At its conference yesterday — a double one — the Supreme Court agreed to answer an employment law question for the Ninth Circuit and left in place a preliminary injunction against Uber and Lyft.  Other notable actions included:

  • The court granted the petition for review in Hoffmann v. Young, a case involving the recreational use immunity statute, Civil Code section 846.  [Disclosure:  it’s a Horvitz & Levy petition, which is here.]  As summarized by court staff, the issue is whether an invitation to enter by a non-landowner — here, the landowner’s child — that was made without the landowner’s knowledge or express approval satisfies the requirements of Civil Code section 846, subdivision (d)(3), and abrogates the landowner’s immunity from liability for damages suffered during permissive recreational use of the property.  (Subdivision (d)(3) makes the immunity inapplicable to “[a]ny persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.”)  In a divided published opinion, the Second District, Division Six, Court of Appeal answered “yes,” at least when the child “is living with the landowner on the landowner’s property and the landowner has consented to this living arrangement” because the landowner has “delegat[ed] authority to a child to invite guests onto the property for social purposes.”  The majority accused the dissent of being “a slave to literalism” in its statutory interpretation.
  • The court also agreed to hear Niedermeier v. FCA US LLC, which raises the issues, again as summarized by court staff, (1) Does the statutory restitution remedy under the Song-Beverly Act (Civ. Code, § 1790 et seq.) necessarily include an offset for a trade-in credit? (2) If the amount that a consumer has received in a trade-in transaction must be subtracted from the consumer’s recovery, should that amount be subtracted from the statutory restitution remedy or from the consumer’s total recovery?  The Second District, Division One, published opinion held “the Act’s restitution remedy, set at ‘an amount equal to the actual price paid or payable’ for the vehicle (§ 1793.2, subd. (d)(2)(B)), does not include amounts a plaintiff has already recovered by trading in the vehicle at issue.”
  • The court denied review in Arrow Highway Steel, Inc. v. Dubin, but Justice Mariano-Florentino Cuéllar recorded a vote to grant.  The Second District, Division Two, published opinion held to be unconstitutional under the U.S. Constitution’s “dormant Commerce Clause” Code of Civil Procedure section 351, which tolls the statute of limitations for an action against a person who, “after the cause of action accrues, . . . departs from the State.”  The appellate court disagreed with a 2018 Sixth Circuit Court of Appeals decision.
  • The court granted review in People v. Oats and transferred the case to the Fourth District, Division One, with directions to reconsider the cause in light of Assembly Bill 1950 (Stats. 2020, ch. 328), which restricts probation terms.  Justice Joshua Groban recorded a vote to keep the case and have the Supreme Court decide the merits.  The transfer comes after a 36-page unpublished appellate court opinion.  The Supreme Court transferred two other cases — People v. Harris (Third District unpublished opinion here) and People v. Libich (Second District, Division Three, unpublished opinion here) — for reconsideration in light of AB 1950 with no justices recording a vote to retain the matters.
  • The court granted review in People v. Fregoso and sent the case back to the Second District, Division Six, which had dismissed the defendant’s appeal after denying relief from the late filing of the notice of appeal.  The Supreme Court told the appellate court to “reconsider . . . in light of In re Thornton (1966) 64 Cal.2d 484, 485.”
  • The court granted-and-held in Sheen v. FCI Lender Services, Inc., which is on the back burner pending a decision in Sheen v. Wells Fargo Bank (see here).  The latter Sheen case involves the issue whether a mortgage servicer owes a borrower a duty of care to refrain from making material misrepresentations about the status of a foreclosure sale following the borrower’s submission of, and the servicer’s agreement to review, an application to modify a mortgage loan.  The one-page, unpublished opinion by the Second District, Division Eight, in Sheen v. FCI explained the appeal has “the same plaintiff and his same lawyer and their same second amended complaint against a different defendant” as in the Sheen v. Wells Fargo case, which Division Eight also decided, and the appellate court was thus “standing by th[e] view” expressed in Sheen 1 that “no such tort duty exists.”
  • There were 19 criminal case grant-and-holds:  nine more holding for a decision in People v. Lewis (see here), one holding for People v. Duke (see here), one holding for Lewis and Duke, two more holding for People v. Lopez (see here), four more holding for People v. Raybon (see here), one more holding for People v. Tirado (see here), and one holding for People v. Henderson (see here).
  • The court got rid of 13 grant-and-holds, which were all waiting for the court’s December decision in In re Gadlin.