Teeing up an unresolved bail question

When the Supreme Court last year issued its landmark In re Humphrey opinion holding that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional” and that completely refusing pretrial release for public or victim safety reasons must be based on “clear and convincing evidence that no condition short of detention could suffice” (In re Humphrey (2021) 11 Cal.5th 135, 143), it specifically left unresolved an issue regarding the interpretation of two possibly conflicting state constitutional provisions. Yesterday, the court indicated the time for addressing the question — at least in the Courts of Appeal — is approaching.

The Humphrey court said, “we leave for another day the question of how two constitutional provisions addressing the denial of bail — article I, sections 12 and 28, subdivision (f)(3) — can or should be reconciled, including whether these provisions authorize or prohibit pretrial detention of noncapital arrestees outside the circumstances specified in section 12, subdivisions (b) and (c).” (11 Cal.5th at p. 155, fn. 7.) When the court granted review in the case, it expressly asked for briefing on that question.

Section 12 provides a right to release on bail “except for . . . (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.”

Subdivision (f)(3) of section 28 says in part, “A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. . . . In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations.”

At its Wednesday conference this week, the court made grant-and-transfer orders in two habeas corpus proceedings that directed Courts of Appeal to take a look at the issue Humphrey didn’t address.

In In re Kowalczyk, the court directed the First District, Division Three, Court of Appeal “to issue an opinion that addresses which constitutional provision governs the denial of bail in noncapital cases — article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution — or, in the alternative, whether these provisions can be reconciled.” Division Three had issued an order to show cause, but then dismissed the habeas petition as moot after the defendant entered a plea and was sentenced to county jail. (Here.) The defendant requested that the petition be decided anyway because it presented issues of continuing public interest, but Division Three declined, “noting that many of the issues raised in this petition were resolved in our opinion in In re Harris (2021) 71 Cal.App.5th 1085.” The Supreme Court granted review in Harris three months ago. (See here.)

Similarly, in In re O’Connor, the court told the Sixth District to issue an order to show cause “why relief should not be granted on the grounds (1) petitioner has not been charged with ‘[f]elony offenses involving acts of violence on another person, or felony sexual assault offenses on another person’ (Cal. Const., art. I, § 12, subd. (b)); and (2) if it is the case she has not been charged with any such qualifying offenses, she ‘shall be released on bail’ (id., § 12; but see id., § 28, subd. (f)(3)).” The Sixth District had summarily denied the defendant’s habeas petition.

There’s a good chance the Supreme Court will grant review again in Kowalczyk and/or O’Connor after the Courts of Appeal issue their opinions in the cases, but that’s not a certainty. (See: The Supreme Court doesn’t decide all important issues.)

Review granted in PAGA case

One week after the U.S. Supreme Court in Viking River Cruises, Inc. v. Moriana disapproved part of a 2014 California Supreme Court opinion on California’s Labor Code Private Attorneys General Act (see here), the state high court today decided to take on another PAGA case.

The court granted review in Estrada v. Royalty Carpet Mills, Inc. and it limited the issue to: “Do trial courts have inherent authority to ensure that claims under the Private Attorneys General Act (Lab. Code, § 2698 et seq.) will be manageable at trial, and to strike or narrow such claims if they cannot be managed?”

In a published opinion, the Fourth District, Division Three, Court of Appeal disagreed with the Second District, Division Four, decision in Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746. Division Three concluded that “a court cannot strike a PAGA claim based on manageability.”

The Supreme Court denied review and depublication in Wesson.


Another review-granted PAGA case — Turrieta v. Lyft, Inc. — is pending. (See here.)

Settlement of individual claims doesn’t kill PAGA lawsuits

Supreme Court avoids arbitration issue by finding a claim is not proper to resolve in any forum

Supreme Court will answer Ninth Circuit’s take-home Covid questions

The Supreme Court today agreed to answer these questions posed by the Ninth Circuit in Kuciemba v. Victory Woodworks:

“1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer? 2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?”

More about the case here.

The Supreme Court granted another Ninth Circuit request for assistance just last week.

Including Kuciemba, the court has now granted 16 of the last 17 Ninth Circuit requests for help in resolving questions of California law, dating back to July 2018.  The lone denial during that time was in October 2019.


Rule 8.548

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

Former Justice Cuéllar chosen for foreign policy advisory board

U.S. Secretary of State Antony Blinken has chosen former Supreme Court Justice Mariano-Florentino Cuéllar to serve on the State Department’s Foreign Affairs Policy Board. A Department news release says that the board, established in 2011, “has provided independent advice on the conduct of U.S. foreign policy and diplomacy, consistent with each Secretary of State and administration’s evolving priorities for it” and that the 19-member board “will focus on the issues of increasing importance to the lives and livelihoods of Americans in the decade ahead, including cybersecurity and emerging technologies, climate and energy, international economics, global health, and strategic competition with the People’s Republic of China.”

