Tag: Weekly conference reports

At yesterday’s conference, the Supreme Court granted review in two COVID insurance coverage cases (see: Supreme Court takes two more COVID insurance cases; one, from the Ninth Circuit, is a grant-and-hold). Otherwise, things were fairly quiet. Non-COVID actions of note included:

• SVP placement. The court denied review in People v. Superior Court (Cheek) over the dissenting recorded vote of Justice Goodwin Liu. Justice Kelli Evans was recused. A 2-1 published opinion by the Sixth District Court of Appeal overturned an order conditionally releasing a sexually violent predator because his placement was in a residence within a statutorily prohibited quarter mile of a “public or private school.” The opinion summarized the bases for the superior court’s decision — “the school in question is a private home school that did not exist until after the community was notified of Cheek’s pending release — suggesting the school was created for the very purpose of preventing placement in that area.” The appellate justices all agreed that the timing of the school’s creation didn’t negate the statutory bar; “it is for the Legislature to remedy any perceived loophole, not the courts,” the opinion said. The dispute was whether a home school qualifies as a “public or private school” under the statute. The majority said “the text of the statute does not support an intention to limit its application based on school size or character.” The dissent, on the other hand, claimed “the majority’s definition of ‘any public or private school’ as encompassing any private home in which the residents elect to home school their children to be inconsistent with both the plain language of the statute and the Legislature’s balancing of competing interests.”
• Criminal case grant-and-holds. There were four criminal case grant-and-holds, two more each waiting for decisions in People v. Lynch (see here) and People v. Reyes (see here), which will be argued next week.
• More Delgadillo grant-and-hold disposals. The court continued its disposal — apparently alphabetical (see here) — of grant-and-holds that had been waiting for the December decision in People v. Delgadillo (2022) 14 Cal.5th 216. In 30 cases from People v. Goethe to People v. Taylor, the court dismissed review in three and transferred 27 with orders stating, the “matter is transferred to the Court of Appeal . . . with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.”
• Non-Delgadillo disposals. The court granted review in one case and sent it back to the Court of Appeal for reconsideration in light of January’s opinion in People v. Espinoza (2023) 14 Cal.5th 311. In three cases that were grant-and-holds for the November decision in People v. Henderson (2022) 14 Cal.5th 34, the court dismissed review in two and sent one back for reconsideration.

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

• Enhancement dismissal. The court agreed to hear People v. Walker and it limited the issue to: “Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?” (Links added.) The Second District, Division Two, Court of Appeal’s partially published opinion answered “yes.” However, it concluded that, even under the defendant-friendly standard, the superior court did not abuse its discretion in denying the defendant’s motion to dismiss two sentence enhancements.
• CEQA depublication. The court granted a request to depublish the First District, Division Four, opinion — originally unpublished — in Saint Ignatius Neighborhood Association v. City and County of San Francisco. There was no petition for review. Division Four held San Francisco erroneously concluded a high school’s proposal to install four 90-foot light standards in the school’s athletic stadium was exempt from review under the California Environmental Quality Act.
• More ICWA grant-and-holds.  In re An. L. and In re Athena R. are two more grant-and-holds for In re Dezi C., where the court agreed last September 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. An. L. comes after an unpublished opinion from the Second District, Division Eight, which found the child protection agency and the juvenile court both violated state law, but found the errors harmless. In Athena R., the Second District, Division One, unpublished opinion similarly found harmless any error by the agency in failing to comply with state law.
• Criminal case grant-and-holds. There were five criminal case grant-and-holds: two more waiting for a decision in People v. Lynch (see here); one more holding for In re Vaquera (see here), which has been fully briefed for almost three years; one more holding for People v. McDavid (see here); and one more waiting for People v. Mitchell (see here).
• Grant-and-hold disposals. The court offloaded 15 grant-and-holds that had been waiting for the December decision in People v. Delgadillo (2022) 14 Cal.5th 216. Review was dismissed in one. Fourteen were transferred to the Courts of Appeal with orders saying, the “matter is transferred to the Court of Appeal . . . with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.” The chambers of Justice Joshua Groban, Delgadillo‘s author and the one responsible for recommending dispositions of the grant-and-holds (see here), is apparently working its way through the held cases alphabetically; today’s orders came in cases titled People v. Aguilar through People v. Faumui.

