Former Justice Panelli dies

The Mercury News is reporting that former Supreme Court Justice Edward Panelli has died. The report includes an extended obituary that begins, “Justice Edward Panelli, who rose from a hardscrabble childhood in Depression-era Santa Clara Valley to the state’s highest court, died Saturday evening in Saratoga at the age of 92.”

Justice Panelli was appointed by Governor George Deukmejian and served on the court from December 1985 until January 1994. He replaced Justice Otto Kaus and was succeeded on the bench by Justice Kathryn Werdegar, who, before her appointment to the Court of Appeal, had served as Panelli’s senior staff attorney. Panelli had previously been the first presiding justice of the Sixth District Court of Appeal and also a justice of the First District, and before that a judge of the Santa Clara Superior Court.

News reports discussed Panelli’s tangential involvement in the Tom Girardi scandal as a private judge long after his retirement from the court.

Panelli’s oral history was published in the 2022 edition of the California Supreme Court Historical Society’s journal, California Legal History.

Bystander-NIED opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Downey v. City of Riverside. (Briefs here; oral argument video here.) This is one that torts professors are probably anxiously awaiting.

Downey is expected to decide this question: In order to recover damages for negligent infliction of emotional distress as a bystander to an automobile accident allegedly caused by dangerous conditions on nearby properties, must the plaintiff allege that she was contemporaneously aware of the connection between the conditions of the properties and the victim’s injuries? The court granted review in July 2023. More about the case here.

This will be the second decision in the nine cases argued on the late-May calendar. It’s filing Monday even though it’s not due until August 19 and even though there are still four undecided cases from the early-May calendar with opinions expected by August 5.

Opinions in the other seven late-May cases should file by August 19, except for the opinion in Castellanos v. State of California, which, because of post-argument briefing, isn’t due until August 29. Additional argued but undecided cases are the seven on the June calendar (opinions expected by August 29).

The Downey opinion can be viewed Monday starting at 10:00 a.m.

Another SB1437 murder resentencing case added to the docket at a light conference [Updated x2]

At its weekly conference yesterday, the Supreme Court ruled on only 76 matters, 59 if you don’t count disposals of previous grant-and-hold cases. Relatively, that’s a small number. But there were notable actions, including:

Felony murder resentencing. Taking yet another Senate Bill 1437 case, the court agreed to decide People v. Morris. A 2-1 published opinion by the Fourth District, Division Three, Court of Appeal applied the Supreme Court’s decision in People v. Curiel (2023) 15 Cal.5th 433 (see here) and affirmed the summary denial of a petition to resentence the defendant who was convicted of first degree murder in 2013. The majority held the 2018 legislation that limited liability for felony murder didn’t help the defendant because “[t]he jury instructions and jury verdicts in this case establish the jury necessarily concluded defendant possessed an intent to kill during the commission of the underlying felonies and aided and abetted the actual killer in committing those felonies.” (Emphasis added.) The dissent, on the other hand, asserts the prosecution must establish not only an intent to kill, but also that “the defendant aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder.” (Original emphasis.) Morris joins a substantial number of other decided or pending SB 1437 cases. In fact, the Supreme Court filed an SB 1437 opinion just last week. (See also here, here, here, here, here, here, and here.)

[July 19 update: Here’s the issue as summarized by court staff — “Did the trial court correctly deny defendant’s Penal Code section 1172.6 resentencing petition at the prima facie stage on the ground that the actus reus of first degree felony murder requires that a defendant who is not the actual killer need only aid in the underlying felony and not in the killing itself (Pen. Code, § 189, subd. (e)(2))?”]

Targeted healthcare initiative stays on the ballot. The court denied review in AIDS Healthcare Foundation v. Superior Court, a writ petition that attempted to knock off this November’s ballot the initiative titled “Protect Patients Now Act of 2024.” Bob Egelko gives a detailed report on the initiative and its backstory in “California voters can decide ballot measure targeting L.A. nonprofit, state Supreme Court rules.” It begins, “The California Supreme Court refused Wednesday to remove from the November ballot an initiative backed by apartment owners that would prohibit one man, a wealthy health care executive and supporter of rent control, from spearheading future ballot measures.” The writ petition was filed in April in the Third District, which summarily denied the petition two months later. The Supreme Court last month ordered a different initiative from the ballot.

