Back in LA: Equal protection, Lemon Law cases among the five arguments on the December calendar

The Supreme Court today announced it will hear five oral arguments in December. For the first time in four years, the court will be sitting in Los Angeles.

The arguments will be live streamed, and opinions in the cases should file by March 4, 2024.

On Tuesday, December 5, the court will hear the following cases (with the issue presented as summarized by court staff or limited by the court itself; additional information about a case can be found at the link showing when the court agreed to hear the case):

Niedermeier v. FCA US LLC: (1) Does the statutory restitution remedy under the Song-Beverly Act (Civ. Code, § 1790 et seq.) necessarily include an offset for a trade-in credit? (2) If the amount that a consumer has received in a trade-in transaction must be subtracted from the consumer’s recovery, should that amount be subtracted from the statutory restitution remedy or from the consumer’s total recovery? This Lemon Law case has been on the docket a while. The court granted review in February 2021.

People v. Clark: When the court granted review in October 2022, it limited the issue to, “Can the People meet their burden of establishing a ‘pattern of criminal gang activity’ under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during each predicate offense?”

Haggerty v. Thornton: Can a trust 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? The court granted review in December 2021. Chief Justice Patricia Guerrero is recused; she authored the Court of Appeal opinion under review. Fifth District Court of Appeal Justice Charles Poochigian is sitting pro tem in her place.

People v. Hardin: Does Penal Code section 3051, subdivision (h), violate the Equal Protection Clause of the Fourteenth Amendment by excluding young adults sentenced to life without the possibility of parole from youth offender parole consideration, while young adults sentenced to parole-eligible terms are entitled to such consideration? The court granted review in January of this year. It later asked for supplemental briefing that suggests it’s open to revising the way it analyzes equal protection claims.

TriCoast Builders, Inc. v. Fonnegra: (1) When a trial court denies a request for relief from a jury waiver under Code of Civil Procedure section 631, and the losing party does not seek writ review but instead appeals from an adverse judgment after a bench trial, must the appellant show “actual prejudice” when challenging the order on appeal? (2) Does a trial court abuse its discretion when it denies a request for relief from a jury trial waiver without a showing that granting the request will prejudice the opposing party or the trial court? The court granted review in April 2022. Horvitz & Levy filed an amicus curiae brief supporting the defendant.

“How #MeToo Played Out in 19th-Century California”

Professor Erika Pérez writes on Verso, the Huntington Library’s blog, about the late 19th Century case of Jessie Marshall v. Jacob Taylor. Taylor, a married San Diego hotel owner, was found liable to Marshall, who was a 16-year-old waitress at the hotel. When the Supreme Court affirmed the $25,000 judgment against Taylor, it described his conduct as: “with force and violence [he] made an indecent assault upon [Marshall], and then and there wickedly seduced, debauched, and carnally knew her, when and whereby she became pregnant with child.” (Marshall v. Taylor (1893) 98 Cal. 55, 56.)

Among other things, the court rejected an excessive-damages argument, saying, “Courts are not disposed to make smooth the ways of the seducer.” (98 Cal. at p. 62.)

Pérez reports, “The Los Angeles Area Court Records, an extensive collection of historical cases that the Los Angeles Superior Court placed on long-term deposit at The Huntington in 1996, offer researchers like me invaluable evidence of everyday contestations over sexuality and gender relations in early California, the blurring of lines between sexual consent and coercion, and abuses of women whose economic survival was at stake.”

Supreme Court’s docket composition and reversal rate

SCOCAblog, the online publication of the California Constitution Center at Berkeley Law and of the UC Law Journal, looks at the types of cases the Supreme Court has decided by opinion and also how often the court reverses the Courts of Appeal.

Looking at nearly 1,000 decisions from 2010 to 2022, SCOCAblog finds “a quarter were automatic [death penalty] appeals [excluded from the count are the small number of opinions deciding death row inmates’ habeas corpus petitions (e.g., here)] , about a third were general criminal, and 40% were general civil.”

The study found most death penalty judgments are affirmed on appeal and, excluding those appeals, a “noncapital case’s odds of being affirmed are about 40%, and a reversal in whole or in part is about 60%.”

Legislature filled a gap Justice Liu identified in statute about resentencing of veterans

The Supreme Court today observes Veterans Day. So, it’s an appropriate time to remember that Justice Goodwin Liu issued a 2021 separate statement exposing a gap in a veteran-specific sentencing statute and that the Legislature responded with corrective legislation.

