A three-case February calendar [Updated]

The Supreme Court today announced it would hear arguments in only three cases next month. That continues a string of light calendars. There haven’t been more than five arguments in a month since the court heard seven cases last June. Yesterday, the court heard just two arguments on its January calendar.

The small number of oral arguments might be due in part to Justice Mariano-Florentino Cuéllar’s retirement at the end of October.  He did not sit on any arguments after September.  Vacancies hamper the court because, among other things, the court typically delays scheduling arguments in cases where the six permanent justices are tentatively evenly divided.

Like all calendars since April 2020, and for the foreseeable future, the February calendar will be remote and based in San Francisco.  (See herehereherehere, and here.)  The arguments will be live streamed, as all arguments have been since May 2016.

Because of the vacancy caused by Justice Cuéllar’s retirement, a Court of Appeal justice will be sitting on each of the February cases.  The pro tems have yet to be chosen and will be assigned on a mostly alphabetical basis.

On February 2, the court will hear the following cases (with the issue presented as summarized by court staff or limited by the court itself):

Conservatorship of the Person and Estate of Eric B.: Does equal protection require that persons subject to a conservatorship under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5350) have the same right to invoke the statutory privilege not to testify as persons subject to involuntary commitments under Penal Code section 1026.5 after a finding of not guilty by reason of insanity? The court granted review in June 2020. (More about the case here.)

In re Christopher L.: When it granted review in February 2021, the court limited review to: “Is it structural error, and thus reversible per se, for a juvenile court to proceed with jurisdiction and disposition hearings without an incarcerated parent’s presence and without appointing the parent an attorney?” (More about the case here.)

People v. Bloom: This is an automatic direct appeal from a January 2001 judgment of death.  The court’s website does not list issues for death penalty appeals.  Counsel was appointed in September 2003. Initial briefing was completed in May 2014.

[January 21 update: Pro tems announced for February calendar.]

Sexual assault lawsuit not barred by mediation agreement not to disparage

Resolving what it calls “an ordinary question of contract interpretation that the Legislature likely did not contemplate,” the Supreme Court in Olson v. Doe today holds that two parties’ agreement “not to disparage one another,” made in settling a restraining order proceeding, did not prevent one party from later suing the other for sexual assault and harassment. The court concludes the defendant in the subsequent litigation could not counter sue for breach of the agreement because the plaintiff “had no obligation under the contract to refrain from making disparaging statements in litigation.”

The court’s unanimous opinion by Justice Goodwin Liu says the nondisparagement agreement should not be read so broadly as to preclude a lawsuit because, among other things, the agreement doesn’t include “terms providing any release from liability or waiver of claims.” The court also finds it significant that the agreement was made during an expedited and limited restraining order proceeding, which is “not intended to provide a forum for a global resolution of a petitioner’s potential claims related to the underlying conduct at issue.”

The opinion does not decide whether the litigation privilege of Civil Code section 47, subdivision (b), “also poses a barrier” to the cross-complaint for breach of contract.

The court reverses the Second District, Division Eight, which held in an unpublished opinion that the litigation privilege protected the plaintiff’s filing of an administrative complaint with federal and state housing agencies, but not her filing of a lawsuit.

Supreme Court expands recoverable trial costs

In Segal v. ASICS America Corp., the Supreme Court today holds that superior courts have the discretion, but not the duty, to allow a prevailing party to recover the cost of preparing photocopies of exhibits and demonstrative aids that end up not being used at trial.

The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye is one of statutory construction. It says that, for costs of the copies and aids to be recoverable as a matter of right under one term of Code of Civil Procedure section 1033.5, it’s necessary that “the items were (in fact) reasonably helpful to aid the trier of fact (a judge or jury in ruling on a factual issue).” Another section 1033.5 term, however, allows the costs to be recovered at the superior court’s discretion “when such materials are reasonably necessary to the conduct of litigation and reasonable in amount.”

