At the Supreme Court’s conference today, for the third week in a row, there were no straight grants. But there were some actions of note, including:
- Inmate’s attorney-client privilege. The court denied review in People v. Superior Court (Cortez), but depublished the Sixth District Court of Appeal’s opinion. The appellate court held to be not covered by the attorney-client privilege “kites” — unauthorized messages inmates seek to smuggle out of jail — that the defendant included in an envelope he was trying to send to his attorney. “[P]utting something in an envelope addressed to an attorney does not automatically render the item privileged,” the opinion stated. And, in what might have caused the depublication, the Sixth District also concluded that “it is irrelevant whether the jail violated any applicable statute or regulation by opening the envelope and examining its contents outside [the defendant’s] presence.”
- PAGA arbitration. Quintero v. Dolgen California, LLC is another grant-and-hold for Adolph v. Uber Technologies, Inc., in which the court limited the issue to: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” Adolph will be argued in two weeks. The Fifth District’s unpublished opinion in Quintero held “plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in the superior court.”
- Another ICWA grant-and-hold. In re Tyler C. is another grant-and-hold for In re Dezi C., where the court agreed last September to decide what constitutes reversible error when a child welfare agency fails to make the required inquiry under the federal Indian Child Welfare Act and state statutory law concerning a child’s potential Indian ancestry. In Tyler C., the Second District, Division Eight, issued a divided unpublished opinion finding an agency failure to be harmless error “because the children’s designated adoptive parent was their maternal step-grandmother and the record otherwise reveals no reason to know that the children may have Indian ancestry.” Noting it was his “17th dissent on this topic” and citing “the last 500 years of history,” one justice wrote, “The miscarriage of justice is cutting tribes out of the child placement process.”
- Rent during the pandemic. The court denied review in SVAP III Poway Crossings, LLC v. Fitness International, LLC. The Fourth District, Division One, published opinion held that a fitness facility was not excused from paying rent when government orders shut it down for several months because of the COVID pandemic. Division One did say, however, that it was “sympathetic to the hardship Fitness and other businesses faced due to the pandemic and resulting closure orders.”
- Speedy trial and the pandemic. The court denied review in People v. Macovichuk, where the Fourth District, Division One unpublished opinion held a defendant’s right to a speedy trial was not violated by an “11-month delay between October 28, 2020 and September 14, 2021 [that] was due to the disruption to the trial court’s operations caused by the COVID-19 pandemic.” Chief Justice Patricia Guerrero and Justice Carol Corrigan were recused from ruling on the petition for review, probably because they are, respectively, the chair and a member of the Judicial Council, which issued jury-trial-suspension orders during the pandemic. Guerrero recused herself even though she wasn’t on the Judicial Council when it issued the suspension orders.
- Early disposals of old grant-and-holds. The court dismissed review in two grant-and-hold cases waiting for opinions in two lead cases that haven’t been decided yet — one was on hold for People v. Williams (see here) and the other was waiting for In re Vaquera (see here). Both dismissals were based on requests by the defendants. The two grant-and-holds had been on the court’s docket for over two years. The lead cases have, of course, also been around a long time — Vaquera has been fully briefed for almost three years and party briefing in Williams was completed in July 2021. It’s possible that the delay in deciding the lead cases might have mooted the issues in the grant-and-holds.
- Criminal case grant-and-holds. There were six criminal case grant-and-holds: one waiting for the finality of the court’s opinion filed earlier this month in In re Lopez (see here); one holding for a decision in People v. Clark (see here); two more holding for People v. Mitchell (see here); one more waiting for People v. Walker (see here); and one waiting for People v. Catarino (see here) (argued earlier this month), People v. Lynch (see here), and People v. Salazar (see here).