Here are some of the highlights from yesterday’s Supreme Court conference:

Dog attack. The court granted review, for a second time, in Long v. City of Exeter. The Second District, Division Six, Court of Appeal’s unpublished opinion reversed, also for a second time, a multi-million dollar award against a city and city employees for a former police dog’s attack that killed one person and severely injured another. The city had sold the dog to the dog’s officer-handler when that officer left the police force. In its first opinion, Division Six said the defendants owed the victims no duty to warn the former officer about how to care for the dog because the defendants had no special relationship with the victims or the former officer. It also concluded that, special relationship or not, the Rowland v. Christian (1968) 69 Cal.2d 108 factors didn’t support finding a duty either. The Supreme Court granted review of that decision and transferred the case back to the appellate court with directions to “reconsider the cause in light of Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1015 [‘The assertion that a special relationship is required misapprehends our case law’].” (See here; regarding Kuciemba, see here.) Division Six held on remand that “Kuciemba does not mandate that we recognize a duty of care under these circumstances in the absence of a special relationship between the parties.” This case might be one of those rare Supreme Court rescue missions.

[October 25 update: Here is the issue as summarized by court staff — “If a police department elects to sell a patrol canine that the department has trained to attack people, do the department officials responsible for oversight of the patrol canine program have a duty to warn the purchaser about precautions that must be taken in order to prevent the animal from killing or injuring members of the public?”]

Late arbitration fees grant-and-holdCosta-Fleeson v. Americor Funding, an employment case, is another grant-and-hold for Hohenshelt v. Superior Court (see here), in which the court is expected to address whether the Federal Arbitration Act preempts state statutes prescribing the procedures for paying arbitration fees and providing for forfeiture of the right to arbitrate if timely payment is not made by the party who drafted the arbitration agreement and who is required to pay the fees. The Fourth District, Division Three, unpublished opinion found no preemption under an uncommon factual scenario. It was the plaintiff-employee who demanded arbitration and, when the defendant-employer who had drafted the arbitration agreement didn’t timely pay the arbitration fees, withdrew from the arbitration and was awarded attorney fees and costs of over $175,000. Division Three affirmed the award, finding the employer “materially breached the Agreement” because of the fee-payment failure.

Murder resentencing dissenting votes. The court denied review in People v. Aroche, but Justices Goodwin Liu and Kelli Evans recorded dissenting votes. It’s another resentencing case under Senate Bill 1437, 2018 legislation that limited accomplice liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine. The Sixth District’s unpublished opinion affirmed the denial of a resentencing petition in which defendant claimed a jury instruction at his pre-SB1437 trial erroneously permitted the jury to find a lying-in-wait special circumstance without finding he had the required intent to kill. The appellate court held that, if the instruction was faulty, it “constituted legal error at the time it was given” and an SB 1437 petition “is not a second appeal to raise claims of trial error under the law applicable then as now.” Justices Liu and Evans have dissented before from denials of review in SB 1437 cases. (See here and here.)

Batson legislation violation. The court also declined to hear People v. Caparrotta. Anomalously, it was the criminal defendant’s counsel who was found to have engaged in discrimination in peremptorily challenging prospective jurors — two white females — in violation of Code of Civil Procedure section 231.7 (see here, here, and here). Affirming a conviction for elder abuse by assault, the Fourth District, Division One, published opinion held the superior court used the correct legal standard in sustaining the prosecution’s objection to the peremptory challenges. It applied “a broad interpretation of the statute disallowing any peremptory challenge that is exercised even in part for a conclusively invalid reason.”

Firearm enhancement habeas relief. Construing an Attorney General concession as a waiver of the need for an order to show cause in the pro per’s habeas corpus petition in In re Gage, the court ordered a superior court “to consider whether to strike the firearm enhancements attached to counts 5 and 6 pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682). If the superior court strikes the firearm enhancements, it shall consider whether to modify petitioner’s existing sentence, or to instead resentence petitioner.” (Link added.)

Criminal case grant-and-holds. There were five criminal case grant-and-holds:  one more waiting for a decision in  People v. Emanuel (see here), one more holding for People v. Fletcher (see here), and three more on hold for People v. Rhodius (see here).

Grant-and-hold dispositions (see here).  The court removed 39 cases from its docket that had been grant-and-holds for one of four different decisions: