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

  • Enhancement discretion. The court granted review in People v. McDavid. A partially divided unpublished opinion by the Fourth District, Division One, Court of Appeal, addressed three different issues and the Supreme Court has not limited the issues, but there is only one issue on which the Division One justices disagreed — the scope of the superior court’s discretion to strike a firearm sentence enhancement and impose a lesser enhancement. Applying the Supreme Court’s January decision in People v. Tirado (2022) 12 Cal.5th 688, the majority thought the trial court had more limited options than the dissent did. The Attorney General filed a request to publish the opinion, which both the appellate court and the Supreme Court denied.
  • Punitive damages reversal. The court denied review in McNeal v. Whittaker, Clark & Daniels, Inc., but Justice Goodwin Liu recorded a vote to hear the case. A divided Second District, Division Eight, published opinion overturned a $3,000,000 punitive award against the supplier of talc with asbestos fibers that was found to be a cause of the plaintiff’s mesothelioma. The majority agreed that “the evidence was insufficient to establish any officer, director or managing agent [of the defendant] acted with the malice, oppression or fraud necessary for an award of punitive damages.” The dissent claimed that the “jury decision was reasonable” and that “appellate courts [should] allow punitive damages to give businesses the proper incentive to promote public safety.” Horvitz & Levy’s California Punitive Damages blog did a comprehensive write-up of the McNeal opinion.
  • Employment case depublication. The court denied review in Meza v. Pacific Bell Telephone Co., but depublished the partially published opinion of the Second District, Division Three. The previously published portion rejected an argument that an employer had violated a statutory wage statement requirement “by failing to include the ‘rate’ and ‘hours’ attributable to [the employer’s] overtime true-up payments.”
  • Strong and Lewis actions. Last month’s decision in People v. Strong (2022) 13 Cal.5th 698 and last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 — both involving 2018’s Senate Bill No. 1437, which narrowed murder liability under the felony murder theory and eliminated it under the natural and probable consequences doctrine — affected dozens of cases this week. The court granted review in four cases and transferred them back to the Courts of Appeal for reconsideration in light of Strong. Also, it shed 49 grant-and-holds: 34 will be reconsidered in light of both Strong and Lewis, five will be reconsidered in light of just Strong, two will be reconsidered in light of only Lewis, and the court dismissed review in eight cases, four of which had been holding for Lewis and Strong and four had been holding for just Lewis. Some of the grant-and-holds had been sitting on the shelf for over two years. Yesterday’s decisions might have gotten rid of the last of the Lewis grant-and-holds; there had been at least 327 of them.  (See here.)
  • Criminal case grant-and-hold. There was just one criminal case grant-and-hold, which is now waiting for a decision in People v. Catarino (see here).