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

  • Implied easements. The court agreed to hear Romero v. Shih, at least to decide this limited issue: “Did the trial court correctly find the existence of an implied easement under the facts?” The trial court granted an implied easement and, alternatively, an equitable easement over a property owners’ 1,296-square-foot encroachment on their neighbors’ property. The equitable easement would entitle the neighbors to compensation of $69,000. In a published opinion, the Second District, Division Eight, Court of Appeal reversed regarding the implied easement, but affirmed regarding the equitable easement. It said the case is one of first impression about “exclusive implied easements” as opposed to “prescriptive easements.”
  • Sentencing. The court also granted review in People v. Lynch, where the partially divided Third District unpublished opinion affirmed the superior court’s imposition of an upper-term sentence for domestic violence. The appellate court held the trial court’s reliance on three of eight aggravating circumstances was improper under legislation applicable retroactively — Senate Bill 567 — but the error was harmless, because there were no mitigating circumstances and “[f]ive aggravating circumstances remain.” The dissent said that the sentencing decision “rested on multiple statements that were improper” and the appellate court “must reverse when, as is the case here, we ‘cannot determine whether the improper factor was determinative for the sentencing court.’ ”
  • PAGA arbitration. There were two grant-and-holds for Adolph v. Uber Technologies, Inc., in which the court granted review last month and then limited the issue to: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” The two back-burnered cases are Sanchez v. M C Painting and Wing v. Chico Healthcare & Wellness Centre, where a Fourth District, Division One, unpublished opinion and a Second District, Division Five, published opinion, respectively, affirmed the denial of employer petitions to compel arbitration of PAGA actions.
  • Consumer reports. The court denied review in Herbert v. Barnes & Noble, Inc., but it depublished the opinion of the Fourth District, Division One, that reversed a defense summary judgment in a putative class action claiming a violation of the federal Fair Credit Reporting Act. Instead of providing job applicants with a standalone disclosure stating that the employer can get the applicant’s consumer report, the defendant’s disclosure allegedly included extraneous language unrelated to consumer reports. The appellate court held, “Unlike the trial court, we conclude a reasonable jury could find that Barnes & Noble’s alleged FCRA violation was willful.”
  • Elder abuse. The court also denied review and depublished the Third District’s opinion in Williams v. National Western Life Insurance Company. An earlier published  opinion in the case had reversed an award, including $2,500,000 in punitive damages, against an insurance company regarding the sale of the company’s annuity, because, the appellate court concluded, the person who sold the annuity was not the company’s agent. The Supreme Court granted review and transferred with directions to vacate the decision and reconsider in light of one page of a 2005 Supreme Court opinion and several sections of the Insurance Code. (See here.) This time, the Third District affirmed the finding of the company’s liability for negligence and financial elder abuse, but reversed the punitive damages and remanded for the superior court to reconsider an attorney fee award in light of the punitive damages reversal.
  • Sexual harassment. Speaking of granting-and-transferring after a full Third District opinion (see Williams, above), the Supreme Court also did that in Berkery v. Visit Elk Grove. The unpublished 20-page opinion held the plaintiff had not pleaded a cause of action under Civil Code section 51.9, that provides liability for sexual harassment in certain relationships between providers of professional services and their clients. The Supreme Court said the Third District needs to “reconsider its conclusion that plaintiff failed to plead she could not easily terminate the relationship as required by Civil Code section [51.9] in light of Paragraph 122 of the third amended complaint.”
  • Habeas merits. The court granted review in In re Grier and ordered the First District, Division Two, which had summarily denied a habeas corpus petition, to issue an order to show cause “why petitioner is not entitled to relief on the ground he received ineffective assistance of counsel at trial.” When it requested an answer to the petition for review, the Supreme Court said, “In particular, be sure to address petitioner’s contention the Court of Appeal erred in summarily denying habeas relief because it misapplied the standard for establishing a prima facie case for relief” and it cited People v. Romero (1994) 8 Cal.4th 728, 737-738, 741-742 and People v. Duvall (1995) 9 Cal.4th 464, 474-475. Romero and Duvall state that an order to show cause should generally issue if a habeas petition states a prima facie case on a claim that is not procedurally barred.
  • Recorded votes in murder cases. The court denied review in People v. Henderson and People v. Pineda over the recorded dissents of Justice Goodwin Liu. Because Justice Liu’s votes are unexplained and each case dealt with multiple issues, it’s difficult to determine what issue or issues attracted his attention. The partially divided, partially published Third District opinion in Henderson upheld a murder conviction, addressing nine separate issues. The published portion of the opinion concerned the dismissal for cause of two Black prospective jurors. The partial dissent concerned the majority’s rejection of an ineffective assistance of counsel claim. The partially published opinion of the Second District, Division Five, in Pineda concerned a transfer from juvenile to criminal court and the refusal to strike a sentence enhancement.
  • Covid insurance. The court denied review and depublication in Musso & Frank Grill Co. v. Mitsui Sumitomo Insurance USA. The Second District, Division One, opinion held that government orders to close the plaintiff’s restaurant due to the Covid pandemic did not allow for the recovery of insurance benefits under a business interruption policy.
  • Speedy trials and the pandemic. The court denied review in Elias v. Superior Court, where the Fourth District, Division One, published opinion rejected a claim that the defendant’s speedy trial rights were violated by multiple trial continuances because of the Covid pandemic. Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, probably because they are, respectively, the chair and a member of the Judicial Council, which issued pertinent jury-trial-suspension orders during the pandemic.
  • Criminal case grant-and-holds. There were 7 criminal case grant-and-holds: four more waiting for a decision in People v. Tran, which was argued in May (see also here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; one more waiting for People v. Curiel (see here); and one holding for People v. Lynch (see above).
  • Disposal of grant-and-holds. The court got rid of two former grant-and-holds that were waiting for both People v. Padilla (2022) 13 Cal.5th 152, which was decided in May, and People v. Federico, which the court transferred back to the Court of Appeal in February. Review in one grant-and-hold was dismissed with the vote of only four justices — Chief Justice Cantil-Sakauye, and Justices Corrigan, Leondra Kruger, and Martin Jenkins. The other was sent back to the Court of Appeal for reconsideration in light of Padilla, with Justice Corrigan not voting for that disposition.