Besides agreeing to hear two cases, the Supreme Court at its conference yesterday made three unusual grant-and-transfer orders, unusual in that they were less than unanimous. Actions of note included:

  • Police misconduct complaints. The court granted review in Los Angeles Police Protective League v. City of Los Angeles to resolve a conflict between one of its own opinions and a later Ninth Circuit decision. Penal Code section 148.6(a)(2) requires written complaints of police misconduct to be accompanied by signed acknowledgements that filing a knowingly false complaint can lead to a misdemeanor prosecution. Twenty years ago, the court rejected a claim that the statute violates constitutional free speech rights. (People v. Stanistreet (2002) 29 Cal.4th 497.) Three years later, the Ninth Circuit concluded “the statute impermissibly discriminates on the basis of a speaker’s viewpoint in violation of the First Amendment.” (Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215, 1217.) The U.S. Supreme Court denied certiorari in both cases. In the case now on review, the Second District, Division Seven, Court of Appeal said in a published opinion that the decision whether to enforce the statute leaves the defendant City “caught between the Scylla of Chaker and the Charybdis of Stanistreet,” but it concluded, “Because the United States Supreme Court has not ruled section 148.6 or an analogous statute is unconstitutional, we must follow Stanistreet.” The California Supreme Court has limited the issues on review to: “(1) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), constitute improper viewpoint discrimination in violation of the First Amendment? (2) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), impose an impermissible burden on complainants’ ability to file allegations of misconduct against peace officers? (3) Is it error to compel the City to comply with a statute that has been ruled unconstitutional by the United States Court of Appeals for the Ninth Circuit?”
  • Good faith settlements. The court also agreed to hear Pacific Fertility Cases, where the First District, Division One, published opinion held a superior court finding that a settlement was made in good faith was reviewable by writ petition only and not by appeal. Division One recognized there’s a split of Court of Appeal authority on the procedural issue. The Supreme Court limited the issue to: “Whether a petition for writ of mandate is the exclusive means of challenging an order approving or denying a good faith settlement under Code of Civil Procedure section 877.6.” Horvitz & Levy represents the appealing defendant and filed the successful petition for review.
  • Sexual abuse liability. Despite a full Third District published opinion in the case, the Supreme Court granted review on its own motion in Doe v. Anderson Union High School District and transferred the case back to the Court of Appeal “with directions to vacate its decision and reconsider the cause in light of Brown v. USA Taekwondo (2021) 11 Cal.5th 204.” (See here.) Vacating the decision depublishes the opinion. There was a depublication request, but no petition for review. The Third District affirmed a defense summary judgment in an action for negligent hiring and supervision arising from a high school teacher’s on-campus sexual relationship with a student. Only Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Joshua Groban, and Patricia Guerrero voted to grant review. It’s unusual to return a case for reconsideration after the Court of Appeal has already issued an opinion that could have or did consider the authority for which reconsideration is ordered, but that has happened in two other recent Third District cases. (See here and here.)
  • Cisgender prisoners. The court granted a pro per’s petition for review in In re Kakowski and sent the case back to the Fourth District, Division One, to decide whether a policy by the Department of Corrections and Rehabilitation “prohibiting cisgender inmates who are housed at male institutions access to the toiletries and hygiene products specified in the [pro per’s writ] petition — while simultaneously allowing such access to transgender inmates and inmates having symptoms of gender dysphoria housed at male institutions — violates the equal protection clauses of the state and federal Constitutions.” Justice Groban did not vote to grant review.
  • Mental health diversion. In People v. Superior Court (Watson), the court granted a district attorney’s petition for review and directed the Sixth District, which had summarily denied the DA’s writ petition, to decide on the merits the claim that “the superior court erred by granting the request for mental health diversion.” Only Chief Justice Cantil-Sakauye and Justices Corrigan, Leondra Kruger, and Martin Jenkins voted for review. The court is poised to decide a timing issue regarding mental health diversion in People v. Braden. (See here.)
  • In-person parole hearings. The court denied review in In re Ernst, but Justices Goodwin Liu and Leondra Kruger recorded votes to grant. The Fifth District’s unpublished opinion held that neither statutory nor constitutional provisions require an in-person hearing for determinately sentenced nonviolent prisoners eligible for parole consideration under Proposition 57. Justice Liu has dissented from the denial of review on this issue before, including issuing a separate statement in one case. (See here and here.)
  • Jury waiver. Justice Liu also recorded a dissenting vote from the denial of review in People v. Peterson S., where a 2-1 unpublished opinion by the Second District, Division Six, held that the defendant “knowingly and intelligently waived his right to a jury trial” before he was ordered recommitted as a mentally disordered offender. Last week, Justice Liu dissented in a death penalty appeal, claiming the majority “once again lowers the bar for a valid waiver.” (See here.)
  • Noneconomic restitution. Over Justice Kruger’s recorded dissent, the court denied review in People v. Carrillo. A 2-1 unpublished opinion by the First District, Division One, held, among other things, that restitution for noneconomic losses can be awarded not only to the child victim of certain child sex crimes, but to the child’s parents as well.
  • Habeas corpus discovery costs. In In re Fearence, the court directed issuance of an alternative writ to determine whether a superior court should vacate its order “requiring petitioner to ‘send an attorney or investigator to copy or pay for copies of [the] file’ and . . . enter a new order allowing access to the items requested without an advance payment requirement (see Pen. Code, § 1054.9, subd. (e); Davis v. Superior Court (2016) 1 Cal.App.5th 881, 889).” Section 1054.9 governs discovery for habeas corpus petitions of certain materials in the possession of the prosecution and law enforcement authorities.
  • Criminal case grant-and-holds. There were 3 criminal case grant-and-holds, all waiting for the decision in People v. Tran, which should file by September 12 (see also here).