Supreme Court depublishes opinion that overturned contempt for violating Covid health orders, takes another ICWA case

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

  • Covid contempt. The court denied review in People v. Calvary Chapel San Jose, but it depublished the Sixth District Court of Appeal’s opinion reversing contempt orders imposed for a church’s violation of temporary restraining orders that had required the church to comply with public health orders issued to combat the Covid pandemic. The appellate court concluded the TROs were “facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice.” In one of the U.S. Supreme Court’s shadow docket decisions on which the Sixth District relied, Justice Elena Kagan in a three-justice dissent criticized the Court majority for its “foray into armchair epidemiology” and for “insisting that science-based policy yield to judicial edict.” (South Bay United Pentecostal Church v. Newsom (2021) 592 U.S. __ [141 S.Ct. 716, 723].)
  • Another ICWA grant: While the U.S. Supreme Court considers in Haaland v. Brackeen whether the federal Indian Child Welfare Act is even constitutional, the California Supreme Court granted review in In re Kenneth D. The Third District held in a published opinion that there was an “abject failure of [a county] Department and juvenile court to inquire as to father’s possible Native American heritage,” but the error was harmless. There was no prejudice, the appellate court found, because a post-parental-rights-termination investigation established any indigenous ancestry was in Mexico and, thus, the father’s “family did not have Native American heritage.” It disagreed with the Second District, Division Seven, conclusion that a belated investigation could not be considered (In re M.B. (2022) 80 Cal.App.5th 617, 629 [there should be “a conditional reversal with directions for full compliance with the inquiry and notice provisions of ICWA and related California law”]) and with the Fourth District, Division Three, decision that there can’t be harmless error in failing to investigate (In re E.V. (2022) 80 Cal.App.5th 691, 700-701). There were no petitions for review in M.B. or E.V. In September, the California Supreme Court agreed to hear another ICWA-compliance case — In re Dezi C. (See here.) Because Kenneth D. is not a grant-and-hold for Dezi C., the cases apparently raise sufficiently distinct issues to warrant two separate opinions.
  • ICWA grant-and-hold. Kenneth D. might not be a grant-and-hold for Dezi C. (see above), but In re E. L. is now a grant-and-hold for Kenneth D. In E. L., the Second District, Division Six, in a published opinion, used the rarely used power under Code of Civil Procedure section 909 of appellate courts to take evidence, reviewing a tribal letter stating that the children at issue were not tribal members for ICWA purposes. Division Six thus allowed for a termination of parental rights and an adoption, reasoning that “[r]emand would unnecessarily delay the likelihood of adoption of the children and would achieve the same result we do here.”
  • Criminal case grant-and-holds. There was just one criminal case grant-and-hold. The case is now waiting for a decision in People v. Lynch (see here).
  • Grant-and-hold disposals.  The court continued to remove from its docket grant-and-holds that had been waiting for the August decision in People v. Strong (2022) 13 Cal.5th 698. Review was dismissed in eight of those and 22 were sent back to the Courts of Appeal for reconsideration in light of Strong.

Another no-straight-grant conference

There were no straight grants at today’s conference, uncommonly held on a Tuesday, but there were some actions of note, including:

  • Slip-and-fall depub. The court denied review in Perez v. Hibachi Buffet, but it depublished the Second District, Division Eight, Court of Appeal opinion that reinstated a $850,000 damage award to a slip-and-fall plaintiff after the superior court had granted judgment notwithstanding the verdict and, in the alternative, a new trial. The superior court had found no evidence the defendant restaurant’s employees were responsible for the spilled water on the floor that caused the plaintiff’s fall, but Division Eight concluded evidence supported the plaintiff’s “commonplace explanation for how the floor got wet: a Buffet employee spilled the liquid taking dishes to the kitchen for washing.” The appellate court also held, “It is an abuse of discretion to grant a new trial on the ground of insufficient evidence without mentioning a pertinent discovery admission.”
  • Civil right to counsel. Justice Joshua Groban recorded a dissenting vote from the denial of review in Espinoza v. Superior Court after the Second District, Division Three, summarily denied a writ petition. The petition for review asked the court to find a right to counsel for indigent parents who are at risk of losing parental rights in contested probate guardianship proceedings. In what it said is called the “hidden foster care system,” the petition claimed that child welfare agencies will sometimes threaten to remove a child in a dependency proceeding — where there is a right to counsel — unless custody is relinquished to a relative or friend through the guardianship process. The petition was supported by two amicus letters (here and here) on behalf of numerous organizations, law professors, two retired Court of Appeal justices, and a retired superior court family law judge. The Supreme Court’s order says the denial of review is “without prejudice to petitioner raising the issues on direct appeal.”
  • Prisoner medical care. The court granted review in In re Devon and transferred the case to the Sixth District — which had summarily denied a habeas corpus petition — with directions to order a superior court evidentiary hearing on whether the refusal to grant petitioner’s request for spinal decompression surgery violates the Eighth Amendment of the United States Constitution, and article I, section 17 of the California Constitution. Justice Groban did not vote for review.
  • Sexually violent predator commitment. After the Fourth District, Division Three, summarily denied a habeas corpus petition, the Supreme Court granted review in In re Russo and ordered the appellate court to decide whether the petitioner is “entitled to relief on the ground insufficient evidence supported the Orange County Superior Court’s February 20, 2020, finding that a reasonable person could entertain a strong suspicion petitioner ‘has a diagnosable mental disorder’ that ‘makes it likely he . . . will engage in sexually violent criminal conduct if released . . . .’ (Cooley v. Superior Court (2002) 29 Cal.4th 228, 236.)”
  • Criminal case grant-and-holds. There were five criminal case grant-and-holds:  two more waiting for People v. Lynch (see here); one more holding for People v. Delgadillo (see here), which was argued last month; one holding for People v. McDavid (see here); and one more holding for People v. Prudholme (see here).
  • Grant-and-hold disposals.  The court took 31 criminal case grant-and-holds off its docket. Review was dismissed in one that was waiting for the August decision in People v. Aguayo (2022) 13 Cal.5th 974. The other 30 were all on hold for the August decision in People v. Strong (2022) 13 Cal.5th 698 — the court dismissed review in 11 and sent the remaining 19 back to the Courts of Appeal for reconsideration in light of Strong.

Supreme Court will hear an arbitration case

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

  • Agreement to arbitrate. The court granted review in Logan v. Country Oaks Partners, LLC to resolve a conflict whether a person designated in an advance health care directive as someone’s health care agent and attorney-in-fact is authorized to sign an arbitration agreement binding on the designator. The published opinion of the Second District, Division Four, Court of Appeal said “no” in a case where a designatee-nephew signed both an arbitration agreement and an agreement admitting his designator-uncle to a skilled nursing facility. It disagreed with the Second District, Division Five, opinion in Garrison v. Superior Court (2005) 132 Cal.App.4th 253. The Fourth District, Division Three, agreed with Garrison in Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, but the Sixth District in Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122 did not. The Supreme Court denied review in Garrison with two justices recording votes to hear the case. There was no petition for review in Hogan or Young.
  • PAGA intervention. After granting relief to file a petition for review that was submitted 17 days late (related: Getting relief for a late petition for review might not be a hopeless cause; and see here), the court granted-and-held in Porras v. Chipotle Services, LLC, which will now wait for a decision in Turrieta v. Lyft, Inc. In Turrieta, the court limited the issue to: “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the State?” The Fifth District’s unpublished opinion in Porras affirmed the denial of a motion to vacate the judgment in a related PAGA action.
  • Creative expression evidence. The court granted review in People v. Wilson and sent the case back to the Third District to reconsider in light of Assembly Bill 2799, enacted in September with the Legislature’s stated purpose “to provide a framework by which courts can ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.” The Third District’s unpublished opinion affirmed a murder conviction, finding no error in the admission of a rap video made by the defendant because “the rap lyrics were used specifically as evidence of defendant’s premeditation and deliberation.” The Supreme Court made a similar grant-and-transfer order three weeks ago. (See here.)
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds:  three more waiting for People v. Lynch (see here), one more holding for People v. Faial (see here), one holding for People v. Salazar (see here), and one waiting for People v. Rojas (see here).
  • Grant-and-hold disposals. The court shed 45 criminal case grant-and-holds. Eighteen were holding for both the August decision in People v. Strong (2022) 13 Cal.5th 698 and last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 — 11 were sent back to the Courts of Appeal for reconsideration in light of Strong and Lewis, one is to be reconsidered in light of just Strong, one will be reconsidered in light of only Lewis, and review was dismissed in the other five. Twelve were waiting just for the Strong opinion — five will be reconsidered in light of Strong, one will be reconsidered in light of Strong and People v. Rogers (2006) 39 Cal.4th 826, 892, and review was dismissed in six. Five were on hold for the August decision in People v. Aguayo (2022) 13 Cal.5th 974 — one is to be reconsidered in light of Aguayo and the court dismissed review in four. Ten were waiting for People v. Renteria (2022) 13 Cal.5th 951, also decided in August — nine were returned for reconsideration in light of Renteria and Assembly Bill 333, and one will be reconsidered in light of Renteria, AB 333, and Assembly Bill 518.

A no-straight-grant Wednesday

There were no straight grants at yesterday’s day-after-election-day conference, a double one, but there were some actions of note, including:

  • Website discrimination. The court denied review in Martinez v. Cot’n Wash, Inc., but Justice Goodwin Liu recorded a vote to hear the case. The Second District, Division One, in a published opinion, affirmed the sustaining of the demurrer to a complaint alleging, as described by the appellate court, that the defendant had violated California’s Unruh Civil Rights Act “by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software.” Rejecting dictum in a Second District, Division Five, opinion (Ruiz v. Musclewood Investment Properties, LLC (2018) 28 Cal.App.5th 15, 21), Division One said the plaintiff could not establish the necessary intentional discrimination by alleging “he made [the defendant] aware of the discriminatory effect of [the defendant’s] facially neutral website, and that [the defendant] did not ameliorate these effects.” It also concluded a “retail website[ ] without any connection to a physical space” is not a “ ‘place of public accommodation’ ” under the federal Americans with Disabilities Act. Division One recognized the federal courts are in conflict on the ADA issue and conceded that the statutory interpretation it was rejecting is “consistent with the general, overall goal of [the ADA].”
  • Right to counsel. The court granted review in a pro per prisoner’s case — Gonzalez v. Gerlach — with this interesting order: “The matter is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to consider granting petitioner an additional extension of time to file his opening brief on appeal in light of the Probate Court’s August 19, 2022 order appointing the Public Guardian as successor trustee of the Erik Andrew Gerlach Special Needs Trust and authorizing the successor trustee to ‘proceed as appropriate with respect to the request of Erik Gerlach to locate and retain counsel for him.’ [Citation.] This order is without prejudice to petitioner to renew his request for appointment of counsel should he be unable to obtain counsel for himself. Any renewed request should specifically address whether petitioner is indigent and why he believes appointment of counsel is necessary to preserve his right of access to the courts.”
  • Right to direct a defense. The court issued an order to show cause, returnable in the Court of Appeal, in In re Tilei, a pro per prisoner’s habeas corpus petition filed two years ago. Cause is to be shown “why petitioner is not entitled to relief under McCoy v. Louisiana (2018) 584 U.S. ___ [1389 S.Ct. 1500], and why McCoy should not apply retroactively on habeas corpus to final judgments of conviction.” The U.S. Supreme Court in McCoy held “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” The California Supreme Court reversed a death sentence based on McCoy grounds seven months ago in People v. Bloom (2022) 12 Cal.5th 1008. Justices Joshua Groban and Patricia Guerrero did not vote to issue the order to show cause.
  • New evidence. In In re Duffey, another pro per prisoner’s habeas corpus petition, this one filed a year ago, the court issued an order to show cause, returnable in the superior court, “why relief should not be granted on the ground the petitioner has presented newly discovered evidence of such decisive force and value that it would have more likely than not changed the outcome at trial. (Pen. Code, § 1473, subd. (b)(3)(A).)” (Link added.)
  • Criminal case grant-and-holds. There were three criminal case grant-and-holds:  one more holding for People v. Delgadillo (see here), which was argued last month, and two more waiting for People v. Lynch (see here).
  • Grant-and-hold disposals. The court took five grant-and-holds off its docket. All were waiting for the August decision in In re Milton (2022) 13 Cal.5th 893 — review was dismissed in three and two were returned to the Courts of Appeal for reconsideration in light of the Milton opinion.

Supreme Court will hear SVPA, employment, restitution cases [Updated]

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

  • SVPA expert witness. The court granted a district attorney’s petition for review in Needham v. Superior Court. The 2-1 published opinion of the Fourth District, Division Three, Court of Appeal held the State is not allowed to call a privately retained psychological expert in a proceeding under the Sexually Violent Predator Act to determine whether a person is a sexually violent predator who is to be subject to involuntary civil commitment and treatment at the conclusion of their prison term. The appellate court wrote that the SVPA is “an extraordinary deprivation of a person’s liberty” because “it enables the state to indefinitely detain a person, not for a crime actually committed, but for a crime that may be committed in the future.” It concluded that the Legislature created “a one-sided right,” allowing a defendant, but not a prosecutor, to hire an expert and that the prosecution must be content with the up to eight independent experts provided for in the SVPA. One justice dissented, although he said the issue “is a close one.”
  • Wage claims. The court granted review in Seviour-Iloff v. LaPaille and it limited the issues to: “1. Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? 2. May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?” (Links added.) Concluding section 1194.2 “giv[es] the trial court considerable latitude to exercise its discretion and requir[es] only that the employer demonstrate good faith and reasonableness ‘to the satisfaction of the court,’ ” the First District, Division One, published opinion upheld a superior court decision declining to award liquidated damages. It also concluded “there is no private right of action to seek administrative penalties under section 248.5.”
  • Restitution jurisdiction. The court also agreed to hear People v. McCune, where the First District, Division Five, published opinion held the superior court could set the amount a defendant was required to pay in restitution to a crime victim even though the defendant’s parole had been terminated. Division Five reached the same conclusion as had the Fourth District, Division One, in People v. Zuniga (2022) 79 Cal.App.5th 870, a case Division Five concluded was “on all fours with our case,” but it found to be “somewhat unsatisfying” and as “leav[ing] the law muddled” an analysis in Zuniga distinguishing rather than disagreeing with a First District, Division One, opinion (People v. Waters (2015) 241 Cal.App.4th 822) and one by the Second District, Division Three (Hilton v. Superior Court (2014) 239 Cal.App.4th 766). The Supreme Court granted-and-held in Hilton, dismissed review after the lead case was decided, and later granted a request to republish the appellate court’s opinion. (This was before the Supreme Court changed the rule that a grant of review automatically depublished the Court of Appeal opinion.) The Supreme Court denied review in Zuniga. There was no petition for review in Waters.
  • Girardi State Bar files disclosure. In Los Angeles Times Communications v. State Bar of California, the court accepted the Bar’s concession in an original writ proceeding the court agreed to hear (see here). According to the order, the Bar “intends ‘to release information about past disciplinary investigations concerning Mr. Girardi’ to the extent it believes it is permitted to do so [by statute].” The court said, “we expect that [the Bar] will disclose the information . . . to the petitioner as soon as possible, and no later than November 7, 2022.” It also directed the parties to meet and confer and quickly file briefs, apparently to determine whether the case should continue. The order states that the LA Times responded to the Bar’s concession by “contending this case continues to present issues ‘of public significance’ for which ‘there is a need for clarification of the law.’ ” Justice Leondra Kruger was recused.
  • Creative expression evidence. In People v. Venable, the Fourth District, Division Two, unpublished opinion mostly affirmed a conviction for first degree murder with gang enhancements, including rejecting an argument that the superior court erred in allowing evidence of a rap video in which the defendant appeared. The appellate court was partially divided, but not on the rap video evidence. The Supreme Court granted review and remanded for Division Two to reconsider in light of Assembly Bill 2799, enacted last month with the Legislature’s stated purpose “to provide a framework by which courts can ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.” Only five justices voted to grant review; Justices Carol Corrigan and Kruger did not.
  • Dependency mootness. The court granted-and-held in In re V.G., which is now another case waiting for the court’s decision in In re D.P.  Review was granted in D.P. in in May 2021 and the issues were limited to:  “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding?  (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?” Without opinion, the Second District, Division Six, dismissed a father’s appeal in V.G.
  • Prisoner medical needs. The court issued an order to show cause in a pro per’s habeas corpus petition, In re Garcia, returnable in the superior court, directing a hearing on whether “[a county’s] [j]ail officials have demonstrated deliberate indifference to petitioner’s medical needs within the meaning of Fourteenth Amendment.”
  • Criminal case grant-and-holds. There were two criminal case grant-and-holds: one more holding for People v. Delgadillo (see here), which was argued at the beginning of the month, and one more waiting for People v. Lynch (see here).
  • Grant-and-hold disposals. There were many. This post will be updated with details. [Update: The court dumped 41 grant-and-holds. 39 had been on hold for August’s decision in People v. Strong (2022) 13 Cal.5th 698; 32 were transferred to the Courts of Appeal for reconsideration in light of the Strong opinion and review was dismissed in the remaining seven. One case was still on hold for last year’s decision in People v. Lewis (2021) 11 Cal.5th 952; it was transferred for reconsideration in light of Lewis. (The case is the oldest of this week’s former grant-and-holds — the court granted review almost two years ago and the notice of appeal was filed in September 2019.) And one case, waiting for both Lewis and Strong was transferred for reconsideration in light of Lewis and Strong.]

Supreme Court takes two more gang cases, including one about AB 333’s constitutionality

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

  • AB 333 constitutionality. The court granted review in People v. Rojas, limiting the issue to: “Does Assembly Bill No. 333 (Stats. 2021, ch. 699) unconstitutionally amend Proposition 21, if applied to the gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22))?” (Links added.) A 2-1 Fifth District Court of Appeal partially published opinion said it does. Proposition 21 added gang-related murder to the list of special circumstances making offenders eligible for the death penalty. The initiative incorporated the definition of “criminal street gang” from another statute, a definition that AB 333 narrowed while generally limiting the applicability of sentence enhancements for gang-related felonies. The Supreme Court might not have granted review had the Fifth District upheld AB 333’s applicability to the gang-murder special circumstance. (See here regarding the court’s agreeing to decide the constitutionality of SB 1391 but not of SB 1437.) Rojas already has its own grant-and-holds. (See below.)
  • AB 333 application. The court will also hear People v. Clark, and it limited the issue there to: “Can the People meet their burden of establishing a ‘pattern of criminal gang activity’ under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during each predicate offense?” The Fourth District, Division Two, partially published opinion held it to be the former and it disagreed with the Second District, Division Seven, decision in People v. Delgado (2022) 74 Cal.App.5th 1067, and the Second District, Division Eight, opinion in People v. Lopez (2021) 73 Cal.App.5th 327. The Supreme Court denied review in Delgado and in Lopez. In addition to Rojas (see above) and Clark, the court has other AB 333 cases on its docket. (See here and here.)
  • Late petitions for review granted. The petitions for review in Mendoza v. Superior Court (People) and Morrissette v. Superior Court (People) were submitted six days late, but the court permitted their filing. It then granted the petitions, transferred the cases back to the Fifth District (which had summarily denied petitions (here and here)), and directed the appellate court to decide the writ petitions on their merits. The dockets do not indicate what the issues are. (Related: Getting relief for a late petition for review might not be a hopeless cause, and here and here.)
  • Sentencing abuse. The court denied review in People v. Beasley over the recorded dissenting vote of Justice Joshua Groban. The published opinion of the Fourth District, Division Three, said “[t]he Three Strikes law has come in for its fair share of well-deserved criticism,” but it held the superior court abused its discretion in striking a defendant’s prior strike convictions and in sentencing him to the low term of two years in prison for first degree robbery with the use of a knife.
  • Habeas denial. Justice Groban also recorded a dissent from the denial of review in In re Thompkins. The First District, Division Two, unpublished opinion denied a habeas corpus petition that asserted ineffective assistance of counsel by both the defendant’s trial and appellate lawyers. Trial counsel was claimed to have been ineffective in allowing expert testimony on the rarity of false allegations of molestation and the frequency of recantation from child victims. Appellate counsel was allegedly ineffective in briefing the issue of vindictive prosecution. The Supreme Court had denied review of the defendant’s appeal of his conviction “without prejudice to the right to seek relief by way of petition for writ of habeas corpus as to ineffective assistance of counsel and ineffective assistance of appellate counsel.”
  • Criminal case grant-and-holds. There were three criminal case grant-and-holds: one more holding for People v. Reyes (see here), one holding for People v. Rojas (see above), and one holding for both Rojas and People v. Burgos (see here).
  • Grant-and-hold disposals. The court rid its docket of 42 grant-and-holds. 37 cases on hold for August’s decision in People v. Strong (2022) 13 Cal.5th 698 were transferred to the Courts of Appeal, 36 of them for reconsideration in light of the Strong opinion and one for reconsideration in light of Senate Bill 775 (see here). Two cases on hold for Strong and People v. Lopez (which was itself transferred last year) were sent back for reconsideration in light of Strong and SB 775. Two of the many cases waiting for last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 were transferred, one for reconsideration in light of Lewis and one for reconsideration in light of Lewis and Strong. And one case that was on hold for Lopez, Lewis, and Strong, was sent back for reconsideration in light of Strong, Lewis, and SB 775.
  • Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.) The petition was filed 12 years ago.

Supreme Court will resolve conflict about co-tenancy leasing requirements (and about punctuation?) [Updated]

