Here are some of the notable actions at yesterday’s Supreme Court conference, a double one:
Supreme Court won’t hear Ninth-Circuit-referred sexual assault case against Uber
Solar energy rates. The court will hear the big-deal case of Center for Biological Diversity v. Public Utilities Commission. It concerns what the First District, Division Three, Court of Appeal described in its published opinion as a change to California’s decades-long “net energy metering . . . tariff to encourage public utility customers to install renewable energy systems,” a tariff that, “[i]n practical effect . . . requires utilities to purchase excess electricity exported by renewable systems to the electrical grid at the price paid by a utility’s customers for electricity.” Responding to utility complaints that the tariff “overcompensates owners of renewable systems for their exported energy and thereby raises the cost of electricity for customers without such systems” and to Public and Utilities Code section 2827.1, the PUC “significantly reduce[d] the price utilities pay for customer-generated power.” (See Sammy Roth’s December column in the Los Angeles Times for a more detailed look at what’s involved.) Environmental groups filed the writ petition now under review to challenge the PUC’s action, claiming it violates the statute because “it does not take account of the social benefits of customer-generated power, improperly favors the interests of utility customers who do not own renewable systems, fails to promote sustainable growth of renewable energy, and omits alternatives to promote the growth of renewable systems among customers in disadvantaged communities.” Division Three rejected the challenge, applying a standard of review strongly deferential to PUC decisions and concluding “the successor tariff adequately serves the various — albeit sometimes inconsistent — objectives of section 2827.1.”
[April 12 update. The issues as summarized by court staff are: “(1) What standard of review applies to judicial review of a Public Utilities Commission decision interpreting provisions of the Public Utilities Code? (2) Did the Public Utilities Commission proceed in the manner required by law, specifically Public Utilities Code section 2827.1, subdivision (b)(1) and (3), when it adopted the successor tariff in Decision Revising Net Energy Metering Tariff and Subtariffs (2022) Cal.P.U.C. Dec. No. D.22-12-056?”]
Lawsuit dismissal and res judicata. The court also granted review in Doe v. Marysville Joint Unified School District, where the Third District’s 2-1 published opinion affirmed the dismissal of a lawsuit claiming sexual misconduct by an elementary school counselor. The appellate court held the voluntary dismissal of an earlier federal court action — after the voluntary dismissal of an even earlier state court action — was res judicata. Disagreeing with the Sixth District’s decision in Gray v. La Salle Bank (2023) 95 Cal.App.5th 932, the majority reasoned, “Because a second voluntary dismissal in federal court is claim preclusive in a federal question case, the plaintiff cannot strip out the federal claims and file the action in state court solely as a California law action.” The dissent said, “The problem with importing res judicata principles here is it applies Federal Rules of Civil Procedure, rule 41 too broadly, ‘clos[ing]the courthouse doors to an otherwise proper litigant.’ ” The Supreme Court denied review in Gray four months ago.
[April 12 update. The issues as summarized by court staff are: “(1) Did the plaintiffs’ second voluntary dismissal of their federal court action preclude a subsequent state court action based on the same claims? (2) Did the defendant’s assertion of sovereign immunity over plaintiffs’ state law claims in federal court divest that court of subject matter jurisdiction over those claims?”]
[April 13 update. I should have noted that Horvitz & Levy is Supreme Court counsel for the school district in the Doe case.]
State Bar Court didn’t take the hint. Put this one in the Supreme Court’s “Aw, c’mon man” file. The court in Everett on Discipline ordered the State Bar Court’s Review Department to file as timely an attorney’s petition for review and other documents. That’s not a big deal in itself, but consider what came before — the order was responding to a second Review Department ruling that the documents were untimely, and there was a second ruling only because, after the first ruling, the Supreme Court had remanded the matter with a statement that “the filings . . . appear on their face to have been timely filed.”
Respondeat superior depublication. The court granted a request to depublish the Fourth District, Division Three, opinion in Adams v. Department of Corrections and Rehabilitation. There was no petition for review. Division Three reversed a summary judgment for the defendant Department in a case arising from a prison guard’s reckless pursuit of a vehicle on his way to work that caused severe injuries. The appellate court found there were triable issues of fact whether the guard was acting within the scope of his employment. It said there was evidence to support two competing theories — that the guard “was engaged in law enforcement functions as an ‘outgrowth’ of his employment” or that “he engaged for purely personal reasons in a ‘road rage incident.’ ” Depublication orders have been relatively rare of late.