Cuéllar, who left the court eight months ago to become president of the Carnegie Endowment for International Peace, has written about artificial intelligence (see, e.g., here and here).

Supreme Court harmony is because of process and personnel

David Carrillo and Stephen Duvernay write in today’s Daily Journal why they think California’s Supreme Court over the last 10 years or so has issued unanimous opinions much more often than the U.S. Supreme Court — “The secret to SCOCA’s consensus.” (Related: last month, the California court had its first 4-3 split in almost two years.)

Carrillo and Duvernay say the court’s “current high . . . unanimity rate is explained mostly by its unique frontloaded case-deciding procedure, with X factors of leadership personality and consensus culture.”

The procedure they refer to is an intensive, collaborative preparation of a draft opinion (called a calendar memorandum) before a case is scheduled for oral argument. That process is largely a function of the constitutional and statutory rule requiring a decision within 90 days of a case’s submission, which usually occurs immediately after the case is argued. (See here.)

The authors also point to “the Chief Justice’s leadership style and the receptiveness of the other six justices to a consensus culture.” “The soft power of being first among equals is the secret sauce,” they conclude.

The authors do allow that “the federal high court confronts divisive national issues that may simply be harder to resolve, suggesting that comparing respective consensus rates is an apples-to-oranges comparison, and that if we controlled for those cases the consensus rates might be closer.”


“Everyone gets along on the California Supreme Court”

Law reviews focus on the Supreme Court, with differing views about court consensus

“California Supreme Court consistently unanimous, even in contentious cases”

New Historical Society Review is available

The Spring/Summer 2022 Review of the California Supreme Court Historical Society has reached mailboxes and is available online.  (I’m on the Society’s board.)

Here are the contents:

Supreme Court will decide appeal timeliness issue [Updated]

At the Supreme Court’s conference yesterday, a double one, actions of note included:

  • Supreme Court will answer Ninth Circuit products failure-to-warn questions
  • Justice Liu separate statements on parole, sentencing rights.
  • Time to appeal. The court granted review in Meinhardt v. City of Sunnyvale and limited the issue to: “Did the Court of Appeal correctly dismiss the appeal as untimely?” Justice Patricia Guerrero is recused because she concurred in the Fourth District, Division One, Court of Appeal published opinion now under review. Division One held a notice of appeal was two days late because the time to appeal started when the superior court entered an order denying a petition for writ of administrative mandamus, not on the later filing of a judgment that restated what was in the order. The appellate court relied in part on the Supreme Court’s decision in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, which concerned appealability, not timeliness (see here). It disagreed with the Fifth District’s opinion in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 368, fn. 2, review denied. [June 17 update: Horvitz & Levy partner Mitchell Tilner and then-appellate fellow Anna Goodman wrote an article for Los Angeles Lawyer on a similar topic: ” ‘One shot’ appeals.”]
  • Housing discrimination. The court denied review in Crenshaw Subway Coalition v. City of Los Angeles, but it depublished the partially published opinion of the Second District, Division Two. A neighborhood advocacy group unsuccessfully challenged approval of a project the group said would gentrify an area and push low-income residents, who are mostly Black and Latinx, out of their homes. Relying on a 2015 U.S. Supreme Court decision, Division Two held the disparate impact claim could not be stated — “recognizing the group’s gentrification theory would obligate the City to ‘use[ ] and consider[ ]’ race in making local planning decisions, and thus the group’s gentrification theory is not cognizable under the [federal] Fair Housing Act (and, by extension, the [California] FEHA).” In dismissing the fair housing claims, the superior court had relied on the opinion in AIDS Healthcare Foundation v. City of Los Angeles, which was itself later depublished (see here).
  • Speedy trials and the pandemic. The court denied review in Hernandez-Valenzuela v. Superior Court, but Justice Goodwin Liu recorded a vote to grant. The First District, Division Three, 2-1 published opinion rejected two defendants’ claims that their statutory speedy trial rights were violated, the majority concluding, “The District Attorney adequately showed respondent court’s backlog resulting in the delay of petitioners’ trials was attributable to exceptional circumstances connected to the COVID-19 pandemic, not chronic conditions in respondent court.” The dissenter said she was “confounded by [the superior court’s] failure to try more [felony trials for in-custody defendants] after fully reopening in June 2021.” Because Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused (probably because they are, respectively, the chair and a member of the Judicial Council, which issued pertinent jury-trial-suspension orders during the pandemic), the denial of review was by a four-justice minimum.
  • Youth offender parole. Over another Justice Liu recorded dissenting vote, the court denied review of the Sixth District’s unpublished opinion in People v. Fonseca, which rejected an equal protection challenge to a statute making youth offender parole hearings unavailable for defendants sentenced to life without parole for offenses committed between the ages of 18 and 25. It’s an issue that Justice Liu has shown a continuing interest in. (See here and here.)
  • Trial pause and the pandemic. The court denied review in People v. Breceda, where the Fourth District, Division Three, published opinion concluded the defendant’s due process rights were not violated by a 72-day pause in his murder trial, a hiatus caused by three ill jurors and then statewide and local orders suspending jury trials because of the Covid pandemic. As in Hernandez-Valenzuela (see above), the Chief Justice and Justice Corrigan were recused.
  • More masked witnesses. As it did in April (see here), the court denied review in a case where a criminal defendant unsuccessfully claimed his constitutional confrontation rights were violated by the superior court requiring witnesses to wear masks because of the Covid pandemic. This week’s case was People v. Edwards, where the Second District, Division Eight, issued a brief published opinion.
  • Criminal case grant-and-holds. There were 11 criminal case grant-and-holds: five more waiting for a decision in People v. Strong (see here), which was argued three weeks ago; two more waiting for People v. Curiel (see here); one more holding for People v. Delgadillo (see here); one more holding for People v. Espinoza (see here); one more holding for In re Vaquera (see here); and one holding for the finality of the last month’s 4-3 opinion in People v. Padilla (see here).