Three votes for review in a double jeopardy case. The court denied review in People v. Barooshian, but just barely, as Justices Goodwin Liu, Martin Jenkins, and Kelli Evans all recorded dissenting votes. The Fourth District, Division One, published opinion affirmed a conviction of drunk-driving murder. A previous jury had hung on the murder charge, but convicted the defendant of gross vehicular manslaughter while intoxicated and the defendant asserted a double jeopardy claim based on the contention the manslaughter charge was a necessarily included offense of the murder charge. Relying on People v. Sanchez (2001) 24 Cal.4th 983, not a double jeopardy case, Division One said gross vehicular manslaughter while intoxicated is not a lesser included offense of murder and it refused to endorse “an unprecedented extension” that would “bar subsequent prosecution for offenses that are merely lesser related offenses.”

Two votes for review in two youth offender parole cases. The court also denied review in People v. Freeman and People v. Quesada over recorded dissenting votes in both by Justices Liu and Evans. Both cases were decided by unpublished Second District opinions, Freeman from Division Three and Quesada from Division Seven. The defendants were serving life without parole sentences for special circumstances murders committed after they turned 18 years old and they unsuccessfully challenged their statutory ineligibility for youthful offender parole hearings as unconstitutional under equal protection and cruel and unusual punishment principles. Last month, the two justices filed a separate statement dissenting from the denial of review in a similar case, arguing the Supreme Court should decide the cruel and unusual punishment issue.

Batson legislation reversal. The court denied a district attorney’s request to depublish the 2-1 Second District, Division Six, published opinion in People v. Uriostegui. The majority reversed a residential burglary based on Code of Civil Procedure section 231.7, which the opinion said was enacted “to help eradicate the improper removal of jurors based on their actual or perceived race, ethnicity, gender, or membership in another specified protected group.” The majority held invalid the practice of giving “a facially neutral reason . . . to remove a juror—such as “lack of life experience”—[that] is based on a presumptively invalid reason, such as lack of employment or demeanor.” The dissent said, “I applaud the Legislature’s recognition that implicit bias — an unconscious trait we all carry within us whatever our race, background, or life experience — has no place in our judicial system. . . . Yet I seriously doubt the majority’s literal interpretation of . . . section 231.7 requires reversal here.” [Update: Just last week, Justices Liu and Evans filed a separate statement discussing section 231.7.]

Dependency depub. The court denied the petition for review in In re Ca.M., but it granted two requests to depublish the Second District, Division Five, partially published opinion. Division Five followed “language” in In re I.J. (2013) 56 Cal.4th 766, an opinion Division Five said “has not since been disapproved.” The I.J. language was a quote from a Court of Appeal opinion: “ ‘When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.’ ” (Id. at p. 773.) Division Five found substantial evidence that supported one jurisdictional finding the appealing mother did not challenge was enough to avoid ruling on the one finding she did challenge. The appellate court also concluded the Supreme Court’s subsequent decision in In re D.P. (2023) 14 Cal.5th 266, giving discretion to decide moot issues (see here), did not “require reviewing courts to invariably consider whether to exercise their discretion to decide a parent’s challenge to one adverse jurisdiction finding even if there are other adverse findings against the parent that are uncontested.”

Parole denial grant-and-transfer. The court granted review in In re Renteria and then sent the case back to the Second District, Division Seven, which had summarily denied a pro per’s habeas corpus petition. Division Seven is directed to issue an order “to show cause why relief should not be granted on the grounds petitioner’s reincarceration for his 2021 parole violation amounts to cruel and unusual punishment under the state and federal Constitutions and that the Board of Parole Hearings erred by failing to consider youth offender and elderly parole suitability factors at petitioner’s initial parole reconsideration hearing. (See Pen. Code, § 3000.1, subd. (d); Cal. Code of Regs., tit. 15, § 2775(c).)”

Criminal case grant-and-holds. There were two criminal case grant-and-holds:  one more waiting for a decision in  People v. Patton (see here) and one more on hold for People v. Superior Court (Guevara) (see here).

