Here are some of the notable actions at yesterday’s Supreme Court conference, a double one:

Release of liability. The court agreed to hear Whitehead v. City of Oakland. The First District, Division Three, Court of Appeal’s belatedly published opinion affirmed summary judgment against a plaintiff who, before being injured in a bicycle-v.-Oakland-pothole accident during a training ride for a fundraiser, had signed an agreement releasing from liability the “owners/lessors of the course or facilities used in the Event.” Division Three rejected the argument that the release was invalid because it affected a public interest, i.e., the defendant City’s maintenance of safe public roads. Instead, the appellate court concluded the deciding factor was that “the cycling event was a nonessential sports activity that did not affect the public interest.”

[May 17 update: Here’s the issue as summarized by court staff — “Does a liability release agreement between a bicyclist and the organizer of a recreational bicycle ride extend to the alleged negligent maintenance of a public road by a municipality named in the agreement but not a party to it?”]

Suspension or disbarment? The court granted the petition for review by the State Bar’s Chief Trial Counsel in In re Bradshaw. The Chief Trial Counsel contends the State Bar Court’s Review Department went too easy on a lawyer in recommending only a six-month suspension, instead of disbarment, for what the Review Department’s 2-1 unpublished opinion called “professional misconduct for three grossly negligent misrepresentations.” The dissenting judge, concluding that the misrepresentations were intentional and that the attorney “schemed to defraud,” preferred the disbarment recommendation of the Bar Court’s hearing judge. The attorney had been removed as trustee for an elderly client due to the attorney’s undisclosed conflicts of interest. The Supreme Court had granted review once before, four years ago, at that time ordering the Review Department to reconsider its first decision dismissing the charges against the attorney. Here are the petition for review, answer, and reply. This might be the first straight review grant in a Bar discipline matter since the court rejected a Review Department suspension/probation recommendation and ordered disbarment of an attorney who had pleaded guilty to possession or control of child pornography. (In re Grant (2014) 58 Cal.4th 469.)

[May 17 update: Here’s the issue as summarized by court staff — “What is the appropriate discipline in light of the record in this case?”]

Surreptitious police questioning. The court denied review and a depublication request in People v. Felix, but Justices Goodwin Liu and Kelli Evans recorded votes to hear the case. A 2-1 published opinion by the Second District, Division Eight, affirmed a conviction for two counts of first degree murder. There were multiple issues and Justices Liu and Evans did not say why they wanted to grant review, but it was probably because of the Division Eight majority’s holding that there was no problem with an undercover police officer obtaining incriminating statements after the defendant had invoked his Miranda rights. The Division Eight dissenting justice wrote that use of the undercover officer deprived the defendant of “an opportunity to knowingly and intelligently waive his previously asserted right to have counsel present during questioning.” Justice Liu has long sought to have the Supreme Court decide this issue. (See hereherehere, and here.) He now apparently has an ally in Justice Evans.

Murder resentencing depublication. The court denied review in People v. Hollywood, but it depublished the Second District, Division Six, opinion, which upheld the denial of a resentencing petition by a defendant who is serving a life without parole sentence for first degree murder and kidnapping. The opinion states at the outset, “Leniency for a person who orders his cohorts to murder a 15-year-old child with a machine gun? The child is dead and our answer is, no.” The Supreme Court had reversed a pre-trial Division Six decision that ordered the recusal of a prosecutor who consulted on a movie about the defendant’s story. (Hollywood v. Superior Court (2008) 43 Cal.4th 721.) Division Six held that, although the Supreme Court “has told us that the trial court should not weigh the evidence at a stage one [resentencing] hearing [citation], [t]here must, of necessity, be an exception where the trial judge ruling on resentencing, heard the evidence at a death penalty trial and where the Supreme Court recites these facts in the same case.” A concurring justice agreed with the affirmance, but wrote separately “because I do not agree that factfinding is appropriate at the prima facie stage in this case.”

Transfer from juvenile to criminal court. Over Justice Liu’s recorded dissent, the court denied review in In re Miguel R. In a published opinion, the Fourth District, Division Two, affirmed an order transferring the defendant to criminal court to be tried for a murder he allegedly committed when he was 17. Analyzing recent legislation concerning such transfers, Division Two concluded, “(1) the statute does not require that any one factor be given greater weight than others in determining whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court, and (2) although the current version of [Welfare and Institutions Code] section 707 expressly requires consideration of the minor’s history of involvement in the child welfare or foster care system, human trafficking, sexual abuse, or sexual battery, and prior versions of the statute did not contain that express requirement, evidence of any such history was nonetheless relevant under prior versions of the statute.” (Link added.)

Racial Justice Act. The court issued an order to show cause on the In re Nelson habeas corpus petition. Cause is to be shown in the superior court “why petitioner is not entitled to the production of discovery for purposes of presenting a motion under the Racial Justice Act. (See Pen. Code, § 745, subd. (d).)”

Dissent from denial of pro per habeas petition. After requesting a response to a pro per’s habeas corpus petition in In re Sandstrom, the court denied the petition, but Justice Joshua Groban recorded a vote to issue an order to show cause. Defendant’s conviction of sexually abusing a six-year-old was affirmed by the Fourth District, Division Two, in an unpublished opinion. In his habeas petition, the defendant claimed ineffective assistance of counsel in, among other things, misinforming him about facts relevant to a proffered plea deal and forcing him to not testify in his own defense. The defendant alleged that one of his attorneys was suspended by the State Bar for incompetence and misconduct during the defendant’s trial. Here are the petition, the response, and the reply to the response.

Forum selection grant-and-holds. Lockton Companies LLC — Pacific Series v. Superior Court (Barnes), Lockton Companies LLC — Pacific Series v. Superior Court (Racunas), and Lockton Companies LLC — Pacific Series v. Superior Court (Roderick) are all grant-and-holds for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause. Writ petitions were summarily denied in Barnes (by the Second District, Division Two), Racunas (by the Second District, Division Eight), and Roderick (by the Second District, Division Four). By our count, there are now six Lockton Companies grant-and-holds. (See here.) Another pending review-granted case about forum selection clauses is Zhang v. Superior Court (see here).

Section 998 grant-and-hold. Ayers v. FCA US is a grant-and-hold for Madrigal v. Hyundai Motor America (see here), where the court limited the issue to: “Do Code of Civil Procedure section 998’s cost-shifting provisions apply if the parties ultimately negotiate a pre-trial settlement?” Agreeing with the 2-1 Third District’s Madrigal opinion now under review, the Second District, Division Eight, 2-1 published opinion in Ayers answered “yes.” Horvitz & Levy is appellate counsel for the defendant.

Criminal case grant-and-holds. There were three criminal case grant-and-holds:  one more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), one more waiting for People v. Mitchell (see here), and one more on hold for People v. Walker (see here).

Grant-and-hold disposition (see here). The court disposed of 21 cases that had been holding for the February sentencing/notice decision in In re Vaquera (2024) 15 Cal.5th 706 (see here). Review was dismissed in four cases and the other 17 were sent back to the Courts of Appeal for reconsideration in light of the decision.