Justice Liu separate statements on parole, sentencing rights

When the Supreme Court yesterday denied review in In re Flores and a depublication request in People v. Flores (cases involving two different people), Justice Goodwin Liu filed separate statements in both, dissenting in the former and concurring in the latter.

In In re Flores, a Proposition 57 case, the Third District Court of Appeal unpublished opinion held determinately sentenced prisoners do not have a right to in-person parole hearings. Justice Liu writes he doubts the denial of such hearings “comports with due process,” and he explains his doubts at length, including criticism of the Fourth District, Division One, decision in In re Kavanaugh (2021) 61 Cal.App.5th 320, on which the Flores court relied. Without a noted dissent, the Supreme Court denied review and a depublication request in Kavanaugh. Flores was released on parole after filing his habeas corpus petition, but Justice Liu says that fact “demonstrates that this is an issue capable of recurring yet evading review.” Because of that and because “thousands of Proposition 57-eligible inmates remain in prison,” Liu says the issue is one of “statewide importance” and would hear the case.

The First District, Division Three, partially published opinion in People v. Flores found it harmless that a superior court imposed an upper term sentence based on aggravating circumstances that had been found by the superior court instead of a jury. Justice Liu says a recent amendment of the applicable sentencing statute — Senate Bill 567 — requires, “in an appropriate case,” revisiting two Supreme Court cases that interpreted the statute before its amendment. The “appropriate case” might be the Fourth District, Division One, opinion in People v. Lopez (2022) 78 Cal.App.5th 459, which disagreed with Flores and which Liu identifies in his concurring statement. Then again, Lopez might not be an appropriate case — the defendant there prevailed on the sentencing issue and filed a petition for review only to exhaust state remedies (see rule 8.508). The Attorney General still has a few days left to file his own petition for review in Lopez.

In 2015, Justice Liu revived a long-dormant practice of issuing separate statements upon the court’s denial of review, and he has done so on a number of occasions since then.  (See here.)

SCOTUS disapproves California Supreme Court decision

In Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court today finds a rule stated by the California Supreme Court eight years ago is preempted by the Federal Arbitration Act.

Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, cert. denied, CLS Transp. Los Angeles, LLC v. Iskanian (2015) 574 U.S. 1121, held that an arbitration agreement requiring an employee to waive the right to bring in any forum representative actions under California’s Labor Code Private Attorneys General Act is invalid as contrary to public policy. The opinion also barred requiring arbitration of just an employee’s individual PAGA claim as interfering with PAGA’s goals.

It is the latter holding that the Viking River Cruises decision abrogates: “the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.”

Horvitz & Levy filed an amicus curiae brief in Iskanian and, in Viking River Cruises, it filed an amicus brief in support of certiorari and also an amicus brief on the merits.


California Supreme Court addresses class action and representative action waivers in Iskanian

Despite cert. denial, Supreme Court’s Iskanian opinion could still get SCOTUS review

SCOTUS will indirectly review Supreme Court arbitration opinion

Supreme Court will answer Ninth Circuit products failure-to-warn questions

The Supreme Court today granted the Ninth Circuit’s request to answer these questions in Himes v. Somatics, LLC:

“Under California law, in a claim against a manufacturer of a medical product for a failure to warn of a risk, is the plaintiff required to show that a stronger risk warning would have altered the physician’s decision to prescribe the product? Or may the plaintiff establish causation by showing that the physician would have communicated the stronger risk warnings to the plaintiff, either in their patient consent disclosures or otherwise, and a prudent person in the patient’s position would have declined the treatment after receiving the stronger risk warning?”

The case involves a claim that the defendant manufacturer’s “misbranding and failure to warn about certain risks of its electroconvulsive therapy (‘ECT’) device caused” injuries.

The Supreme Court has now granted 15 of the last 16 Ninth Circuit requests for help in resolving questions of California law, dating back to July 2018.  The lone denial during that time was in October 2019.

One other request is pending. (See here.)


Rule 8.548

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

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