Murder resentencing dissenting votes. The court denied review in People v. Collins and People v. Walker over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. Unpublished opinions in both Collins and Walker, issued by the same panel in the Fourth District, Division Two, affirmed the denials of resentencing petitions under Senate Bill 1437, 2018 legislation that limited criminal liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine. The defendants in both cases were convicted of the same robbery and murder. In Walker, Division Two found “substantial evidence supports the trial court’s findings that Walker was a major participant in the robbery who acted with reckless indifference for the life of the victim” and that “it would have made no difference” if the trial court had been required to consider Walker’s age at the time of the offense (he was 20). The appellate court came to the same conclusions in Collins, where the defendant was 22 years old when the victim was killed. SB 1437 is a regular staple of the Supreme Court’s docket. (See, e.g., here and here.)
Discovery sanctions grant-and-hold. Agnone v. Agnone is a grant-and-hold for City of Los Angeles v. PricewaterhouseCoopers, in which the court in January 2023 agreed to decide whether a court’s authority to impose monetary sanctions for misuse of the discovery process is limited to circumstances expressly delineated in a method-specific provision of the Civil Discovery Act, or whether courts have independent authority to impose monetary sanctions for such discovery misconduct, including under Code of Civil Procedure sections 2023.010 and 2023.030. The Pricewaterhouse case involves a $2,500,000 sanction. In Agnone, the Second District, Division Three, unpublished opinion reversed a sanction of under $10,000 against a non-party witness in a divorce case, a sanction that was imposed after the case settled and the sanctions motion was withdrawn.
COVID insurance. The court declined to hear San Jose Sharks v. Superior Court. The Sixth District’s published opinion held that the National Hockey League and many of its teams could not claim coverage under commercial insurance policies for losses incurred because of the COVID-19 pandemic. The Sixth District relied on a contamination exclusion in the policies. A year ago, the hockey plaintiffs had unsuccessfully petitioned to transfer the writ proceeding to the Supreme Court before a Court of Appeal decision. (See here and here.) The Supreme Court has agreed to decide two COVID insurance cases — Another Planet Entertainment v. Vigilant Insurance Co. (see here), which was argued last month (video here) and John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. — and has granted-and-held others. (See here, here, here, here, here, and here.) But it has also denied review and/or depublication in cases, like San Jose Sharks, that rejected COVID insurance claims. (See here.)
Disclosure of drone videos. The court denied review in Castañares v. Superior Court after a Fourth District, Division One, published opinion held a month’s worth of a police department’s videos taken by a drone were not categorically exempt from disclosure under California’s Public Records Act. Video “that is part of an investigatory file” is exempt, the appellate court held, as is video “where officers used a drone to investigate whether a violation of law was occurring or had occurred but did not create a corresponding investigatory file.” What might be disclosable, Division One said, are videos from when “a drone [is] dispatched in response to a call to service from the public wherein the use of the drone could not be considered investigatory in nature,” such as “potentially dangerous wildlife roaming the neighborhood, a
stranded motorist, a water leak.” But it left to the trial court to sort out any disagreements about into which category any particular video falls and about, even as to the last category, whether the right to obtain videos might be outweighed by the burden of redacting the videos and by privacy rights implicated in disclosure. Regarding privacy considerations, the appellate court noted, “As the drones travel en route to the various scenes, it logically follows that they would, from time to time, travel over and film private backyards, perhaps capturing pool parties, barbeques, sunbathing, or other activities that are intended to be private.” There were several amicus curiae briefs filed in Division One, which is not nearly as common in the Court of Appeal as in the Supreme Court.
Criminal case grant-and-holds. There were five criminal case grant-and-holds: one more waiting for a decision in People v. Reynoza (see here), which was argued in February; one more on hold for People v. Lynch (see here); another one waiting for People v. Patton (see here); one more holding for People v. Fletcher (see here); and one on hold for People v. Antonelli (see here).