The court affirms the published opinion of the Second District, Division Four, Court of Appeal, “although on slightly narrower grounds,” the Supreme Court says, because Division Four held the costs were recoverable both as a matter of right and at the superior court’s discretion. It disapproves a 2006 decision by the Second District, Division Seven, but says Division Four’s opinion was consistent with a 2007 Second District, Division Eight, opinion and a 1994 First District, Division Three opinion.

“Why California needs a Latino state supreme court justice”

Raul Reyes, an immigration attorney and member of the USA Today Board of Contributors, writes in The Hill that Governor Gavin Newsom’s “heel-dragging” on appointing a replacement for Justice Mariano-Florentino Cuéllar, who announced his retirement from the Supreme Court 118 days ago and left the court at the end of October, is “perplexing.” Reyes says, “It’s time for the governor to announce his pick, and he should appoint a qualified Latino.”

Cuéllar was the court’s fourth Latino justice. There have been no Latina justices on the state’s Supreme Court.

He argues that the state’s “large Latino population deserves representation on the court, especially since the court rules on issues that directly impact their lives.  Having a Latino on California’s supreme court would send a strong message of inclusion and further demonstrate Newsom’s commitment to diversity.”


“Governor likely to name Latina to high court, sources say”

“California is ready for its ‘Sotomayor moment’ ”

“Newsom, make history, appoint a Latina to the Supreme Court”

Litigation privilege/sexual assault, costs opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Olson v. Doe and Segal v. ASICS America Corp. (Briefs here; oral argument videos here and here.)

They will be the first opinions in cases argued in November. Opinions in the other three November cases will probably file by January 31.

Pro tem justices are sitting in place of Justice Mariano-Florentino Cuéllar, who left the court at the end of October.

In Olson v. Doe, the court is expected to decide (1) Does the litigation privilege of Civil Code section 47, subdivision (b), apply to contract claims, and if so, under what circumstances? and (2) Does an agreement following mediation between the parties in an action for a temporary restraining order, in which they agree not to disparage each other, bar a later unlimited civil lawsuit arising from the same alleged sexual violence?  The court granted review in November 2019. (See more about the case here.) Second District, Division Five, Justice Justice Carl Moor is the pro tem.

The court limited the issue in Segal to:  “May a party recover costs for preparing multiple sets of trial exhibits and closing slides that were not used at trial?”  The court granted review in October 2020. (See more about the case here.) Fourth District, Division One, Justice Joan Irion is the pro tem.

The opinions can be viewed tomorrow starting at 10:00 a.m.

Still shorthanded court to hear arguments Wednesday; no conference this week

It’s been 116 days since Justice Mariano-Florentino Cuéllar announced his retirement and 71 days since he left the court. (See the clock on the SCOCAblog website.) And Governor Gavin Newsom has yet to name a replacement, let alone have the new justice confirmed and sworn in.

So the court on Wednesday morning will hear its two-argument January calendar with pro tem justices.

As usual, the arguments will be live streamed.

Because of the oral arguments, the court will not be conferencing this week and there will be a double conference next week.

Supreme Court agrees to hear three cases

At the Supreme Court’s first conference of 2022, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, actions of note included:

  • Medicare Preemption: The court granted review of an unpublished opinion, in Quishenberry v. UnitedHealthcare, Inc., where the Second District, Division Seven, Court of Appeal held that a preemption clause in federal Medicare statutes preempted an action for negligence, elder abuse, and wrongful death against a private Medicare Advantage health care plan insurer and the plan’s health care provider. When a Medicare beneficiary elects an Advantage plan, the government pays the plan’s administrator to provide all Medicare benefits for that beneficiary. The plaintiff claims his father died after being prematurely discharged from a skilled nursing facility. Division Seven disagreed with the Fifth District opinion in Yarick v. PacifiCare of California (2009) 179 Cal.App.4th 1158 and the Fourth District, Division Three, opinion in Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437. It agreed with the Second District, Division Two, decision in Roberts v. United Healthcare Services, Inc. (2016) 2 Cal.App.5th 132. The Supreme Court denied review in Yarick and Cotton, with Justice Kathryn Werdegar recording a vote to grant in Cotton. There was no petition for review in Roberts.
  • PAGA Intervention: The court agreed to hear Turrieta v. Lyft, Inc., and it limited the issue to: “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the State?” The Second District, Division Four, published opinion said “no.” Five weeks ago, in Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 122-123, the First District, Division Four, disagreed with the Turrieta opinion. Horvitz & Levy is Lyft’s appellate counsel in Turrieta.
  • Competency Restoration: The court also granted review in Rodriguez v. Superior Court. The Sixth District’s published opinion rejected the claims of a defendant who had been found not competent to stand trial that the time had passed for a competency restoration hearing and that criminal cases against him should therefore be dismissed. It concluded the Legislature “intended the two-year [competency commitment] period [limit] to cover only the time the defendant actually receives treatment to restore his or her competence, not to the entire period before the trial court’s approval of the certification of restoration to competence.” The Sixth District “decline[d] to adopt [the] reasoning” of the First District, Division Three, decision in People v. Carr (2021) 59 Cal.App.5th 1136. There was no petition for review in Carr, but the Supreme Court denied a depublication request by the San Diego District Attorney.
  • Recorded Vote — Youthful Offender Parole: The court denied review in People v. Sanchez-Gomez, but Justice Goodwin Liu recorded a vote to grant. In an unpublished opinion, the First District, Division Three, rejected an argument by a defendant, who was sentenced to life without parole for a murder committed when he was 24, that a statute denying him a youth offender parole hearing violates equal protection because an LWOP convict who was under 18 at the time of the crime is allowed such hearings. There were a bunch of other issues also decided and the recorded vote is unexplained, so the reason for Justice Liu’s dissent is not certain, but he has shown a recurring interest in youth offender parole ineligibility issues. (See here.)
  • Recorded Vote: Justice Liu also recorded a dissenting vote from the denial of review in In re Clarke. As in Sanchez-Gomez (above), the vote is probably related to an unsuccessful claim that a statute denying a youth offender parole hearing denies equal protection of the law. Details are sparse because the Second District, Division Three, in a brief order, summarily denied the part of a habeas corpus petition relating to that issue.
  • Pro Per Habeas OSC: In In re Stone, a pro per’s habeas corpus petition, the court issued an order to show cause in the superior court “why petitioner is not entitled to relief on the grounds staff at Kern Valley State Prison pose an ongoing threat of violence to, and retaliation against, petitioner in violation of the Eighth Amendment to the United States Constitution.”
  • New-Legislation Grant-and-Transfers: The court granted review and transferred six more cases back to the Courts of Appeal for reconsideration in light of new legislation: one more for Senate Bill 567, one for SB 567 and Assembly Bill 333, one for AB 333 and Assembly Bill 518, one more for just AB 518, one more for Assembly Bill 124, and one for AB 124, SB 567, Senate Bill 483, and Assembly Bill 1869.
  • Disposal of grant-and-holds: The court continued to shed a bunch of criminal grant-and-hold cases. There were 58 cases dumped last week and 80 the week before. This week there were 59: 27 more cases that had been grant-and-holds for People v. Lopez — which was transferred in November to the Court of Appeal for reconsideration in light of new Senate Bill 775 (see here and here) — were themselves transferred for the same reason. Review was dismissed in 32 cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952. By our count, there are 136 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)
  • Grant-and-holds: There were seven criminal case grant-and-holds: four more holding for a decision in People v. Strong (see here), one more holding for In re Vaquera (see here), one more holding for People v. Delgadillo (see here), and one holding for People v. Prudholme (see here).

Divided Supreme Court affirms death penalty with dissent on Miranda issue

A 5-2 Supreme Court today affirms the death sentence in People v. Johnson for the 1996 murder of a Ventura County sheriff’s deputy. The justices disagree whether the superior court properly admitted incriminating statements the defendant made to a psychiatrist retained by the district attorney’s office. The two spoke in a hospital emergency room where the defendant was being treated for a gunshot wound soon after the murder and after the defendant had more than once invoked his Miranda rights to remain silent and to have an attorney.

The 133-page majority opinion by Justice Joshua Groban says the “the issue is close” and the court acknowledges being “troubled by . . . law enforcement conduct” in committing “multiple clear violations of Miranda” before the defendant talked to the psychiatrist: “law enforcement officials had, within the previous three hours, twice contacted defendant about his willingness to provide a statement, impermissibly interviewed him, and angrily confronted him about [the deputy’s] murder (after defendant had invoked counsel to the same officer).” However, the court holds the “defendant initiated the subsequent conversation with [the psychiatrist] and did so with a knowing and voluntary waiver” of his Miranda rights.

Justice Goodwin Liu, joined by pro tem Justice Luis Lavin, writes a 21-page dissent. He asserts that the defendant’s initiation of the conversation “was the product of the multiple constitutional violations earlier that night, including two violations by [the psychiatrist] himself” and was “the culmination of a continuous series of unconstitutional law enforcement tactics intended to get [the defendant] to talk.” He says that the “tactic [of] sending in a medical professional as an agent for the prosecution . . . is one of the oldest in the book.”

As is normal in direct and automatic death penalty appeals where the court cannot narrow the issues, there are a number of other arguments addressed, none of which prevail, including prosecutorial misconduct claims. The court does find improper actions by the prosecutor, like a statement in opposition to a new trial motion about a defense expert’s “effeminate mannerisms” that the court labels “by any measure, offensive and inappropriate,” but concludes the misconduct was not prejudicial because most of it occurred outside the jury’s presence.

Limitations on early parole upheld

In In re Mohammad, the Supreme Court today validates regulations narrowly interpreting a 2016 initiative that allows early parole consideration for nonviolent felons. Proposition 57 amended the state constitution to provide, “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” The now-approved regulations make early parole off limits to an inmate who is incarcerated for both nonviolent and violent felonies.

The court’s opinion is by Chief Justice Tani Cantil-Sakauye. Quoted a year ago as saying, “I haven’t seen clear language in an initiative, ever” (see here), the Chief Justice writes that “the constitutional text is ambiguous” regarding the case before the court, but gives deference to the approach of the regulations’ drafter — the Department of Corrections and Rehabilitation — as “reasonably necessary to effectuate the purpose of Proposition 57.”

The opinion says that requiring early parole consideration for prisoners convicted of nonviolent felonies regardless of whether they’ve also been convicted of violent felonies “is a plausible reading” of Prop. 57, but “language that seems plain when considered in isolation may be ambiguous when examined within the context of the scheme it implements.”

Justice Goodwin Liu writes a concurring opinion for himself and Justice Leondra Kruger, who both signed the court’s opinion. He says there are a number of “[l]urking” questions that are not ripe for decision in the present case, including whether early parole consideration is available to an inmate who is serving a nonviolent felony sentence after having completed serving a sentence for a violent felony.

The court reverses the published opinion of the Second District, Division Five, Court of Appeal. The Supreme Court notes there are four grant-and-hold published opinions that disagreed with Division Five: 2021 decisions by the Fourth District, Division One; the Sixth District; the Fourth District, Division Three; and the Third District. It also disapproves 2021 opinions by the Fourth District, Division One, and the Third District.


Too many sex offenders are categorically barred from parole consideration

Another Supreme Court criticism of Jerry Brown?

“How ‘free state’ California wrote slavery and white supremacy into its law books”

Veteran legal affairs reporter Bob Egelko has a piece in the San Francisco Chronicle about the California Supreme Court’s leading role in preserving white supremacy during the state’s early history. He writes that the court’s “rulings and the racial climate from which they arose are the subject of a state task force, the first of its kind in the nation, established to examine the history of slavery in California and consider reparations for African Americans, particularly those whose ancestors were slaves.” (See here and here.)

The article includes an interview with former Chief Justice Ronald George, who is quoted as saying that societal currents reflected in the court’s racist decisions are not just relics of the past: “It’s unfortunate to see much of that (attitude) emerge these days, xenophobia, especially when there’s an economic downturn.”

In addition to his long newspaper career, Egelko is a co-author of the court history, “Constitutional Governance and Judicial Power.”

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