At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement last month, actions of note included:

  • The court granted review in Family Health Centers of San Diego v. State Department of Health Care Services, to again delve into federal public benefits law.  (Related:  here and here.)  The issue concerns allowable reimbursements to healthcare providers who serve low income patients under the Medicaid/Medi-Cal program.  Some operating costs, including some advertising expenses, are reimbursable, but the Third District Court of Appeal, in an unpublished opinion, held a health center’s $78,000 outreach expenses were not among those that could be recouped, even though the appellate court acknowledged that federal law requires the outreach activities.  The court concluded, “requiring plaintiff to perform such services . . . does not automatically make the associated costs reimbursable under Medicare (or Medi-Cal), even if they provide a benefit for the recipient.”
  • In Guerrero v. Superior Court, the court denied review “without prejudice to petitioner’s filing a petition for a writ of habeas corpus addressing the issue of his mental competence at the time of entry of his guilty plea, as well as any other appropriate claims.”  However, Justice Goodwin Liu recorded a vote to grant.
  • There were other significant denials of review.  One was in City and County of San Francisco v. All Persons Interested in the Matter of Proposition G, where the First District, Division Four, in a published opinion, held an initiative imposing a parcel tax for schools needed only a majority vote, not two-thirds, to go into effect.  Whether a supermajority is necessary to approve a tax increase by an initiative rather than by a governmental body is a question left open by the 2017 5-2 decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924.  The Courts of Appeal have thus far, like Division Four, extrapolated from the California Cannabis opinion that there is no supermajority requirement and the Supreme Court has consistently declined to review those decisions.  (See here, here, and here.)  (Related:  The Supreme Court doesn’t decide all important issues.)
  • The court also denied review in Pilliod v. Monsanto Company, where a partially divided First District, Division Two, published opinion affirmed an award of about $86,000,000, including about $70,000,000 in punitive damages, to a couple who claimed they both developed non-Hodgkin’s lymphoma from an herbicide they sprayed on their property.  The partial dissent found the punitive damages to be “grossly excessive.”  Horvitz & Levy represented the defendant in the Court of Appeal and filed the petition for review.
  • There were just two criminal case grant-and-holds, both holding for a decision in People v. Strong (see here).
  • The court acted in 30 more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  Two were sent back to the Courts of Appeal for reconsideration in light of the Lewis opinion.  (One of those two cases is also to be reconsidered in light of new legislation, Senate Bill 775.  (See also here).)  16 cases were kept on hold, with the lead case now being People v. Strong (see here).  Review was dismissed in 12 others.  By our count, there are 215 Lewis grant-and-holds still pending.
  • Besides the actions in 30 Lewis grant-and-holds (see directly above), the court also granted review in a new case — People v. Lopez — and transferred the matter back to the Court of Appeal for reconsideration in light of the Lewis opinion and SB 775.  However, the unpublished Lopez opinion by the Second District, Division Four, already did discuss Lewis.
  • The court granted-and-transferred in two cases, directing the Courts of Appeal to reconsider in light of newly enacted Assembly Bill 1540.  The court also explained why the cases weren’t being retained as grant-and-holds:  “This case does not raise the issue presented in People v. Federico [see here], review granted August 26, 2020, S263082, because petitioner[‘s] . . . sentence was not recalled under Penal Code section 1170, subdivision (d).”