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

  • Retail lease. The court agreed to hear JJD-HOV Elk Grove, LLC v. Jo-Ann Stores, LLC, where the Third District Court of Appeal’s published opinion framed the issue as “whether a co-tenancy provision in a retail lease for space in a shopping center is enforceable.” (The opinion even explains why it hyphenates “co-tenancy”: “because that is how the parties spell it.”) Under the provision, which the Third District upheld, the store-tenant pays a reduced rent to its shopping center-landlord if the shopping center does not have either three anchor tenants or 60 percent of the space leased. The appellate court disagreed with the Fifth District’s decision in Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332. Besides not hyphenating “cotenancy,” Grand Prospect found a rent abatement provision to be an unenforceable penalty. We assume the Supreme Court granted review to resolve the issue conflict, not the punctuation conflict. Review was denied in Grand Prospect.
  • Sentencing harmlessness. The court also granted review in People v. Salazar and it there limited the issue to: “Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)” (Link added.) The legislative change came after the superior court sentenced the defendant. Assuring that “[t]he Goddess of justice is not wearing a black armband today weeping for the California Constitution,” a 2-1 Second District, Division Six, published opinion said “[i]t is our Constitutional obligation to affirm a judgment, where a more favorable outcome will not result upon reversal.” The dissent criticized the majority for improperly “substituting its judgment for that of the trial court.”
  • Gang enhancements. The court unheld People v. Burgos and limited briefing to: “Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that are not yet final?” Burgos was one of a number of cases waiting for a part of the August death penalty opinion in People v. Tran (2022) 13 Cal.5th 1169 concerning 2021’s Assembly Bill 333 (see here), but the opinion declined to resolve a split in Court of Appeal authority whether one part of the new law — Penal Code section 1109, which requires an enhancement charge to be tried only after a jury finds the defendant guilty of the underlying offense — is retroactive. The Sixth District’s 2-1 published Burgos opinion held the statute is retroactive and reversed second degree robbery convictions. The dissent claimed “section 1109 is not an ameliorative statute . . . and therefore it is subject to the general rule that Penal Code provisions are presumed to be prospective only.” The Supreme Court also acted on 16 other Tran grant-and-holds, converting seven of them to Burgos grant-and-holds and dismissing review in the remaining nine.
  • ICWA grant-and-holds: The court granted-and-held in In re G.A. (Third District published opinion here), In re M.M. (the 2-1 Second District, Division Eight, published opinion here), and In re R.T. (the 2-1 Second District, Division Eight, unpublished opinion here). They are now all back-burnered pending a decision in In re Dezi C., where the court granted review last month to decide what constitutes reversible error when a child welfare agency fails to make the required inquiry under the federal Indian Child Welfare Act and state statutory law concerning a child’s potential Indian ancestry. All three opinions found harmless error.
  • Nunc pro tunc juvenile commitment: The court denied review in In re Jason V., but it depublished the First District, Division Two, opinion. Division Two held the superior court had ordered an impermissible maximum term of confinement for a minor’s commission of numerous robberies, but concluded the superior court could correct the error by a nunc pro tunc order, stating, “the category of error that may be viewed as ‘clerical’ for purposes of determining the validity of a nunc pro tunc order, is not limited to scrivener-type errors.” The issue was important because of intervening legislative action. The original order permissibly committed the minor to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (albeit for the wrong term), but the nunc pro tunc order was entered after legislation had taken effect barring that commitment — the new law shifted from the State to counties the responsibility for youths adjudged wards of the court.
  • Mentally disabled parent. In a dependency case, Justice Joshua Groban recorded a dissenting vote from the denial of review in In re K.R., where a divided Fourth District, Division Two, unpublished opinion upheld the denial of reunification services to a mother based on a finding that she suffers from a mental illness making her incapable of utilizing the services. The disagreement among the Division Two justices focused in part on the interpretation in the Third District’s divided Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470 decision of statutes requiring evidence by two experts to bypass services. The dissent would decline to follow Curtis F., while the majority said that, although Curtis F. “reached a debatable conclusion,” it was “an established interpretation of the statute” because “the case has been cited many times in the ensuing decades, with no case declining to follow it and without the Legislature amending the statute to abrogate it.”
  • Undercover jail conversations. Justice Goodwin Liu dissented from the denial of review in People v. Martinez. The 62-page unpublished opinion of the Fourth District, Division One, addressed several issues, so it’s not clear why Justice Liu wanted to hear the case, but one of the issues has been of repeated interest to him. Division One had no problem with the admission of statements the defendant made in jail — after he requested an attorney — to “an undercover detective and a cooperating individual, who were posing as fellow inmates.” The appellate court held that a suspect’s Miranda rights are not violated “in the absence of a suspect’s knowledge that he is speaking with an agent of police.” Three years ago, Justice Liu issued a separate statement in a case raising a similar issue. He asked, “How is it possible . . . that the protections of Miranda are so easily evaded?” (See more recently here and here.) The Martinez opinion notes the separate statement, saying that Liu had “indicated in his statement that he would grant review in order to consider the validity of th[e] case law [allowing the undercover police practice].”
  • Parole denial. The court denied review in In re Mariscal, but Justice Liu recorded a vote to grant. The Second District, Division Five, order summarily denying the habeas corpus petition in the case stated there was “some evidence supporting the conclusion that petitioner poses a current, unreasonable risk of violence,” and it rejected challenges to parole procedures and to regulations concerning parole consideration for determinately sentenced inmates.
  • [Update: PAGA constitutionality. The court denied review in California Business & Industrial Alliance v. Becerra, where the Fourth District, Division Three, rejected a constitutional attack on the Labor Code Private Attorneys General Act. According to the published opinion, a “lobbying group for small and midsized businesses” sought a declaration that “PAGA violates California’s separation of powers doctrine by allowing private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion.” Division Three said it was bound by the Supreme Court’s constitutionality ruling in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, and it also didn’t think much of the plaintiff’s argument anyway. The Supreme Court has agreed to decide other PAGA cases. (See here and here.)]
  • Possible habeas relief. The court issued an order to show cause on the habeas corpus petition in In re Tibbs. The order requires the Fourth District, Division One, to determine whether relief should be granted “on the ground the trial court and court of appeal misapplied the standard for establishing a prima facie case for relief (Petn. at p. 29; see also Cal. Rules of Court, rule 4.551, subd. (c)(1); People v. Romero (1994) 8 Cal.4th 728, 737-738, 741-742; People v. Duvall (1995) 9 Cal.4th 464, 474-475) and on the separate ground that petitioner has presented newly discovered evidence of such decisive force and value that it would have more likely than not changed the outcome at trial (Pen. Code, § 1473, subd. (b)(3)(A)).”
  • Expedited habeas relief: In In re Wade, after the Third District summarily denied a pro per’s habeas corpus petition and after a concession by the Attorney General, the Supreme Court ordered the superior court “to vacate its July 25, 2022, order denying petitioner’s motion for release on bail pending appeal and to properly exercise its discretion in ruling on the motion. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)” The cited footnote states, “The right to file a return in a habeas corpus proceeding is subject to waiver. Upon being served with a copy of the petition, or upon receiving a request from the court for informal opposition . . ., the petitioner’s custodian may stipulate to the truth of the petition’s allegations and to the requested relief. Should this occur, the court in which the habeas corpus petition is pending may grant relief without issuing a writ of habeas corpus or an order to show cause.” The Attorney General filed an answer to the petition for review at the Supreme Court’s request.
  • Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  five more waiting for People v. Lynch (see here); one more holding for People v. Delgadillo (see here), which was argued 11 days ago; and one more for In re Lopez (see here and here).
  • Strong and Lewis actions. August’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 — continued to occupy court conference time. The court granted review in two cases and transferred them back to the Courts of Appeal for reconsideration in light of Strong and it dismissed review in one Strong grant-and-hold, one Lewis grant-and-hold, and one case that was a grant-and-hold for both Strong and Lewis. Six grant-and-hold cases were sent back for reconsideration: a Strong and Lewis grant-and-hold will be reconsidered in light of, of course, Strong and Lewis; five Lewis grant-and-holds will be reconsidered — one in light of Lewis and Strong, three in light of Lewis alone, and one in light of Senate Bill 775 (see here). We were wrong when we thought the court had already taken care of the last of the many Lewis grant-and-holds. (See here.)