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

• Court allows clemency for one, returns files to be redacted for four others.
• Bail. The court agreed to hear In re Kowalczyk and limited the issues to: “(1) Which constitutional provision governs the denial of bail in noncapital cases – article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution – or, in the alternative, can these provisions be reconciled? (2) May a superior court ever set pretrial bail above an arrestee’s ability to pay?” In its landmark In re Humphrey (2021) 11 Cal.5th 135 decision (see here), the court declined to address the first issue (id. at p. 155, fn. 7), but it later teed up the issue by granting review in Kowalczyk and sending it back with directions to answer the unresolved question. The resulting First District, Division Three, published opinion holds the two constitutional provisions can be reconciled and “both sections govern bail determinations in noncapital cases.” The court further concluded, “This means that section 12’s general right to bail in noncapital cases remains intact, while full effect must be given to section 28(f)(3)’s mandate that the rights of crime victims be respected in all bail and OR release determinations. In so concluding, we reject any suggestion that section 12 guarantees an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.” In other words, although Humphrey held “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” setting unaffordable bail is appropriate when pretrial detention is warranted. Division Three disagreed with the Second District, Division Seven, opinion in In re Brown (2022) 76 Cal.App.5th 296, of which the Supreme Court considered granting review on its own motion, but decided not to (see here).
• Resentencing. The court granted the Attorney General’s petition for review in People v. Arellano to resolve a conflict between the Sixth District’s published opinion in the case and the First District, Division Five’s opinion in People v. Howard (2020) 50 Cal.App.5th 727. The cases concern resentencing a defendant whose felony-murder conviction is tossed under subsequent legislation narrowing the felony-murder rule. Specifically, the issue is whether a court, when resentencing for the felony underlying the vacated felony-murder conviction, can include an enhancement related to the underlying felony. The Sixth District said “no” (concluding that the pertinent statute’s plain language “does not authorize enhancements to be attached to the redesignated conviction for resentencing”), but the Howard court said “yes.” The Supreme Court denied the defendant’s petition for review in Howard.
• PAGA arbitration. The court granted a depublication request in Lewis v. Simplified Labor Staffing Solutions, Inc. There was no petition for review. The Second District, Division Eight, opinion side-stepped an issue pending before the Supreme Court in Adolph v. Uber Technologies, Inc., i.e., “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” (See here, here, and here.) After accepting the parties’ agreement that the plaintiff employee’s individual PAGA claims must be arbitrated, Division Eight said, “We need not decide whether an arbitration agreement can require that non-individual PAGA claims be arbitrated because the arbitrator must decide whether the . . . arbitration agreement calls for such arbitration at all.”
• Government immunity. Conway v. San Diego City Employees’ Retirement System is a grant-and-hold for Leon v. County of Riverside, which will be argued next month. Leon is expected to answer, is immunity under Government Code section 821.6 limited to actions for malicious prosecution? (See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710.) The Fourth District, Division One, unpublished Conway opinion held a retirement system was immune from liability — under section 821.6 and other statutes — for taking away a retired police officer’s disability benefits after he took another job based on alleged assurances that doing so wouldn’t jeopardize his benefits.
• Appeal timeliness: Following an Attorney General concession in the habeas corpus proceeding In re Harper, the court granted “petitioner’s request for constructive filing of his late notice of appeal from the denial of his resentencing petition” and directed the Fourth District, Division One, “to consider the merits of petitioner’s appeal as though a timely notice of appeal had been filed in the first instance. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7; Cal. Rules of Court, rule 8.528(d); In re Benoit (1973) 10 Cal.3d 72.)” In an unpublished opinion, Division One had dismissed the appeal because the petitioner “did not diligently seek constructive filing of a notice of appeal.”
• New evidence. In In re Johnson, 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).)” The Second District, Division Four, had summarily denied an earlier habeas petition in an order stating that the petitioner’s claims had been “raised and rejected on appeal as well as in a prior habeas petition” and that the petitioner had “present[ed] no evidence that fundamentally undermines the entire prosecution case and points unerringly to innocence or reduced culpability. (In re Bell (2007) 42 Cal.4th 630, 637.)”
• Jury trial waiver. The court denied review in Conservatorship of C.O. over the recorded dissenting vote of Justice Goodwin Liu. In an unpublished opinion (Conservatorship of C.O. (Dec. 15, 2022, No. H048150) 2022 WL 17687411), the Sixth District dismissed as moot an appeal from an order renewing a since-concluded conservatorship under the Lanterman-Petris-Short Act. The appellate court noted it had previously published an opinion — Conservatorship of C.O. (2021) 71 Cal.App.5th 894 — rejecting the same arguments the conservatee had made in challenging an earlier conservatorship renewal, holding that a failure to personally advise the conservatee of his right to a jury trial was harmless error and that a conservatee’s attorney can waive a jury trial on the conservatee’s behalf.
• Criminal case grant-and-holds. There were six criminal case grant-and-holds: three more waiting for a decision in People v. Lynch (see here); one more holding for People v. Williams (see here), in which party briefing was completed in July 2021; one more waiting for Camacho v. Superior Court (which is technically a civil case, involving a civil commitment under the Sexually Violent Predators Act (see here)); and one more on hold for People v. Faial (see here).
• Delgadillo transfers. The court granted review in People v. Grissom and People v. Vinson, and sent the cases back to the Courts of Appeal “with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.” (See here.)

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

• Supreme Court will answer big-ticket COVID insurance question for the Ninth Circuit.
• Effective counsel. The court agreed to hear People v. Carter and it limited the issue to: “Did the trial court deprive defendant of effective assistance of counsel by failing to appoint substitute counsel to evaluate and potentially argue defendant’s pro. per. motion to dismiss after appointed counsel refused to consider the motion based on an asserted conflict in arguing her own ineffective assistance of counsel?” The motion to dismiss was based on the defendant’s claim that his right to a speedy trial had been violated, for which he blamed in part his appointed counsel whom he also sought to replace. At the time of the motion, the defendant had spent 12 years in a state hospital awaiting the adjudication of a petition to commit him as a sexually violent predator. A divided Third District Court of Appeal, in a published opinion, affirmed an order committing the defendant, concluding that the trial delay resulted from his counsel’s “tactical decision . . . for defendant to complete sex offender treatment . . . before requesting trial” and that, “[b]y filing a Marsden motion [to disqualify his attorney] with a motion to dismiss, defendant attempted to create a conflict of interest by disagreeing with the tactic that the record indicates he had previously assented to.” The tactical decision did not support the Marsden motion, the majority held, and the defendant “may not obtain what he failed to achieve at the Marsden hearing by narrowing the request to appointment of new counsel solely to evaluate and potentially pursue a specific motion [to dismiss].” A limited-scope attorney means the “defendant would be simultaneously represented by two lawyers, one of whom is against the other.” The dissent asserted that “[t]he trial court violated defendant’s statutory right to counsel . . . when it left defendant unrepresented as to the motion to dismiss, even though he was otherwise represented by appointed counsel.”
• Gun control. The court denied review in People v. Velez, but it depublished the Fifth District’s partially published opinion as requested by six county public defenders. The (previously) published part of the opinion, although rejecting a challenge to a charge of carrying a loaded firearm in public as an active gang participant, found to be “clearly unconstitutional” under the U.S. Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. _ [142 S.Ct. 2111] California statutes that generally require a showing of “[g]ood cause,” among other things, before a local law enforcement officer may issue a concealed-carry firearm license. The appellate court concluded that “the ‘good cause’ condition is severable [and] California’s licensing scheme remains valid post-Bruen.” It then added that, by the way, the defendant had no standing to challenge the licensing scheme because he never applied for and was denied a license and, at the time of the crimes, he was too young to lawfully acquire a gun.
• Another ICWA grant-and-hold.  In re D.D. is another grant-and-hold for In re Dezi C., where the court agreed last September 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. The Second District, Division Eight, 2-1 unpublished opinion in D.D. found an inadequate inquiry was harmless error because “there is no reason to believe there is readily available information that is likely to bear meaningfully on whether the boys [who are the subject of the dependency proceeding] have Indian ancestry.”
• Criminal case grant-and-holds. There were two criminal case grant-and-holds:  one more waiting for a decision in People v. Rojas (see here) and one holding for both People v. Lynch (see here) and People v. Salazar (see here).

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

• Tax case . . . or not. The court granted review in Morgan v. Ygrene Energy Fund, Inc., where the Fourth District, Division One, Court of Appeal published opinion upheld dismissal of a lawsuit for failure to exhaust property tax administrative remedies. But the plaintiffs didn’t sue any taxing authorities, or any public entity for that matter. The case concerns financing for anti-climate-change improvements to the plaintiffs’ homes under California’s Property Assessed Clean Energy program. Over-simplifying a bit, the improvements were made by the defendant for-profit companies, funded by loans backed by municipal bonds that the companies had bought, and the loans were repaid by property tax assessments on the plaintiffs’ homes. The plaintiffs — all seniors — alleged violations of, among other things, Civil Code section 1804.1(j), which prohibits a seller from taking a security interest in the primary residence of anyone over 65 years old. Although saying “[t]he liability theories are intriguing,” Division One resisted addressing the merits of the lawsuit, relying solely on the exhaustion-of-remedies issue.
• Druid rights. Acting on a pro per habeas corpus petition, In re Rupe, the court ordered a hearing in superior court to determine whether the prisoner is “entitled to relief on the grounds: (1) preventing him from eating and purchasing pork products while participating in the Religious Meat Alternate Program (Cal. Code Regs., tit. 15, § 3054.4) violates the Religious Land Use and Institutionalized Persons Act, the free exercise clauses of the state and federal Constitutions, and Penal Code sections 2600 and 5009; and (2) providing Jewish and Muslim inmates with free accommodation for their religiously mandated diets (see Cal. Code Regs., tit. 15, §§ 3054.4, 3054.5), while not providing such accommodation to inmates practicing Druidry, violates the equal protection clauses of the state and federal Constitutions.” (Link added.) Justice Joshua Groban was the only justice who did not vote to issue an order to show cause.
• Time to appeal. Richmond Shoreline Alliance v. City of Richmond is a grant-and-hold for Meinhardt v. City of Sunnyvale, which will decide whether the time to appeal starts when the superior court enters an order denying a petition for writ of administrative mandamus or on the later filing of a judgment that restates what was in the order (see here). In an unpublished memorandum opinion (see here), the First District, Division Five, held it’s the former and dismissed the appeal in Richmond Shoreline Alliance as untimely.
• Mayhem. The court denied review in People v. Lezama over the dissenting recorded vote of Justice Groban. A divided unpublished opinion by the Second District, Division Six, held substantial evidence supported a mayhem conviction based on the infliction of multiple close-range fatal gunshot wounds, including the necessary evidence of a permanent disfiguring injury to a live victim. The majority found “sufficient evidence” that the victim “was alive after he was shot multiple times,” but nonetheless said, “we express our concern regarding the propriety of charging mayhem under these circumstances where the victim died shortly after injury and the defendant was also charged, and ultimately convicted of, murder for the same acts supporting mayhem.” The concern was that the conviction “stretches the rationale and intended purpose behind criminalizing mayhem, which is to preserve and protect the appearance and integrity of the victim’s person.” The dissent asserted that when the victim “died within the hour of the shooting . . . [t]he potential mayhem conviction died with him.”
• Factual innocence. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in People v. O’Day. A 2-1 published opinion by the First District, Division Three, affirmed the denial, as untimely, of a petition for a finding of factual innocence that was filed 12 years after a magistrate dismissed murder charges against the defendant following a preliminary hearing. The majority concluded the superior court didn’t abuse its discretion in finding a lack of the statutorily required “good cause” for the filing delay, but the dissent “would interpret good cause more generously than do my colleagues,” asserting that “good cause excuses the decade-long delay attributed to petitioner being unaware that California law allows for such a thing as a petition for factual innocence, or indeed that the law offers any potential remedy for the difficulties his arrest continues to cause.”
• Vaccine mandate. The court denied a request to depublish the Fourth District, Division One, opinion in Let Them Choose v. San Diego Unified School District. Division One held a school district could not require COVID vaccinations for students over 15 years old when the Legislature has not enacted such a mandate. It agreed with the superior court that “there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates.’ ”
• Criminal case grant-and-holds. There were two criminal case grant-and-holds: Another one waiting for a decision in People v. Reyes (see here) and one on hold for both People v. Lynch (see here) and People v. Catarino (see here).

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

• Supreme Court won’t open file of clemency request it denied in 2018
• Out-of-state arbitration. The high-profile litigation between the Dentons law firm and one of its former partners (see here and here) returns to the court after the grant of review in Zhang v. Superior Court. The procedural question is whether the former partner can continue his case in a California court as opposed to having the dispute arbitrated in New York as Dentons prefers. The former partner relies on Labor Code section 925, which bars requiring an employee “who primarily resides and works in California” to agree “to adjudicate outside of California a claim arising in California,” while Dentons filed a motion under Code of Civil Procedure section 1281.4, which requires staying California litigation when another state’s court “has ordered arbitration of a controversy which is an issue involved in” the litigation. The Second District, Division Eight, Court of Appeal’s published opinion sided with Dentons, at least preliminarily, concluding that “the parties delegated questions of arbitrability to the arbitrator” and that one of those questions for the New York arbitrator is whether the former partner “is an employee who may invoke Labor Code section 925 and require the merits of the dispute to be resolved in California instead of New York.” Division Eight had previously summarily denied the former partner’s writ petition, but the Supreme Court directed the appellate court to issue an order to show cause. (See here.)
• SVPA jury waiver. The court granted review in People v. Cannon, where the published part of a First District, Division Five, partially published opinion found a potential equal protection violation in not requiring a personal jury trial waiver from a defendant subject to civil commitment under the Sexually Violent Predator Act when a personal waiver is required in commitment proceedings for those alleged to be mentally disordered offenders or who plead not guilty by reason of insanity. Because the equal protection issue wasn’t raised in the superior court, Division Five did, however, find a remand necessary “to give the People a meaningful opportunity to demonstrate a valid constitutional justification for the SVP’s differential legislative treatment.” (Related: concurrence argues for different equal protection analysis.)
• Brown Act violation. The court denied review in G.I. Industries v. City of Thousand Oaks, but it depublished the Second District, Division Six, opinion overturning a city council’s finding that a project was exempt from the California Environmental Quality Act. Division Six concluded the council had violated a part of the Brown Act by not specifically listing the finding on the council’s agenda for its public meeting. Approval of the project itself — an exclusive solid waste franchise agreement — was put on the agenda, but the appellate court held “[t]he CEQA exemption involved a separate action or determination by the City and concerned discrete significant issues of CEQA compliance.”
• Defendant not present. Justices Carol Corrigan and Joshua Groban recorded dissenting votes from the denial of review in People v. Pereira after a divided unpublished opinion by the Fourth District, Division Two, found to be harmless beyond a reasonable doubt the trial court’s ex parte communications with the jury when the jury indicated it was deadlocked on one count. The dissent believed it to be “plausible that, absent the trial court’s improper communications, at least one juror would not have switched from acquittal to conviction.”
• Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more holding for a decision in  People v. Williams (see here); one more waiting for People v. Lynch (see here); one more holding for People v. Burgos (see here); and one holding for Burgos, People v. Rojas (see here), and People v. Hardin (see here).
• Grant-and-hold disposals, including disposal of an old one.  The court took three grant-and-holds off its docket. One — People v. Hutchinson — was a grant-and-hold since July 2020. It was on hold for a decision in People v. Lopez, but the court transferred Lopez to the Court of Appeal for reconsideration in light of Senate Bill 775. Although the Lopez transfer occurred in November 2021 (see here), it wasn’t until yesterday that Hutchinson was transferred to the Court of Appeal for reconsideration in light of that same legislation, SB 775. Hutchinson’s appeal concerns the denial of his resentencing petition, which was filed over four years ago; he received a 20-year, eight-month sentence in 2017. The court dismissed review in the other two grant-and-holds, which had been waiting for the December decision in People v. Ramirez (2022) 14 Cal.5th 176 (see here).

