Yesterday’s Supreme Court conference dealt with an unusually large number of cases, even for the double conference that it was. Notable actions included:

There were three multi-justice dissents from denials of review. Two included separate explanatory statements:

  1. Three votes for review, and a dissenting statement, in juvenile coerced plea case
  2. Two votes for review, and a dissenting statement, in youth-offender LWOP no-parole case

A third case concerned domestic violence torts. (See below.)

Fee failure forfeit of arbitration. The court granted review in Hohenshelt v. Superior Court, an employment retaliation case that was headed to arbitration until the defendant employer delayed paying fees to the arbitration provider. The plaintiff employee unsuccessfully sought a trial court order allowing him to withdraw from arbitration and proceed in court, but the Second District, Division Eight, Court of Appeal, in a 2-1 published opinion, granted relief based on Code of Civil Procedure section 1281.98(a)(1), applicable to employment and consumer arbitrations, that provides if “the drafting party” is required to pay arbitration fees, but doesn’t do so “within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” The arbitration provider had extended the due date, but, quoting the Second District, Division Two, decision in Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Division Eight said, “ ‘There is no escape hatch for companies that may have an arbitrator’s favor. Nor is there a hatch for an arbitrator eager to keep hold of a matter.’ ” Division Eight also rejected, as had the Gallo court, the argument that the Federal Arbitration Act preempts section 1281.98. The preemption issue is what attracted the dissent’s attention. Writing that “California law over the last few decades . . . has not been a friend of arbitration,” the dissent said, “By again putting arbitration on the chopping block, this statute invites a seventh reprimand from the Supreme Court of the United States.” There was no petition for review in Gallo.

[June 14 update: Here’s the issue as summarized by court staff — “Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.) preempt 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 such fees?”]

Coastal Commission jurisdiction. The court also agreed to hear Shear Development Co. v. California Coastal Commission. The Coastal Commission appealed to itself a county’s grant of a coastal development permit for construction of three single family homes, and it then denied the permit. An unpublished opinion by the Second District, Division Six, held the Commission’s limited appellate jurisdiction was properly invoked because the permit approved a development located in a Sensitive Coastal Resource Area. It also concluded that the Commission did not abuse its discretion in denying the development permit.

[June 14 update: Here’s the issue as summarized by court staff — “What standard of review applies to a decision by the California Coastal Commission asserting appellate jurisdiction under Public Resources Code section 30603, where such jurisdiction depends on the Coastal Commission’s disagreement with a local government’s interpretation of its local coastal program?”]

Sexual abuse evidence. The court granted review in S.M. v. Superior Court and remanded the case to the Second District, Division Five, which had summarily denied a writ petition. Division Five is directed to decide the petition on its merits. The case alleges sexual abuse of a 12-year-old at school, and the writ petition challenges a superior court ruling that would allow evidence at trial of other abuse subsequent to the subject abuse. The petition concerns Evidence Code sections 1106 and 783, and the Supreme Court’s decision in Doe v. Superior Court (2023) 15 Cal.5th 40 (see here), which concluded that a superior court ruling allowing subsequent-abuse evidence “left [the plaintiff] in danger of what [section 783] was designed to avoid — unjustified and uncircumscribed intrusion into her privacy in the immediate presence of the jury.” Here are the petition for review, the answer to the petition, and the reply to the answer.

Even more Riverside ICWA grant-and-holdsIn re C.B. and In re L.G. are two more grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See herehereherehere, and here.) The unpublished opinions in C.B. and L.G., both 2-1 decisions, held there is no such duty of inquiry when a child is taken into custody under a protective custody warrant.

Another COVID insurance grant-and-hold. Brooklyn Restaurants, Inc. v. Sentinel Insurance Co. is another grant-and-hold for John’s Grill, Inc. v. The Hartford Financial Services Group, Inc., where the court is expected to address: (1) Is a grant of coverage for property loss or damage to covered property caused by a virus rendered illusory where it is limited by a condition that makes coverage applicable only if the virus is the result of one or more of a number of listed causes? (2) Is a conditional grant of coverage for property loss or damage to covered property caused by a virus, including the cost of removal of the virus, triggered by cleaning surfaces in the covered property that are contaminated by the virus in the absence of physical alteration of the property? John’s Grill was argued last month. (Video here.) In Brooklyn Restaurants, the Fourth District, Division One, in a belatedly published opinion, held that “a unique [policy] provision, specifically covering losses attributable to a virus” made this “one of those rare cases where . . . an insured has adequately alleged a direct physical loss or damage under the subject policy, at least raising the specter of coverage under that policy.” In another COVID insurance case, Another Planet Entertainment, LLC v. Vigilant Insurance Co., the court recently ruled for the insurance carrier. (See here.)

Domestic violence tort. The court denied review in M.A. v. B.F., but Justices Liu and Evans recorded dissenting votes. In a 2-1 published opinion, the Fourth District, Division Three, framed the issue: “whether a relationship characterized in modern parlance — and by the plaintiff in this case — as ‘friends with benefits’ constitutes a dating relationship under Family Code section 6210, so as to support a tort claim for domestic violence.” (Link added.) The issue arose in a lawsuit seeking damages for domestic violence and sexual battery. The majority found substantial evidence supported the superior court finding of no dating relationship, a finding that led to a defense judgment. The dissent claimed “[t]he majority’s opinion, in effect, raises the bar for domestic violence victims by narrowly construing the definition of a ‘dating relationship.’ ”

Criminal case grant-and-holds. There were five criminal case grant-and-holds:  one more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), one more waiting for People v. Emanuel (see here), two more on hold for People v. Lopez (see here), and one more waiting for In re Hernandez (see here).

Grant-and-hold dispositions (see here). There were 31 grant-and-holds that the court dumped. This post will be updated with details later.

[Update: All 31 were holding for the March decision in People v. Hardin (2024) 15 Cal.5th 834 (see here). One was also holding for last December’s decision in People v. Rojas (2023) 15 Cal.5th 561 (see here). Of the 31, the court dismissed review in 29 and sent two back to the Courts of Appeal for reconsideration in light of the Hardin opinion. One of the review dismissals was specifically “without prejudice to any relief that may be available for claims of racial disparities in sentencing.”]