Supreme Court will hear follow-up to its Tirado decision on sentence enhancements

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).

Supreme Court will hear ICWA case

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

  • The fish and the bees, an explanation what a review denial doesn’t mean, and Justice Guerrero’s first dissent.
  • ICWA. The court granted review in In re Dezi C., a dependency case raising a recurring issue about compliance with the federal Indian Child Welfare Act. The grant comes as the U.S. Supreme Court weighs whether to strike down the Act itself in Haaland v. Brackeen. In its published Dezi C. opinion, the Second District, Division Two, Court of Appeal, held to be harmless the failure by the Los Angeles Department of Children and Family Services to conduct a required initial inquiry whether the children at issue had American Indian heritage. Division Two reported that “California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless” and then said, “we propose a fourth rule . . . and explain why we respectfully decline to adopt any of the three previously formulated rules.”
  • Compensation for the wrongly convicted. The court dumped two cases, the fully briefed Souliotes v. California Victim Compensation Board (see here) and Larsen v. California Victim Compensation Board, which was a grant-and-hold for Souliotes (see here). The Court of Appeal opinions in the cases conflicted concerning whether certain federal court findings were sufficient to require state compensation for wrongly convicted persons. The Souliotes court ruled against compensation and the Supreme Court sent the case back with directions to reconsider in light of Senate Bill No. 446 (Stats. 2021, ch. 490, § 1), which made it easier to qualify for compensation, and Senate Bill No. 632 (Stats. 2022, ch. 133, § 1(a)), which appropriated compensation for five specific individuals, including $841,820 for Mr. Souliotes. In Larsen, where the appellate court held in favor of compensation, the Supreme Court dismissed review. Horvitz & Levy was co-counsel for Mr. Souliotes in the Supreme Court.
  • Personal jurisdiction. After the Second District, Division Six, summarily denied a writ petition challenging a superior court order finding specific personal jurisdiction, the Supreme Court in Jungheinrich AG v. Superior Court ordered the appellate court to issue an alternative writ, which will require a written decision on the merits.
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds:  one more waiting for the finality of the decision in People v. Tran, which filed late last month; two more waiting for People v. Lynch (see here); one more holding for People v. Delgadillo (see here), which will be argued in 11 days; one more holding for People v. Espinoza (see here); and one more holding for People v. Prudholme (see here).
  • Strong grant-and-transfers. The court granted review in five cases and transferred them back to the Courts of Appeal for reconsideration in light of last month’s decision in People v. Strong (2022) 13 Cal.5th 698.