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

• Four-justice concurring statement leaves open future remedies for defendant who made “disastrous decisions” at trial
• Employment timekeeping. The court agreed to hear Camp v. Home Depot U.S.A. The Sixth District Court of Appeal published opinion held an employee might have a claim for unpaid wages where his employer rounded the amount of time he worked for payment purposes even though it recorded his time to the minute. The appellate court said it was following “guidance and direction” by the Supreme Court’s decisions in Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 (see here) and Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58 (see here) and was “reexamin[ing]” the Fourth District, Division One, opinion in See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889. One justice wrote a concurring opinion “to explain why I believe the majority’s decision today is a clear departure from See’s Candy . . . and more fully explain why that departure is appropriate under current California law.” The Supreme Court denied a petition for review and a depublication request in See’s Candy. (Horvitz & Levy filed the answer to the petition in See’s Candy.)
• Economic loss rule. The court granted-and-held Dhital v. Nissan North America, which is now another case waiting for a decision in Rattagan v. Uber Technologies, Inc.. In Rattagan, the court is expected to answer the Ninth Circuit’s question, “Under California law, are claims for fraudulent concealment exempted from the economic loss rule?” The Ninth Circuit described the rule as “a doctrine that prevents a party to a contract from recovering economic damages resulting from breach of contract under tort theories of liability.” The First District, Division Four, published opinion in Dhital held plaintiffs could proceed on their lawsuit concerning an allegedly defective transmission in a used car they had purchased because “the fraudulent inducement exception to the economic loss rule applies.”
• Lemon law. Another grant-and-hold is Figueroa v. FCA US LLC. That case is back-burnered for Niedermeier v. FCA US LLC, which raises the issues (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 Six, published opinion in Figueroa disagreed with the Second District, Division One, published opinion in Niedermeier and held that a truck manufacturer was not entitled to a credit on the judgment against it for the amount of money the plaintiff received when he sold his defective truck that exceeded what he owed on the loan to buy the truck. (Horvitz & Levy filed the petition for review and is appellate counsel for FCA US in Figueroa.) Niedermeier has been fully briefed for more than a year and the court has not yet issued an oral argument letter.
• Covid insurance. The court denied a request to depublish the First District, Division Four, opinion in Amy’s Kitchen, Inc. v. Fireman’s Fund Insurance Co., which said the superior court correctly sustained an insurance carrier’s demurrer, but for the wrong reason, and also held the insured was entitled to amend its complaint to show its claim came within its policy’s “communicable disease event” coverage. The Supreme Court has so far steered clear of Covid insurance cases, but it might take one on soon by agreeing to answer a coverage question posed by the Ninth Circuit in Another Planet Entertainment, LLC v. Vigilant Insurance Company. (See here).
• Criminal case grant-and-holds. There were three criminal case grant-and-holds:  one each waiting for decisions in People v. Lynch (see here), People v. Rojas (see here), and Needham v. Superior Court (see here).

The Supreme Court was civil-minded at its conference today, granting review in two civil cases. Actions of note included:

• $2,500,000 sanctions award. The court agreed to hear City of Los Angeles v. PricewaterhouseCoopers, where a divided published opinion by the Second District, Division Five, Court of Appeal reversed an award of $2,500,000 in sanctions that was imposed for discovery abuses. Justice Joshua Groban was recused. The Division Five majority held that the two provisions in the Civil Discovery Act under which the defendant had moved for the sanctions did not allow for imposition of monetary sanctions. The dissent disagreed with the statutory interpretation and also said, “This case presents a record of egregious discovery abuse that is unmatched in my experience.” The majority opinion did, however, order a remand for further consideration of possible sanctions under “other provisions of the Discovery Act” that do authorize imposition of “some amount of monetary sanctions.”
• Default. The court also granted review in California Capital Insurance Company v. Hoehn. Uncommon for a straight grant of review in a civil case, the Court of Appeal opinion (by the Third District in this case) is unpublished. The appellate court held the defendant’s motion to vacate a nine-year-old, valid-on-its-face default judgment based on lack of proper service was untimely. Instead, the court held, the defendant should have filed an independent action in equity. The Third District agreed that Code of Civil Procedure section 473, subdivision (d), doesn’t state a time limit for a motion to set aside a void judgment that is valid on its face, “[b]ut,” the court said, “case law does.”
• PAGA arbitration. The court granted-and-held in Silva v. Dolgen California, LLC, another case that is now waiting for a decision in Adolph v. Uber Technologies, Inc. The court granted review in Adolph last summer and limited the issue to: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” In Silva, the Fourth District, Division Two, in an unpublished opinion, relied on its decision in Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595 and held “the trial court erred in denying [the defendant’s] motion to arbitrate plaintiffs’ individual Labor Code claims; however, it correctly denied arbitration of their representative PAGA claim because plaintiffs were acting in different capacities and asserting different rights.” The Supreme Court denied review in Gavriiloglou two weeks ago.
• Patient confidentiality. Justice Leondra Kruger recorded a dissenting vote from the denial of review in Vigil v. Muir Medical Group IPA, Inc. In a published opinion, the First District, Division Two, affirmed the denial of class certification in an action under the Confidentiality of Medical Information Act alleging the defendant should have prevented a former employee from downloading private medical information of over 5,000 patients. Division Two said the “allegations raise questions regarding breach of confidentiality and causation that necessarily require individualized inquiries regarding many, if not all, of the putative class members.” The appellate court concluded a health care provider is not liable “for the release of confidential information without a showing that an unauthorized party viewed the information.”
• Gender equal protection. The court issued an order to show cause, returnable in the Court of Appeal, on the pro per’s habeas corpus petition in In re Galzinski. The issue is whether the Department of Corrections and Rehabilitation’s “policy prohibiting general population male inmates access to certain products specified in the petition while allowing access to those same products to general population female inmates violates the equal protection clauses of the state and federal Constitutions. (Cal. Const., art. I, § 7, subd. (a); U.S. Const., 14th Amend.)”
• Criminal case grant-and-hold. There was just one criminal case grant-and-hold. The case is another one waiting for a decision in People v. Lynch (see here).
• Grant-and-hold disposal. The court dismissed review in Howard Jarvis Taxpayers Association v. Bay Area Toll Authority, which had been waiting (see here) for the August decision in Zolly v. City of Oakland (2022) 13 Cal.5th 780. In the Bay Area Toll case, the First District, Division Two, published opinion rejected a challenge to a toll increase — approved by 55 percent of the voters, not a two-thirds vote as the plaintiffs claimed was required — for seven Bay Area bridges.

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

• Pre-plea advisement. The court will hear In re Tellez, where a Fourth District, Division One, Court of Appeal published opinion held a defendant’s counsel didn’t render ineffective assistance by failing to advise that a guilty plea could lead to a lifetime civil commitment as a sexually violent predator after service of a prison sentence. This is the second grant of review in the case. Eleven months ago, the Supreme Court directed Division One to issue an order to show cause after the appellate court had summarily denied the defendant’s habeas corpus petition, even though the denial was explained in a detailed order. In the opinion, as in its earlier summary denial order, Division One relied on its own recent decision in People v. Codinha (2021) 71 Cal.App.5th 1047, of which the Supreme Court denied review. When the court first granted review in Tellez, we wrote, “Maybe Tellez is a better vehicle for the issue than Codinha. (See here.)” In November, the court heard a case — People v. Espinoza (see here) — about a defendant not understanding immigration consequences of a plea.
• Another ICWA grant-and-hold. In re M.G. is another grant-and-hold for In re Dezi C., where the court agreed last September 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. In M.G., the Second District, Division Four, unpublished opinion found harmless error in an agency’s “fail[ure] to conduct an appropriate inquiry into [a mother’s sons’] possible Native American heritage.”
• Transfer from juvenile court. The court granted review in People v. Camarillo and sent the case back to the First District, Division Five, for reconsideration in light of Assembly Bill 2361, legislation enacted last year to require a juvenile court to find by clear and convincing evidence that a minor is not amenable to rehabilitation under the juvenile court’s jurisdiction before transferring the minor to adult criminal court and to require a transfer order to state the reasons for the court’s determination of unamenability to rehabilitation. Division Five issued an unpublished memorandum opinion (see here) that did not address the AB 2361 issue.
• Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one each waiting for decisions in People v. Gray (see here), People v. Burgos (see here), People v. Lynch (see here), and People v. Salazar (see here).

