At the Supreme Court’s conference yesterday, actions of note included:
- Arbitration waiver. The court granted review in Quach v. California Commerce Club, where the published part of a 2-1 opinion by the Second District, Division One, Court of Appeal held a defendant had not waived its right to arbitrate a wrongful termination lawsuit by, as the appellate court described it, “waiting 13 months after the filing of the lawsuit to move to compel arbitration, and by engaging in extensive discovery during that period.” The majority wrote, “Our Supreme Court has made clear that participation in litigation alone cannot support a finding of waiver, and fees and costs incurred in litigation alone will not establish prejudice on the part of the party resisting arbitration.” The dissent, noting that “[t]he unfairness of compelling non-unionized employees to forfeit their access to the civil justice system in favor of private arbitration is well recognized,” asserted deference should have been given to the superior court, which “essentially concluded that Commerce Club’s explanations [for delay] were a pretext that had been fabricated to justify its tardy motion to compel arbitration.” The opinion was filed less than two weeks before the U.S. Supreme Court held prejudice to the other side is not essential to finding an arbitration waiver in federal courts. (Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708.) In the unpublished portion of its opinion, Division One concluded the arbitration agreement was not unconscionable. The California Supreme Court has not limited the issues on review, at least not yet.
- Dependency. The court also agreed to hear In re N.R. The Second District, Division Five, unpublished opinion affirmed a juvenile court order that removed a 17-month-old from his father’s custody based on a finding the boy was at substantial risk of serious physical harm because of the father’s cocaine habit. Division Five wrote, “Father’s regular cocaine use, which he described as occurring once or twice every other week, combined with the positive test result showing a high level of cocaine metabolites while he was responsible for caring for [his son], were sufficient to demonstrate he abused, not just used, cocaine.”
- Governor’s emergency powers. The court denied the petition for review and a depublication request in 640 Tenth, LP v. Newsom. The partially published opinion by the Fourth District, Division One, rejected challenges by restaurant and gym owners to Governor Gavin Newsom’s emergency orders restricting business operations during the Covid pandemic. The owners argued that the Governor had violated California’s Administrative Procedure Act and that the orders effected an unconstitutional taking without compensation. Division One, however, did express sympathy for “the position some Owners find themselves in and the significant financial losses they allege.”
- Criminal case grant-and-holds. There were 5 criminal case grant-and-holds: one more waiting for the decision in People v. Tran, which should file by September 12 (see also here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; one more holding for People v. Espinoza (see here); one more waiting for People v. Curiel (see here); and one holding for People v. Lynch (see here).