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

  • Supreme Court won’t open file of clemency request it denied in 2018
  • Out-of-state arbitration. The high-profile litigation between the Dentons law firm and one of its former partners (see here and here) returns to the court after the grant of review in Zhang v. Superior Court. The procedural question is whether the former partner can continue his case in a California court as opposed to having the dispute arbitrated in New York as Dentons prefers. The former partner relies on Labor Code section 925, which bars requiring an employee “who primarily resides and works in California” to agree “to adjudicate outside of California a claim arising in California,” while Dentons filed a motion under Code of Civil Procedure section 1281.4, which requires staying California litigation when another state’s court “has ordered arbitration of a controversy which is an issue involved in” the litigation. The Second District, Division Eight, Court of Appeal’s published opinion sided with Dentons, at least preliminarily, concluding that “the parties delegated questions of arbitrability to the arbitrator” and that one of those questions for the New York arbitrator is whether the former partner “is an employee who may invoke Labor Code section 925 and require the merits of the dispute to be resolved in California instead of New York.” Division Eight had previously summarily denied the former partner’s writ petition, but the Supreme Court directed the appellate court to issue an order to show cause. (See here.)
  • SVPA jury waiver. The court granted review in People v. Cannon, where the published part of a First District, Division Five, partially published opinion found a potential equal protection violation in not requiring a personal jury trial waiver from a defendant subject to civil commitment under the Sexually Violent Predator Act when a personal waiver is required in commitment proceedings for those alleged to be mentally disordered offenders or who plead not guilty by reason of insanity. Because the equal protection issue wasn’t raised in the superior court, Division Five did, however, find a remand necessary “to give the People a meaningful opportunity to demonstrate a valid constitutional justification for the SVP’s differential legislative treatment.” (Related: concurrence argues for different equal protection analysis.)
  • Brown Act violation. The court denied review in G.I. Industries v. City of Thousand Oaks, but it depublished the Second District, Division Six, opinion overturning a city council’s finding that a project was exempt from the California Environmental Quality Act. Division Six concluded the council had violated a part of the Brown Act by not specifically listing the finding on the council’s agenda for its public meeting. Approval of the project itself — an exclusive solid waste franchise agreement — was put on the agenda, but the appellate court held “[t]he CEQA exemption involved a separate action or determination by the City and concerned discrete significant issues of CEQA compliance.”
  • Defendant not present. Justices Carol Corrigan and Joshua Groban recorded dissenting votes from the denial of review in People v. Pereira after a divided unpublished opinion by the Fourth District, Division Two, found to be harmless beyond a reasonable doubt the trial court’s ex parte communications with the jury when the jury indicated it was deadlocked on one count. The dissent believed it to be “plausible that, absent the trial court’s improper communications, at least one juror would not have switched from acquittal to conviction.”
  • Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more holding for a decision in  People v. Williams (see here); one more waiting for People v. Lynch (see here); one more holding for People v. Burgos (see here); and one holding for Burgos, People v. Rojas (see here), and People v. Hardin (see here).
  • Grant-and-hold disposals, including disposal of an old one.  The court took three grant-and-holds off its docket. One — People v. Hutchinson — was a grant-and-hold since July 2020. It was on hold for a decision in People v. Lopez, but the court transferred Lopez to the Court of Appeal for reconsideration in light of Senate Bill 775. Although the Lopez transfer occurred in November 2021 (see here), it wasn’t until yesterday that Hutchinson was transferred to the Court of Appeal for reconsideration in light of that same legislation, SB 775. Hutchinson’s appeal concerns the denial of his resentencing petition, which was filed over four years ago; he received a 20-year, eight-month sentence in 2017. The court dismissed review in the other two grant-and-holds, which had been waiting for the December decision in People v. Ramirez (2022) 14 Cal.5th 176 (see here).