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

  • Supreme Court turns down the Ninth Circuit in Nazi painting case.
  • Arbitration. The court granted review in Fuentes v. Empire Nissan, Inc., where a 2-1 published opinion by the Second District, Division Eight, Court of Appeal enforced an arbitration agreement signed by an employee who sued her employer for discrimination and wrongful termination. Disagreeing with the First District, Division Two, opinion in Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662 (review and depublication request denied), and although noting the arbitration provision is “substantially similar” to the one the Supreme Court refused to enforce in OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111 (see here), the majority concluded the provision was enforceable even though it might be procedurally unconscionable — written in “tiny and unreadable print” and “in confusing legalese and in multiple contracts” — because it was not also substantively unconscionable. The dissent found substantive unconscionability because the “agreement with font so small as to challenge the limits of legibility implicates a lack of mutuality.” There are a number of other arbitration cases on the court’s docket — Ford Motor Warranty Cases (see here), Logan v. Country Oaks Partners, LLC (see here), Quach v. California Commerce Club (see here), Ramirez v. Charter Communications, Inc. (see here), and Zhang v. Superior Court (see here). Also, the court had granted review in another Division Eight employment arbitration case (and depublished the appellate court’s opinion) — Conyer v. Hula Media Services, LLC (see here and here) — but later dismissed review when the parties settled.
  • Arbitration grant-and-hold. Basith v. Lithia Motors, Inc. is a Second District, Division Eight, companion case to Fuentes v. Empire Nissan, Inc. (See above.) In a published opinion, the same appellate panel, interpreting “substantially the same Nissan employment arbitration contract” as in Fuentes, came to the same divided conclusions as in Fuentes — the Basith majority held “the contracts here and in Fuentes are valid and enforceable, despite their procedural unconscionability”; the dissenter simply relied on “the reasons expressed in [her] dissent in Fuentes.” The Supreme Court made Basith a grant-and-hold for Fuentes.
  • COVID insurance grant-and-hold. Showa Hospitality, LLC v. Sentinel Insurance Co. is another grant-and-hold for John’s Grill, Inc. v. The Hartford Financial Services Group, Inc., which court staff says presents these issues: “(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?” The Fourth District, Division One, unpublished opinion in Showa affirmed a judgment on the pleadings finding no insurance coverage for “a fast food casual Mexican restaurant” whose business was allegedly severely limited by government pandemic health orders. Besides Showa and John’s Grill, the Supreme Court has agreed to decide another COVID insurance case — Another Planet Entertainment v. Vigilant Insurance Co. — and it has granted-and-held three others. (See here, here, here, and here.) But it has also denied review and/or depublication in others that rejected COVID insurance claims. (See here.)
  • Defamation by Congress member. The court denied review in Collins v. Waters, where the Second District, Division Eight, in a published opinion, reversed the dismissal — on an anti-SLAPP motion — of a defamation lawsuit against Congresswoman Maxine Waters filed by her 2020 election opponent, who alleged Waters falsely claimed he had been dishonorably discharged from the Navy. Division Eight noted the plaintiff had to prove Waters acted with actual malice (“people speak with actual malice when they know their statements are false, or they recklessly disregard whether their statements might be false”), but it found the plaintiff’s “evidence created a possible inference of Waters’s willful blindness, which is probative of actual malice.”
  • Lying-in-wait murder. The court denied review in People v. Borg and In re Borg, but Justice Joshua Groban recorded votes to grant in both. The Fourth District, Division One, unpublished opinion in the former (the appeal) that affirmed a conviction of first degree murder with a lying-in-wait special circumstance, rejected a number of different arguments, so it’s not clear what issue or issues attracted Justice Groban’s attention. However, our guess is it’s the issue that was the subject of a partial dissent in the case. Contrary to the majority, one justice concluded “the standard CALCRIM instruction on first degree murder (No. 521) fails to correctly set forth the mental state required to establish that crime on a lying-in-wait theory, as recently confirmed and explained by the Supreme Court in People v. Brown (2023) 14 Cal.5th 453.” Justice Groban wrote the unanimous opinion in Brown. (See here.)
  • Minors in criminal court. The court granted review in In re A.J., vacated the Fourth District, Division Two, unpublished opinion that affirmed a juvenile court grant of a motion to transfer the defendant from juvenile court to a court of criminal jurisdiction, and told the appellate court to “reconsider the cause in light of In re F.M. (2023) 14 Cal.5th 701, 712-716 [see here] and In re E.P. (2023) 89 Cal.App.5th 409, 416 [‘under the previous version whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court was one of five factors for the court to consider in determining whether the case should be transferred to criminal court. The amendment states it as the ultimate question for the court to decide’].” The court made the same order last month in another Division Two case. (See here.)
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds: one more waiting for a decision in People v. Lynch (see here); 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. Salazar (see here); two more on hold for People v. Hardin (see here); and one holding for People v. Collins (see here).
  • Tansavatdi dispositions. The court disposed of three cases that were grant-and-holds for Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, which was decided in April. Review was dismissed in Cooper v. County of San Diego (see here) and County of Fresno v. Superior Court (see here). Rodas v. Department of Transportation (see here) was sent back to the Fourth District, Division One, for reconsideration in light of Tansavatdi. In an unpublished opinion, Division One had reversed a $24,188,847 personal injury judgment against Caltrans.