Burgos Grant-and-hold dispositions (see here). 17 grant-and-hold cases have left the building. Eight were waiting for only the gang-evidence decision in People v. Burgos (2024) 16 Cal.5th 1 (see here); review was dismissed in four and four were returned to the Courts of Appeal for reconsideration. Review was also dismissed in seven cases that were on hold for Burgos and, earlier, the death penalty appeal in People v. Tran (2022) 13 Cal.5th 1169 (see here); in one case holding for Burgos, the youth offender parole decision in People v. Hardin (2024) 15 Cal.5th 834 (see here), and the gang crime opinion in People v. Rojas (2023) 15 Cal.5th 561 (see here); and in one case holding for Burgos and Rojas.

Insurance policy limitations period doesn’t shorten time for UCL lawsuit

In Rosenberg-Wohl v. State Farm Fire and Casualty Company, the Supreme Court today determines the time to file an insured’s action under California’s unfair competition law, a lawsuit the court says “challenges the insurer’s general practices in handling claims and through which the insured seeks only declaratory and injunctive relief on behalf of all policyholders.” It’s the UCL four-year statute of limitations, not the one-year provision in the Insurance Code — and similar language in the insured’s policy — for a “suit or action on th[e] policy.” Horvitz & Levy represents State Farm in the case, which arose from the denial of a claim for repairing a staircase in the plaintiff’s home.

The court’s unanimous opinion by Chief Justice Patricia Guerrero construes the plaintiff’s complaint as “requesting a declaration concerning State Farm’s allegedly widespread practices of summarily denying claims without proper investigation and not providing sufficiently clear explanations to policyholders regarding why their claims have been denied.” The court concludes the insured’s action is an “essentially ‘preventive’ ” one “to which neither the standard policy’s language [provided by statute], nor the policy reasons underlying the Legislature’s authorization of a one-year limitations period for filing certain kinds of claims-related lawsuits, applies.” Instead, the one-year statutory period is “concerned with causes of action that in some manner seek a financial recovery attributable to a claimed loss that was coverable under a policy,” the court says.

The opinion does, however, appear to leave open the question of whether a plaintiff seeking relief only for an insurance carrier’s general claims handling practices has standing to bring a UCL action.

The court reverses the First District, Division Two, Court of Appeal’s 2-1 published opinion. The court also “decline[s] to adopt the[ ] approach” of two contrary federal district court decisions.

Insurance/UCL statute of limitations opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Rosenberg-Wohl v. State Farm Fire and Casualty Company. (Briefs here; oral argument video here.)

When the court granted review in the case in October 2023, it limited the issue to: “When a plaintiff files an action against the plaintiff’s insurer for injunctive relief under the Unfair Competition Law, which limitations period applies, the one-year limitations period authorized by Insurance Code section 2071 or the four-year statute of limitations in Business and Professions Code section 17208?” More about the case here. Horvitz & Levy is Supreme Court counsel for State Farm.

It’s been just under two months since Rosenberg-Wohl was argued, so the opinion filing is a bit faster than usual. It will be the first decision in the nine cases argued on the late-May calendar. There are still four undecided cases from the early-May calendar. (Opinions in those are expected by August 5.) Opinions in the other eight late-May cases should file by August 19, except for the opinion in Castellanos v. State of California, which, because of post-argument briefing, isn’t due until August 29. Additional argued but undecided cases are the seven on the June calendar (opinions expected by August 29).

The Rosenberg-Wohl opinion can be viewed tomorrow starting at 10:00 a.m.

Historical Society announces winners of its annual writing competition

The California Supreme Court Historical Society has announced the winners of its annual Selma Moidel Smith Law Student Writing Competition. (I’m on the Society’s board of directors.)

The winners will receive cash prizes and have their papers published in the next edition of the Society’s journal California Legal History. The winners, their law schools, and their award-winning papers (with commentary by the competition’s judges) are:

First place: Gabrielle Braxton, Stanford. “Guess Who’s Coming to Stanford? The Battle for Desegregation of an Elite Law School.” Only 3.5% of Black Americans held a bachelor’s degree in 1960. And SLS graduated no black students until 1968 and did not tenure an African American man until 1972 – and an African American woman until fifty years later. Based on painstaking archival research and oral histories, Braxton’s important study investigates the struggle, led by minority students and one associate and one assistant dean, to integrate the institution. This paper is a valuable contribution to the history of racial integration and legal education at California’s most eminent private law school.

Second place: Douglas Sangster, Berkeley. “The Codification of Independent Living.” As Sangster ably demonstrates, the work, first of 1960s student activists and later, of “student activists-turned bureaucrats,” proved crucial to the establishment of the University of California’s Physically Disabled Students Services Program and the creation of the first Center for Independent Living in Berkeley in 1972. These activists were also central to the passage of Assembly Bill No. 204 in 1979, which directly involved the state of California in the funding of independent state living centers. “The Codification of Independent Living” charts the challenges to the attitudes of and towards the disabled that enabled the social model of disability to take its place alongside, if not altogether to supplant, the medical model.

Third place: Caroline Lester, Berkeley. “Justice Denied and Forgotten: The Hidden History of Alaska’s World War II Internment Camps.” In this paper, Lester recovers a long overlooked, but important, parallel to the federal government’s removal and internment of Japanese Americans from California and other west coast states on the recommendation of Earl Warren, then attorney general of California. In the Territory of Alaska, Unangax̂ Natives were equally brutally treated – and about 10 % died. This paper documents this process and its relationship to Japanese internment. Crucially, while the Japanese were finally granted a formal apology and financial compensation (however small), no apology was accorded to Aleutian Islands people and any funds were only held in trust. Both illuminating and disturbing, this paper illustrates the reverberations of the miscarriage of justice to Japanese Americans in California and its replication elsewhere.

The competition judges are University of Pennsylvania Professor Sarah Barringer Gordon and UC Santa Barbara Professor Laura Kalman. Both are members of the Society’s board of directors.

Arbitration agreement might be enforceable after unconscionable terms are severed

In Ramirez v. Charter Communications, Inc., the Supreme Court today finds three terms in an arbitration agreement to be unconscionable, but it concludes the agreement might still be enforceable if the invalid terms are stricken.

In a fired employee’s action for discrimination, harassment, and retaliation under California’s Fair Employment and Housing Act, the court’s unanimous opinion by Justice Carol Corrigan states that the arbitration agreement the employee signed was an “adhesion contract required as a condition of employment” and that, “although adhesion alone generally indicates only a low degree of procedural unconscionability, the potential for overreaching in the employment context warrants close scrutiny of the contract’s terms.”

The court then finds substantively unconscionable these terms: (1) compelling “arbitration of claims more likely to be brought by an employee and exclud[ing] claims more likely to be brought by [the employer],” (2) requiring submission of a claim to the employer within a time that “truncates the period the Legislature has determined employees need to effectively vindicate their rights,” and (3) awarding interim attorney fees against a party who incorrectly resists arbitration, even though, by statute, fees in FEHA actions can be awarded against a plaintiff only if “the action was frivolous, unreasonable, or groundless.” On the other hand, the court found unobjectionable a term limiting discovery, as long as the term is “construed to allow the arbitrator to order additional discovery as needed to allow a full and fair exploration of the issues in dispute.”

However, despite the invalid terms, the employer can still force arbitration, the court finds, if the invalid terms are severable and it leaves to the Court of Appeal resolution of the severability issue. But, the court directs, it’s the quality not the quantity of invalid terms that’s determinative: “no bright line rule requires a court to refuse enforcement if a contract has more than one unconscionable term. Likewise, a court is not required to sever or restrict an unconscionable term if an agreement has only a single such term. . . . At the outset, a court should ask whether ‘the central purpose of the contract is tainted with illegality.’ ” Moreover, the court holds, failing to rehabilitate the agreement by severance won’t violate the Federal Arbitration Act: “The approach adopted here is not hostile to arbitration.”

The court reverses the Second District, Division Four, Court of Appeal published opinion concerning the discovery term and the appellate court’s severability analysis. The court disapproves Patterson v. Superior Court (2021) 70 Cal.App.5th 473 by the Second District, Division Seven, to the extent Patterson held the attorney fee term was salvageable by construing it as allowing a fee award against a plaintiff only if their opposition to arbitration was frivolous. There was no petition for review in Patterson. The court also disapproved the “line of reasoning” in several Court of Appeal opinions that determined the validity of discovery limitation terms in light of “post-contract formation circumstances” instead of focusing only “on circumstances known at the time the agreement was made.”

