Six months ago, we identified the ten oldest cases on the Supreme Court’s docket, other than death penalty appeals. Now that oral arguments are finished for the term (there won’t be another calendar until September), we’re updating the list. This time, however, we’re not including undecided cases that have already been argued.

To identify the top 10 lingerers, we looked for the matters with the lowest case numbers on the court’s pending issues summaries. They are:

  1. Still at the top of the list is People v. Kopp. The court granted review over four years ago, in November 2019, and it limited the issues to:  “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments?  If so, which party bears the burden of proof regarding defendant’s inability to pay?” Party briefing was completed in January 2021. Amicus briefing was completed in December 2021. (Horvitz & Levy is co-counsel for amicus UC Irvine law school’s Consumer Law Clinic.) A December 2022 docket entry notes that a justice is recused, but it doesn’t say who. The latest docket entries, in October 2023, show a defense motion — and the People’s response to the motion — to stay the appeal and for a limited remand or, in the alternative, for calendar preference. There’s been no ruling on the motion. The court hasn’t even sent an oral argument letter yet. More about the case here.
  2. Taking Offense v. State of California — the court granted review in November 2021. The issue, as summarized by court staff, is: Did the Court of Appeal err in declaring the provision of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights (Health & Saf. Code, § 1439.51) that criminalizes the willful and repeated failure to use a resident’s chosen name and pronouns unconstitutional on its face under the First Amendment? Party briefing was initially completed in June 2022, but the court ordered supplemental briefing in May 2023 about “[w]hether California recognizes a common law taxpayer standing doctrine to bring actions against state officials” and, if so, “whether the plaintiff in this case has established any such standing.” Amicus briefing was completed in September 2022. The supplemental briefing was completed in August 2023. The court sent an oral argument letter in December of last year, but the case might not be calendared until this coming November at the earliest because the court has found good cause for one attorney’s request not to set the case for argument in September or October. More about the case here and here.
  3. People v. Faial — the court granted review in May 2022. The issue, as summarized by court staff, is: Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively to a defendant, serving a suspended-execution sentence, whose probation was revoked before the law went into effect? Briefing was completed in October 2022. In October 2023, the court denied an application (filed more than six months earlier) and a motion (filed 16 months earlier) for a limited remand. No oral argument letter has been sent. More about the case here.
  4. Rodriguez v. FCA US, LLC — the court granted review in July 2022. The issue, as summarized by court staff, is: Is a used vehicle that is still covered by the manufacturer’s express warranty a “new motor vehicle” within the meaning of Civil Code section 1793.22, subdivision (e)(2), which defines “new motor vehicle” as including a “motor vehicle sold with manufacturer’s new car warranty”? Party briefing was completed in May 2023. Responses to amicus briefs were filed in August 2023. Horvitz & Levy is appellate counsel for the defendant in Rodriguez. No oral argument letter has been sent. More about the case here.
  5. Los Angeles Police Protective League v. City of Los Angeles — the court granted review in August 2022 and limited the issues on review to: “(1) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), constitute improper viewpoint discrimination in violation of the First Amendment? (2) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), impose an impermissible burden on the ability to file, or on the City to accept, police misconduct complaints? (3) Is it error to compel the City to comply with a statute that has been ruled unconstitutional by the United States Court of Appeals for the Ninth Circuit?” Party briefing was completed in February 2023. The response to amicus briefs was filed in May 2023. A supplemental amicus brief was filed three days ago. An oral argument letter was sent in March 2024. More about the case here.
  6. Association of Deputy District Attorneys for Los Angeles County v. Gascón — the court granted review in August 2022. The issues, as summarized by court staff, are: (1) Does the Three Strikes law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12) violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act? Party briefing was completed in March 2023. Responses to amicus briefs were filed in June 2023. Horvitz & Levy filed one of the amicus briefs in the case, supporting the plaintiff Association. No oral argument letter has been sent. More about the case here, here, and here.
  7. JJD-HOV Elk Grove, LLC v. Jo-Ann Stores, LLC — this one wasn’t supposed to be on the list because it was on the June calendar, but it was continued at the last moment. The court granted review in October 2022. The issues, as summarized by court staff, are: (1) What analytical framework should be applied in determining the enforceability of co-tenancy provisions in retail lease agreements? (2) Did the Court of Appeal correctly determine that the co-tenancy provision in this case is enforceable? Briefing was completed in January 2023. A bankruptcy stay was in effect for over a month, starting in March 2024. More about the case here and here.
  8. Iloff v. LaPaille — the court granted review in October 2022, and it limited the issues to: “1. Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? 2. May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?” Briefing was completed in August 2023. An amicus brief was filed in September 2023. No oral argument letter has been sent. More about the case here.
  9. People v. Mitchell — the court granted review in December 2022. The issue, as summarized by court staff, is: Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements? Briefing was completed in June 2023. No oral argument letter has been sent. More about the case here.
  10. California Capital Insurance Company v. Hoehn — the court granted review in January 2023. The issues, as summarized by court staff, are: (1) Is there a time limitation for filing a motion under Code of Civil Procedure section 473, subdivision (d) to vacate a judgment that is allegedly void based on extrinsic evidence? (2) In the alternative, does an equitable motion to vacate an allegedly void judgment for lack of service require proving intentional bad conduct in order to show extrinsic fraud? Party briefing was completed in June 2023. Amicus briefs were filed in July 2023. An oral argument letter was sent in March 2024. More about the case here.

Related:

“SCOCA is taking longer to decide its cases”

“Why we’re not worried about SCOCA productivity”