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

  • Permission given to grant pardon for robbery convictions in the 1970’s.
  • Insurance exhaustion: When the court grants review, the Court of Appeal has usually issued a published opinion, especially in civil cases. Truck Insurance Exchange v. Kaiser Cement is an exception, where the court agreed to analyze one portion of the Second District, Division Four, 70-page unpublished opinion in the case. In granting review, the Supreme Court limited the issue to: “May a primary insurer seek equitable contribution from an excess insurance carrier after the primary policy underlying the excess policy has been exhausted (vertical exhaustion), or is equitable contribution from an excess insurance carrier available only after all primary policies have been exhausted (horizontal exhaustion)?” The Second District held that horizontal exhaustion applies, noting it is at odds with SantaFe Braun, Inc. v. Insurance Company of North America (2020) 52 Cal.App.5th 19 from the First District, Division Four. It said it “disagree[s] with SantaFe Braun that there is no distinction between multiple layers of excess insurance . . . and layers of primary and excess insurance.” The Supreme Court denied review in SantaFe Braun.
  • No class. The court granted a depublication request in Cirrincione v. American Scissor Lift, Inc. The previously published Third District opinion affirmed the denial of class certification in an employment case that included allegations about wage and meal-and-rest-break violations. There was no petition for review.
  • Bad search. The court denied review but granted a request to depublish the Third District’s opinion in People v. Rorabaugh. The appellate court reversed a first-degree murder conviction after finding a Fourth Amendment violation. Officers, executing a search warrant for the defendant’s home and vehicles there, seized defendant’s car that was not at his home but at a nearby property of another person.
  • Baby bar retake. In Wooten v. State Bar, the court is giving a law student a possible second shot at a fourth taking of the First-Year Law Students’ Exam. The court’s order says the student might not have been “provided with, and able to access, the correct remote exam information for the June 2020 First-Year Law Students’ Examination on the exam date.” The June 2020 test was used as a guinea pig for the subsequent postponed and remote bar exam.
  • Bail bond regulation: The court denied review in BBBB Bonding Corp. v. Caldwell, where the First District, Division One, published opinion held that statutes governing consumer credit contracts, including a notice-to-cosigner requirement, apply to bail bond premium financing agreements between a cosigner and the bail bond agent. (Horvitz & Levy filed the petition for review.) (Related: The Supreme Court doesn’t decide all important issues.)
  • Take home Covid. Ruling in yet another case on its pandemic docket, the court also declined to hear See’s Candies, Inc. v. Superior Court. The Second District, Division One, held in a published opinion that the exclusivity provision of the Workers’ Compensation Act did not bar a wrongful death action by an employee who contracted Covid because of her employer’s alleged failure to take adequate safety precautions and who then passed the disease to her husband, who died. The opinion concluded the death was “allegedly causally related to [the wife’s] alleged infection by the virus in the workplace, but . . . not derivative of that infection.” Unaddressed was whether there is “a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work.” Review was denied even though the appellate court said that “[e]mployer liability for COVID-19 exposure is a significant issue of law that is also of public interest.” (Related: The Supreme Court doesn’t decide all important issues.)
  • Criminal case grant-and-holds. There were nine criminal case grant-and-holds: seven more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), and one more holding for People v. Espinoza (see here).
  • Grant and transfer. The court granted review and transferred a case back to the Court of Appeal for reconsideration in light of Assembly Bill 333.
  • Disposal of grant-and-hold. Apparently because of habeas corpus relief granted by a lower court, the Supreme Court granted the defendant’s request for dismissal of review in a case that was on hold first for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 and then for the pending People v. Strong (see here).
  • Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)