Recent legislation causes reversal of white supremacist gang member’s death penalty

On Thursday, the Supreme Court reversed the death penalty and some convictions in People v. Lamb based on retroactively applied 2021 legislation — Assembly Bill No. 333 — that narrowed criminal liability for gang-related activities. Lamb was convicted of murdering a fellow member of a white supremacist gang in 2002. The court left intact convictions for first degree murder, attempted murder of a police officer, conspiracy to commit murder, and possession of a firearm by a felon.

The court’s unanimous opinion by Justice Kelli Evans overturned convictions for street terrorism and unlawfully carrying a loaded firearm in public by an active participant in a criminal street gang, and also the true findings on gang enhancements and the gang-murder special circumstance supporting the death sentence, all of which the court says might be retried. The court concluded, “although there was an abundance of gang evidence presented to the jury, and each predicate offense had a gang enhancement under a [pre-AB 333] version of [the law], the record does not sufficiently disclose the circumstances surrounding the predicate offenses or how any specific predicate offense actually benefited the gang.”

As is the norm, the defendant made lots of unsuccessful arguments. One argument — that the superior court erred in allowing the jury to see a TV news report about the defendant’s and victim’s gang, including an interview of the victim — the Supreme Court found to raise a “close” question, but rejected it because the superior court had not abused its “broad discretion” and because admission of the evidence was harmless even if erroneous. The court also found to be a “close question” a claim the prosecutor committed misconduct by referencing his own experience. And it deemed unavailing the contention that some expert testimony was improper under People v. Sanchez (2016) 63 Cal.4th 665 (see here).


Supreme Court explains how to prove a gang enhancement

Application of legislation limiting what is a gang crime doesn’t violate state constitution

New legislation requires reversal of gang enhancement

Unproven enhancement can’t be imposed when resentencing after murder conviction is vacated

In People v. Arellano, the Supreme Court on Thursday restricted a superior court’s resentencing options for defendants who successfully have their murder convictions vacated under 2018 legislation — Senate Bill 1437 — that limited accomplice liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine.

The court’s unanimous opinion by Justice Kelli Evans concludes that, although the relevant statute — Penal Code section 1172.6 — requires a defendant be resentenced for the felony on which the vacated murder conviction was based even if that felony was not charged, an enhancement to the felony can’t be imposed “unless [it] was pled and either proven to the trier of fact or by the defendant’s admission in open court.” In the case before the court, a second degree murder conviction was vacated and the defendant was properly resentenced for attempted robbery, but the superior court erred in also imposing a firearm use enhancement.

The court said, “We deem it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions for the entire range of offense-specific sentencing allegations and enhancements every time a petitioner succeeds in setting aside a murder conviction under section 1172.6.”

Since its enactment, SB 1437 has been a mainstay of the court’s docket. (See, e.g., here, here, here, here, here, here, and here.)

The court affirmed the Sixth District’s published opinion “to the extent it ordered the firearm use enhancement stricken,” but reversed “to the extent [the appellate court] ordered a remand to the trial court for redesignation of the underlying felony or felonies.” The Sixth District had disagreed with the First District, Division Five, opinion in People v. Howard (2020) 50 Cal.App.5th 727 about when an enhancement can be imposed on resentencing, but the Supreme Court distinguished Howard instead of disapproving it.

Arbitration opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Ramirez v. Charter Communications, Inc. (Briefs here; oral argument video here.)

Ramirez is expected to decide whether the Court of Appeal erred in holding that a provision of an arbitration agreement allowing for recovery of interim attorney’s fees after a successful motion to compel arbitration, was so substantively unconscionable that it rendered the arbitration agreement unenforceable. The court granted review in June 2022. More about the case here.

This will be the fifth of nine opinions for cases argued on the early-May calendar. Opinions in the remaining four cases are expected by August 5. Additional argued but undecided cases are the nine on the late-May calendar (opinions expected by August 19, except for the opinion in Castellanos v. State of California, which, because of post-argument briefing, isn’t expected until August 29), and the seven on the June calendar (opinions expected by August 29).

The Ramirez opinion can be viewed Monday starting at 10:00 a.m.

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