When the court denied a petition review in People v. Valliant, Justice Liu didn’t disagree, but he did write a separate statement to echo the Fourth District, Division Three, Court of Appeal’s concern that the relevant statute was unintentionally narrow and its suggestion of a remedial bill. (People v. Valliant (2020) 55 Cal.App.5th 903 [275 Cal.Rptr.3d 221, 228–230]; see here.)

The statute — Penal Code section 1170.91 — makes post-traumatic stress disorder and other circumstances resulting from military service mandatory mitigating factors in sentencing a criminal defendant. At the time Valliant was decided, section 1170.91 was retroactive only to those defendants sentenced before 2015, when the legislation first took effect.

Justice Liu wrote that, “by requiring that the original sentencing occur prior to January 1, 2015, for an individual to be eligible for resentencing — irrespective of when it was determined that the trauma, mental health, or substance abuse conditions were a result of military service — section 1170.91, subdivision (b) fails to ensure equal treatment of all veterans.” (275 Cal.Rptr.3d at p. 229.) He observed both that “the scientific literature has recognized delayed onset PTSD, particularly among veterans, where symptoms can take time to fully manifest” and that the VA administrative process can substantially delay verification of the mitigating factors.

The following year, the Legislature accepted the constructive judicial criticism. It enacted Senate Bill 1209, which, as described by the Legislative Counsel’s digest, now allows a qualifying veteran-defendant “to petition for recall of sentence and resentencing . . . without regard to whether the defendant was sentenced prior to January 1, 2015.” The bill’s author expressly noted Justice Liu’s concerns.


Dissenting votes from denials of petitions for review raising other section 1170.91 issues. (Here and here.)

Justice Liu separate statements influence legislative session

The (normal) opinion drought continues

The Supreme Court hasn’t filed an opinion since the end of August, when it decided Camacho v. Superior Court (2023) 15 Cal.5th 354 (see here). It today announced that it won’t be filing any opinions on Monday.

If an opinion comes out a week from today (the next regular filing day after Monday), it will have been a 77-day gap between decisions.

The drought is common for this time of year. The gap was 80 days long in 2022. It happens because the court hears no arguments in July and August and it’s required to decide its pre-July calendar cases within 90 days.

We should see opinions soon, however, if not next Thursday, then not long afterward. The three cases argued in September are due to be decided by December 4.

Legislature codifies Supreme Court opinion on noncompete agreements

Business and Professions Code section 16600 provides that, with some stated exceptions, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” In Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, the Supreme Court held that the general statutory prohibition covers employee noncompetition agreements.

Last month, the Governor signed legislation — Assembly Bill 1076 — amending section 16600 to provide that the statute “shall be read broadly, in accordance with Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, to void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored, that does not satisfy an exception in this chapter.” The bill also states, the amendment “does not constitute a change in, but is declaratory of, existing law.” (See a legislative analysis here.)

“Ex-Calif. Top Judge On Facing & Fighting Sexism In The Law”

Law360’s Hannah Albarazi writes about a very personal interview with retired Chief Justice Tani Cantil-Sakauye. The article starts by saying the former Chief “broke through barriers on her rise to the top of the Golden State’s judiciary, but as a law student she endured a haunting experience that would shape her legal career.”

The experience was a crude and deceptive solicitation (an understatement) by an attorney during a Cantil-Sakauye summer clerkship at a Bay Area law firm. She said to the reporter, “I think you’re the third person I’ve ever told” about the incident.

Cantil-Sakauye also related the less reprehensible, but still unmistakable, sexism she encountered at every stage of her legal career, from attorney to judging at all three levels of the judiciary, as well as heading the judicial branch as chair of the Judicial Council. For example, she would be ignored by judges when she was a lawyer, interrupted by lawyers when she was a judge and, even when she ascended to the top position of one of California’s three branches of government, “there were some groups of judges who refused to call me the chief, so they called me ‘the lady.’ ”

As Chief Justice, she said, “I ordered that [implicit bias] be taught to all judges, knowing full well I cannot order judges to do anything because I’m not their boss. I basically dared them to say that they objected to me ordering them, and they didn’t object.”


“California’s chief justice has had her own #MeToo moments”

The Chief Justice on “What I Told My Daughter(s)”

Chief Justice appoints another work group, this one to address bias in court proceedings

“Chief justice of the California Supreme Court leaves the Republican Party, citing Kavanaugh”

Chief Justice praises Justice O’Connor as a “righteous icon in the law”

Chief Justice brands Assemblyman Calderon’s comments about her appearance “offensive” and “unresponsive”

Chief Justice: “there’s still an implicit bias against Asian Americans”

Anti-Asian violence is “personal” for the Chief Justice

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