme Court will answer Ninth Circuit employment discrimination question.
  • Jury trial waiver. The court granted review in TriCoast Builders, Inc. v. Fonnegra, where the Second District, Division Two, Court of Appeal, in a 2-1 published opinion, affirmed a defense judgment after the plaintiff waived a jury trial by not timely posting jury fees, after the superior court refused to grant relief from the waiver, and after the plaintiff didn’t file a writ petition to challenge the lack of a jury trial. The issue is who needs to show prejudice under such circumstances. The Division Two majority disagreed with a Division Seven decision — Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1 — and held the appellant must shoulder the heavy burden of demonstrating actual prejudice from the denial of a jury trial, while the dissent claimed it’s the respondent who has to show it would have been prejudiced from a grant of waiver relief. There was no petition for review in Mackovska.
  • Ditto. The court granted-and-held in Winick v. Noble LA Events, Inc., deferring action pending a decision in the TriCoast Builders case (see above). In Winick, the Second District, Division Seven — the Mackovska court (again, see above) — held in an unpublished opinion that the superior court didn’t abuse its discretion in denying relief from a jury trial waiver because the appellant “did not give the [respondents] an opportunity to show how a jury trial would prejudice them.”
  • Masked witnesses. In two more matters on its pandemic docket, the court denied review in People v. Lopez and People v. Alvarez. Published opinions in both of the Second District cases (decided a day apart) — Lopez from Division Eight and Alvarez from Division Seven — rejected arguments that requiring witnesses to wear face coverings because of the Covid pandemic violated the defendants’ constitutional confrontation rights. In Alvarez, Division Seven said “nearly every state and federal court to consider the issue during our current COVID-19 pandemic has found no confrontation violation because a witness was wearing a mask.”
  • Dependency. The court granted-and-held in two Second District, Division Seven, cases — In re Casey E. and In re Luke S. — that will wait 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?” Division Seven dismissed as moot the appeals in both Casey E. and Luke S.
  • Proposition 66 habeas. The court granted review in In re Whalen, a capital habeas corpus petition, and sent the case back to the Fifth District “with directions to vacate its order denying a certificate of appealability and to consider whether the superior court ruled that the petition or its claims are successive under Proposition 66 and its implementing statute, Penal Code section 1509, subdivision (d), and accordingly whether a certificate of appealability is required under Penal Code section 1509.1, subdivision (c) and rule 8.392(b) of the California Rules of Court, or whether the matter should be remanded to the superior court so it may in the first instance decide whether the petition or its claims are successive under section 1509, subdivision (d), and if so whether to issue a certificate of appealability under section 1509.1, subdivision (c) and rule 4.576(b) of the California Rules of Court.” (Link added.)
  • Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.) This petition — In re Johnson — was filed almost 10 years ago.
  • Incompetency to stand trial. The court granted review in In re Seri and transferred the case back to the First District, Division Three, with directions to have a district attorney “show cause why petitioner’s continued confinement in the county jail does not violate his constitutional and statutory rights (Jackson v. Indiana (1972) 406 U.S. 715; In re Davis (1973) 8 Cal.3d 798; U.S. Const., 14th amend.; Cal. Const., Art. I, § 7; Welf. & Inst. Code, § 5358, subds. (a)(1)(B), (a)(2)), and why the San Francisco County Superior Court should not either: (1) issue an injunction setting a deadline for petitioner’s transfer to Napa State Hospital or some other appropriate treatment facility and ordering the director of that facility to accept him within that time (see In re Loveton (2016) 244 Cal.App.4th 1025; People v. Brewer (2015) 235 Cal.App.4th 122), or (2) grant the relief sought” in the petition for habeas corpus and mandate, a petition Division Three summarily denied.
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds: five more holding for a decision in People v. Strong (see here) and one holding for People v. Mumin (see here).
  • Disposal of grant-and-holds. The court shed 37 former grant-and-holds from its docket —  Joseph v. California Department of Corrections (see here) will be reconsidered in light of the January decision in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 31 more cases were sent back for reconsideration in light of January’s opinion in People v. Tirado (2022) 12 Cal.5th 688, and five more cases were transferred for reconsideration in light of last July’s decision in People v. Lewis (2021) 11 Cal.5th 952. By our count, there are 37 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)

Another no-straight-grant conference

There were no straight grants at the Supreme Court’s conference yesterday, the third time that’s happened over the last four conferences. At those four conferences, the court has straight-granted review in just one case. Actions of note at yesterday’s conference included:

  • Supreme Court allows Scientology lawsuit to proceed in civil court rather than religious arbitration.
  • Supreme Court OKs commutation of long robbery sentence.
  • Economic loss rule: The court granted-and-held in Kia America, Inc. v. Superior Court, deferring action pending a decision in Rattagan v. Uber Technologies, Inc., which is expected to answer the Ninth Circuit’s question, “Under California law, are claims for fraudulent concealment exempted from the economic loss rule?” The Kia America case came to the court after the Fourth District, Division One, Court of Appeal summarily denied defendant Kia’s writ petition. According to Kia’s reply to the answer to the petition for review (the only document I found online), plaintiff agreed that the court should grant Kia’s petition for review, “correctly point[ing] out . . . this case involves facts different from — and far more common than — the facts at issue in Rattagan“, and “both parties agree that review in Rattagan alone is not likely to answer all the questions about application of the economic-loss rule that continue to plague courts and litigants in California.”
  • Moral turpitude. In Stroj on Discipline, the court ordered the State Bar “to consider whether a violation of 18 U.S.C. section 1955 (prohibiting illegal bookmaking businesses) is a crime of moral turpitude per se, whether or not ‘cheating’ is involved. (See In re Stroj on Discipline (Review Dept., Oct. 15, 2021, No. SBC-21-C-30446) p. 2.) Regardless of its conclusion on this legal issue, the State Bar is further directed to hold a hearing to consider whether the facts and circumstances underlying petitioner’s conviction of 18 U.S.C. section 1955 involve moral turpitude, and to report to this court regarding its review and recommendations.”
  • Pokémon no-go: The court denied review in Lozano v. City of Los Angeles, where the Second District, Division Three, in a published opinion, rejected the attempt of two former police officers to overturn their firings. They were terminated for ignoring a call to assist on a department store robbery in progress, instead playing the Pokémon Go video game. The former officers unsuccessfully argued that in-car video system evidence documenting their conduct was improperly used against them.
  • Criminal case grant-and-holds. There were five criminal case grant-and-holds: one more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), two holding for People v. Curiel (see here), and one holding for People v. Padilla (see here), which was argued last month.
  • Disposal of grant-and-holds. Six cases were sent back to the Courts of Appeal for reconsideration in light of recently enacted Senate Bill 483; two had been waiting for both the June decision in People v. Esquivel and for a decision in People v. Hernandez, which was itself transferred for reconsideration in light of SB 483, and four had been waiting for only Hernandez. The court dumped 12 cases that had been waiting for January’s opinion in People v. Tirado (2022) 12 Cal.5th 688; nine were transferred for reconsideration in light of Tirado and review was dismissed in the other three.

Supreme Court to review unpublished opinion on asbestos insurance coverage

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

  • Permission given to grant pardon for robbery convictions in the 1970’s.
  • Insurance exhaustion: When the court grants review, the Court of Appeal has usually issued a published opinion, especially in civil cases. Truck Insurance Exchange v. Kaiser Cement is an exception, where the court agreed to analyze one portion of the Second District, Division Four, 70-page unpublished opinion in the case. In granting review, the Supreme Court limited the issue to: “May a primary insurer seek equitable contribution from an excess insurance carrier after the primary policy underlying the excess policy has been exhausted (vertical exhaustion), or is equitable contribution from an excess insurance carrier available only after all primary policies have been exhausted (horizontal exhaustion)?” The Second District held that horizontal exhaustion applies, noting it is at odds with SantaFe Braun, Inc. v. Insurance Company of North America (2020) 52 Cal.App.5th 19 from the First District, Division Four. It said it “disagree[s] with SantaFe Braun that there is no distinction between multiple layers of excess insurance . . . and layers of primary and excess insurance.” The Supreme Court denied review in SantaFe Braun.
  • No class. The court granted a depublication request in Cirrincione v. American Scissor Lift, Inc. The previously published Third District opinion affirmed the denial of class certification in an employment case that included allegations about wage and meal-and-rest-break violations. There was no petition for review.
  • Bad search. The court denied review but granted a request to depublish the Third District’s opinion in People v. Rorabaugh. The appellate court reversed a first-degree murder conviction after finding a Fourth Amendment violation. Officers, executing a search warrant for the defendant’s home and vehicles there, seized defendant’s car that was not at his home but at a nearby property of another person.
  • Baby bar retake. In Wooten v. State Bar, the court is giving a law student a possible second shot at a fourth taking of the First-Year Law Students’ Exam. The court’s order says the student might not have been “provided with, and able to access, the correct remote exam information for the June 2020 First-Year Law Students’ Examination on the exam date.” The June 2020 test was used as a guinea pig for the subsequent postponed and remote bar exam.
  • Bail bond regulation: The court denied review in BBBB Bonding Corp. v. Caldwell, where the First District, Division One, published opinion held that statutes governing consumer credit contracts, including a notice-to-cosigner requirement, apply to bail bond premium financing agreements between a cosigner and the bail bond agent. (Horvitz & Levy filed the petition for review.) (Related: The Supreme Court doesn’t decide all important issues.)
  • Take home Covid. Ruling in yet another case on its pandemic docket, the court also declined to hear See’s Candies, Inc. v. Superior Court. The Second District, Division One, held in a published opinion that the exclusivity provision of the Workers’ Compensation Act did not bar a wrongful death action by an employee who contracted Covid because of her employer’s alleged failure to take adequate safety precautions and who then passed the disease to her husband, who died. The opinion concluded the death was “allegedly causally related to [the wife’s] alleged infection by the virus in the workplace, but . . . not derivative of that infection.” Unaddressed was whether there is “a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work.” Review was denied even though the appellate court said that “[e]mployer liability for COVID-19 exposure is a significant issue of law that is also of public interest.” (Related: The Supreme Court doesn’t decide all important issues.)
  • Criminal case grant-and-holds. There were nine criminal case grant-and-holds: seven more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), and one more holding for People v. Espinoza (see here).
  • Grant and transfer. The court granted review and transferred a case back to the Court of Appeal for reconsideration in light of Assembly Bill 333.
  • Disposal of grant-and-hold. Apparently because of habeas corpus relief granted by a lower court, the Supreme Court granted the defendant’s request for dismissal of review in a case that was on hold first for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 and then for the pending People v. Strong (see here).
  • Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)

Another no-straight-grant conference

For the second week in a row, the Supreme Court didn’t straight grant any petitions for review at its Wednesday conference. The conference was newly confirmed (here and here) Justice Patricia Guerrero’s first, and also the first since October with seven justices participating. Actions of note included:

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