Supreme Court to decide forum selection case [Updated]

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

  • Forum selection: The court agreed to hear Gerro v. BlockFi Lending LLC, but only part of the case. In a lawsuit involving a loan collateralized by bitcoin, the court limited the issue to be briefed and argued to: “Did the Court of Appeal correctly hold that this action must remain in California despite the contractual forum selection clause?” Uncommonly for a civil case, review comes after an unpublished opinion, this one by the Second District, Division One, Court of Appeal. Also atypical for a review grant, the court was not unanimous — Justice Goodwin Liu did not vote for review. Division One ruled against enforcing a Delaware forum selection clause because the clause included a predispute jury waiver and because “California has a fundamental policy against such a waiver,” a policy that “could be violated if [the case] were heard in Delaware.” In July, the Supreme Court granted-and-transferred a different forum selection clause case from another Court of Appeal. (See here.) [December 1 update: One of the defendants filed a notice of bankruptcy stay and the court entered an order that the “notice operates as an automatic stay in this proceeding.” Meanwhile, the plaintiff filed a motion to dismiss review.]
  • Unusual disposition and weird partial publication order. The court granted review in In re Z.O. and sent the case back to the Fourth District, Division Three, “with directions to vacate its decision, allow further briefing, and reconsider the appropriate disposition in light of [three Court of Appeal opinions].” The Division Three partially published opinion had “conditionally affirmed” a dependency court order, remanded the matter for further action on issues concerning a guardian ad litem appointment and the Indian Child Welfare Act, and said, “should the trial court make express findings that a GAL was required at the time of the appointment, and should it find ICWA inapplicable, our affirmance resolves the case.” That doesn’t seem to fit any of the possible dispositions under Code of Civil Procedure sections 43 and 906. Vacating the decision depublishes the opinion (see here), which is just as well, because the appellate court’s partial publication order is weird. Usually, such orders identify only entire sections of an opinion that are to be unpublished, but the Z.O. order picks out paragraphs, sentences within paragraphs, and even words and phrases within sentences for nonpublication.
  • Covid statute of limitations. The court denied review in Committee for Sound Water and Land Development v. City of Seaside, where the Sixth District published opinion held causes of action under the California Environmental Quality Act were time barred. The appellate court construed Judicial Council actions adopting an emergency rule at the beginning of the Covid pandemic that tolled civil statutes of limitations and later cutting back on that tolling for short limitations periods, like the ones for CEQA lawsuits. The Sixth District rejected arguments that, as it summarized, “the shortened limitations period provided by [the tolling reduction] was unreasonable and arbitrary, constitutes an improper ex post facto law that cut off the [plaintiff’s] access to courts, and the Judicial Council’s choice of August 3, 2020, as the end of the tolling period was improperly influenced by lobbyists.” Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, most probably because they are, respectively, the chair and a member of the Judicial Council, which issued and amended the emergency rule.
  • Covid required remote appearance. The court denied review in People v. Whitmore. The Fourth District, Division Three, published opinion refused to reverse a conviction based on a defendant’s claim that his right to be present in court was violated by requiring him — because of a jail lockdown due to a Covid outbreak — to appear by videoconference at a December 2020 hearing on posttrial motions and sentencing. Noting that “the trial court had to balance Whitmore’s right to be physically present against the need to minimize the danger created by the spread of a contagious disease,” Division Three concluded that the remote appearance “during a historic public health crisis did not thwart the fairness of the proceeding.” The court did find the forced virtual appearance did violate statutory law, but said the violation was harmless. “The fact of the matter, as confirmed by reliable medical and scientific data,” the court stated without citation, “is that the COVID-19 pandemic prevented trial courts throughout California from holding in-person hearings safely in December 2020.” The court denied review in a similar case in July. (See write-up of People v. Churchill here.) Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, most probably because they are, respectively, the chair and a member of the Judicial Council, which adopted an emergency rule allowing for remote criminal proceedings if the defendant consents, which Whitmore did not.
  • Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more waiting for the finality of the decision in People v. Tran, which filed late last month; two more waiting for People v. Lynch (see here); one more waiting for both Tran and Lynch; two more waiting for People v. Curiel (see here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; and one more holding for People v. Ramirez (see here), which was argued last week.
  • Criminal case grant-and-transfer: The court granted review in one matter and sent the case back to the Court of Appeal for reconsideration in light of last month’s decision in People v. Strong (2022) 13 Cal.5th 698. The remittitur issued just yesterday in Strong. In the coming weeks, the court will likely be getting rid of a lot of Strong grant-and-holds.
  • New-legislation remand: The court granted a pro per’s petition for review in In re Wade and transferred the case back to the Third District for issuance of an “order to show cause why petitioner is not entitled to a new sentencing hearing in light of Senate Bill No. 567.” (Link added.) The appellate court had summarily denied the habeas corpus petition without prejudice, saying, “petitioner retains a potential remedy by direct appeal, and habeas corpus is not a substitute for appeal.”
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