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

  • Lemon Law. The court granted review in Rodriguez v. FCA US, LLC. In a published opinion, the Fourth District, Division Two, Court of Appeal held that a previously owned vehicle with some balance remaining on the manufacturer’s express warranty and sold by a retailer unaffiliated with the manufacturer is not a “new motor vehicle” under California’s Song-Beverly Consumer Warranty Act. The Act defines “new motor vehicle” as including a “motor vehicle sold with a manufacturer’s new car warranty” and provides a specified remedy for owners of certain unrepairable vehicles meeting that definition. The appellate court concluded the definition is “a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.” Division Two “agree[d] with [the] holding but not all of [the] reasoning” of the Third District’s opinion in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. The Supreme Court denied the defendant’s petition for review in Jensen. Horvitz & Levy is appellate counsel for the defendant in Rodriguez and opposed review.
  • Criminal discovery. The court depublished the San Diego Superior Court Appellate Division opinion in People v. Houser. There was no petition for review, but there were two depublication requests. The appellate court held to be improper a city attorney’s delegation to the police in infraction cases of discovery obligations under Brady v. Maryland (1963) 373 U.S. 83 and it ordered dismissed an action for overnight camping in Balboa Park. (Regarding the Supreme Court’s authority over the publication status of appellate division opinions, see here and here.)
  • Design immunity The court granted-and-held in Cooper v. County of San Diego. The case is another one waiting for a decision in Tansavatdi v. City of Rancho Palos Verdes, in which the issue was limited to:  “Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?”  (See here and here.) In Cooper, the Fourth District, Division One, unpublished opinion affirmed a county’s summary judgment motion, concluding, among other things, “under the facts of this case, design immunity precludes the failure-to-warn claim, and even if it did not, because there was no dispute that the County lacked notice of the allegedly concealed dangerous condition, the decision to grant summary judgment was proper.”
  • Mandatory counseling. The court granted a pro per’s untimely petition for review in Rhodes v. Superior Court after the Fourth District, Division One, summarily denied a writ petition. The Supreme Court directed Division One to decide the petition on its merits and included the citations, “See Fam. Code, § 3190, subds. (a) [court may order counseling ‘for not more than one year’] and (d)(2) [court shall make findings and set forth reasons that ‘the court order for counseling does not otherwise jeopardize a party’s other financial obligations’ ”]. Section 3190 allows for court ordered counseling of “parents or any other party involved in a custody or visitation dispute, and the minor child.”
  • Employee sexual abuse. The court denied a petition for review and two depublication requests in Samantha B. v. Aurora Vista Del Mar, LLC, but Justice Carol Corrigan recorded a vote to hear the case. The Second District, Division Six, opinion affirmed a multi-million dollar award to two plaintiffs who were sexually assaulted by an employee of the defendants, a psychiatric hospital and its owner. The petition for review (filed by Horvitz & Levy) raised four issues, including an employer’s vicarious liability for an employee’s sexual misconduct and whether the limit on noneconomic damages imposed by the Medical Injury Compensation Reform Act applied to the causes of action under the Elder Abuse and Dependent Adult Civil Protection Act, so it is unclear which issue or issues attracted Justice Corrigan’s dissenting vote.
  • In-person parole hearings. Over Justice Goodwin Liu’s recorded dissenting vote, the court denied review in In re Bailey, where the Third District’s published 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 recently issued a separate statement on the issue when the court denied review in a different case. (See here.)
  • ICWA compliance. Justice Joshua Groban recorded a dissent from the denial of review in In re D.M., a termination of parental rights case. A partially divided unpublished opinion of the Second District, Division One, held the child welfare agency and the juvenile court violated their statutory duties under the federal Indian Child Welfare Act to inquire whether a child is, or may be, an Indian child, but concluded the deficiencies were not prejudicial. The brief partial dissent concerned the standard under which prejudice should be evaluated.
  • Remote hearing. The court denied review in People v. Churchill, another case on the pandemic docket. In an unpublished opinion, the First District, Division Four, found to be “extremely disconcerting,” but harmless beyond a reasonable doubt, the erroneous holding of a remote probation revocation hearing without the defendant’s consent. Chief Justice Tani Cantil-Sakauye and Justice Corrigan — respectively, the chair and a member of California’s Judicial Council, which issued rules regarding remote criminal hearings during the Covid pandemic — were recused from ruling on the petition for review.
  • Habeas dissenting vote. The court denied a pro per’s habeas corpus petition in In re Fuentes, but Justice Liu recorded a vote to issue an order to show cause. The docket gives no information about the issues raised by the petition, so we can’t tell the reason for the dissenting vote.
  • Criminal case grant-and-holds. There were 15 criminal case grant-and-holds: five more waiting for a decision in People v. Strong (see here), which was argued in May; two more holding for People v. Delgadillo (see here); one more waiting for People v. Curiel (see here); one more holding for People v. Espinoza (see here); one more holding for Camacho v. Superior Court (which is technically a civil case, involving a civil commitment under the Sexually Violent Predators Act (see here)); and five waiting for People v. Tran, which was argued in May. The latter grant-and-holds are unusual because Tran is an automatic death penalty appeal and grant-and-holds have usually (always?) been waiting for decisions in review-granted cases. In Tran, the court ordered supplemental briefing on “the significance, if any, of Assembly Bill No. 333 (Stats. 2021, ch. 699), People v. Valencia (2021) 11 Cal.5th 818, and People v. Navarro (2021) 12 Cal.5th 285 to the issues presented in this case.” All five Tran grant-and-holds involve AB 333, which changed the law regarding gang enhancements.