Yesterday’s Supreme Court conference, a double one, was one of several firsts: the first conference of 2023, the first with Patricia Guerrero as chief justice, and the first for new Justice Kelli Evans. Also, the conference featured Justice Evans’s first dissenting vote. Conference actions of note included:

• Supreme Court accepts Ninth Circuit jail employment case.
• Parole eligibility. The court granted review in People v. Hardin, where the Second District, Division Seven, published opinion found an equal protection violation in the statutory parole eligibility scheme for serious offenses committed by young adults. If a person is sentenced to 25 years to life for crimes, including first degree premeditated murder, committed when they were under 26 years old, they are eligible for parole after a quarter century. But there is no such eligibility for that person if they were instead sentenced to life without possibility of parole. There’s “no rational basis” for that distinction, Division Seven said. The Supreme Court has denied review in several cases reaching a contrary conclusion. (See among others People v. Sands (2021) 70 Cal.App.5th 193; People v. Acosta (2021) 60 Cal.App.5th 769; In re Williams (2020) 57 Cal.App.5th 427.) Substantial though the issue might be, the court probably would have denied review in Hardin, too, had Division Seven agreed with those other cases. (Related: The Supreme Court doesn’t decide all important issues.) The court is poised to analyze a related disparity in parole eligibility in People v. Williams (see here). Justice Goodwin Liu has shown a continued interest in issues concerning parole eligibility for young adults (see here, here, and here), including filing two separate statements last year (see here and here).
• Justice Evans’s first dissent. The court denied review in People v. Machado, but Justice Evans joined Justice Liu in recording votes to grant. The published portion of the Second District, Division One, partially published opinion held it was OK for the superior court to reject the prosecution’s stipulation that the defendant was entitled to resentencing for a 1981 murder. The prosecution acted under a Los Angeles County District Attorney directive to not contest certain resentencing petitions in felony-murder cases. Division One said, “as with any other stipulation, the court must make its own determination of whether the matter to which the parties have stipulated is consistent with the law.” The votes on the Machado petition might be a sign that, and how, the court will divide when it decides another case involving the LA DA’s discretion — Association of Deputy District Attorneys for Los Angeles County v. Gascón (see here).
• Chocolate fraud. Justices Joshua Groban and Martin Jenkins recorded dissenting votes from the denial of review in Salazar v. Walmart, Inc., where the published opinion of the Fourth District, Division Two, reversed the dismissal on demurrer of a class action alleging Walmart’s sale of its “Great Value White Baking Chips” was deceptive because the product did not contain white chocolate. Division Two disagreed with a 2020 federal district court decision and concluded, “a reasonable consumer could reasonably be misled to believe that the chips are white chocolate chips, because the consumer would not be aware that the chips could be something else.” The same appellate panel also reversed dismissal of a similar lawsuit against Target regarding that store’s “White Baking Morsels.” (Published opinion here.) The Supreme Court yesterday denied the petition for review in that case without recorded dissent — Salazar v. Target Corp.
• DA DQ in BLM case. The court declined to hear People v. Lastra and also denied a request to depublish the opinion of the Second District, Division Six, which affirmed the grant of the defendants’ motion to recuse the county district attorney’s office from prosecuting the case. The defendants face charges concerning their protest march following the George Floyd murder. According to the opinion, the recusal was ordered because of the district attorney’s “well-publicized association with critics of the Black Lives Matter movement.” Division Six said it was “declin[ing] to substitute our judgment for that of a trial court familiar with the social, legal, and political dynamics of San Luis Obispo County.” [January 13 update: A San Luis Obispo Tribune editorial says the Supreme Court’s ruling was “the right call” and urges the Attorney General, who is now in charge of the case, to “end this politically motivated persecution.”]
• Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  two more waiting for a decision in People v. Lynch (see here), two holding for People v. Hardin (see above), and one more each on hold for People v. Curiel (see here), People v. Salazar (see here), People v. Rojas (see here), and People v. Mitchell (see here).