Statute of limitations. The court granted a pro per’s petition for review in Escamilla v. Vannucci to decide which statute of limitations applies in a malicious prosecution action against an attorney who sued the plaintiff, the one-year period of Code of Civil Procedure section 340.6 (governing “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services”) or the two-year period of section 335.1 (governing “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another”). In a belatedly published opinion (Horvitz & Levy filed the publication request), the First District, Division One, Court of Appeal held section 340.6 “applies to malicious prosecution claims against attorneys who performed professional services in the underlying litigation.” Rejecting the argument that section 340.6 is limited to actions brought by a party suing their own attorney, Division One followed the First District, Division Five, decision in Connelly v. Bornstein (2019) 33 Cal.App.5th 783 and the Fifth District’s opinion in Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050. On the other hand, the Second District, Division Three, in Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, disapproved on another ground in Lee v. Hanley (2015) 61 Cal.4th 1225, held section 335.1 provided the applicable limitations period. There was no petition for review in Connelly, Garcia, or Roger Cleveland. There was a depublication request in Roger Cleveland that was denied.
Implied malice murder. Over the dissenting recorded votes of Justices Goodwin Liu and Joshua Groban, the court denied review in People v. Superior Court (Rawlins). The Third District unpublished opinion in the case held the superior court had erroneously dismissed a murder charge after a preliminary hearing. The defendant — a convenience store worker — and the victim — a customer — had an altercation during which the defendant pushed and punched the victim, who fell and hit his head. The appellate court recognized an “exceedingly low standard required at the preliminary hearing,” and concluded that, “[b]ecause there is some rational ground for assuming the possibility that implied malice murder has been committed and the accused is guilty of it, the charge must be reinstated.”
Resentencing after a plea agreement. The court denied a request to depublish the First District, Division One, opinion in People v. Coddington. There was no petition for review, but Justice Kelli Evans recorded a vote to hear the case on the court’s own motion. Division One held the defendant was entitled to another resentencing hearing, but, interpreting People v. Stamps (2020) 9 Cal.5th 685 (see here), the appellate court also said if the superior court indicates at the hearing that it will order a sentence reduction, the prosecution has the right to withdraw from the agreement under which the defendant was sentenced.
COVID speedy trial claim. The court denied review of the First District, Division Three, unpublished opinion in People v. Marman. Division Three rejected a claim that the defendant’s speedy-trial right was violated by an 11-month delay during the COVID pandemic. It said the “delay was ‘ “presumptively prejudicial,” ’ ” but “join[ed] other courts in concluding 2020 and 2021 delays were due to the COVID-19 pandemic,” eight months of the delay having “stemmed directly from the COVID-19 shutdown and preceded the trial court’s reopening” and the other three months having “stemmed from the backlog COVID-19 created in the trial court.” A separately concurring justice wrote that she “remain[s] concerned about the pace at which the San Francisco Superior Court acted to clear the backlog of criminal cases after it ‘return[ed] to “pre-pandemic” levels of service’ at the end of June 2021.” Chief Justice Patricia Guerrero and Justice Carol Corrigan were recused, probably because they are, respectively, the chair and a member of the Judicial Council, which issued jury-trial-suspension orders during the pandemic. In Raju v. Superior Court, the court will decide whether taxpayers have standing to sue a superior court for improper pandemic-related delays in bringing criminal cases to trial. (See here.)
Review dismissed in forum selection case. The court dismissed review in Gerro v. BlockFi Lending LLC. When review was granted in September 2022, the court limited the issue to: “Did the Court of Appeal correctly hold that this action must remain in California despite the contractual forum selection clause?” One defendant in the litigation — which involves a loan collateralized by bitcoin — filed for bankruptcy a few months later and the court stayed the case. Last May, the court dismissed review as to another defendant, which had settled with the plaintiff. A month ago, the court said it was construing the bankrupt defendant’s quarterly bankruptcy status report “as a motion to dismiss review and remand this matter with instructions that it be dismissed with prejudice.” Review was dismissed after a response by the plaintiff. There are two other forum-selection cases remaining on the court’s docket — EpicentRx, Inc. v. Superior Court (see here) and Zhang v. Superior Court (see here).
Kill zone. Acting on a pro per’s habeas corpus petition in In re Jimenez, the court issued an order to show cause, returnable in the Court of Appeal, “why relief should not be granted on the ground that instructing petitioner’s jury on the kill zone theory, in violation of People v. Canizales (2019) 7 Cal.5th 591 [see here and here], was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18.”
Criminal case grant-and-holds. There were three criminal case grant-and-holds: one more waiting for a decision in In re Vaquera (see here and here), which was argued in November and which will be decided this Monday; one more on hold for People v. McCune (see here); and one more holding for In re Hernandez (see here).