Another no-straight-grant conference

There were no straight grants at the Supreme Court’s conference yesterday, the third time that’s happened over the last four conferences. At those four conferences, the court has straight-granted review in just one case. Actions of note at yesterday’s conference included:

  • Supreme Court allows Scientology lawsuit to proceed in civil court rather than religious arbitration.
  • Supreme Court OKs commutation of long robbery sentence.
  • Economic loss rule: The court granted-and-held in Kia America, Inc. v. Superior Court, deferring action pending a decision in Rattagan v. Uber Technologies, Inc., which is expected to answer the Ninth Circuit’s question, “Under California law, are claims for fraudulent concealment exempted from the economic loss rule?” The Kia America case came to the court after the Fourth District, Division One, Court of Appeal summarily denied defendant Kia’s writ petition. According to Kia’s reply to the answer to the petition for review (the only document I found online), plaintiff agreed that the court should grant Kia’s petition for review, “correctly point[ing] out . . . this case involves facts different from — and far more common than — the facts at issue in Rattagan“, and “both parties agree that review in Rattagan alone is not likely to answer all the questions about application of the economic-loss rule that continue to plague courts and litigants in California.”
  • Moral turpitude. In Stroj on Discipline, the court ordered the State Bar “to consider whether a violation of 18 U.S.C. section 1955 (prohibiting illegal bookmaking businesses) is a crime of moral turpitude per se, whether or not ‘cheating’ is involved. (See In re Stroj on Discipline (Review Dept., Oct. 15, 2021, No. SBC-21-C-30446) p. 2.) Regardless of its conclusion on this legal issue, the State Bar is further directed to hold a hearing to consider whether the facts and circumstances underlying petitioner’s conviction of 18 U.S.C. section 1955 involve moral turpitude, and to report to this court regarding its review and recommendations.”
  • Pokémon no-go: The court denied review in Lozano v. City of Los Angeles, where the Second District, Division Three, in a published opinion, rejected the attempt of two former police officers to overturn their firings. They were terminated for ignoring a call to assist on a department store robbery in progress, instead playing the Pokémon Go video game. The former officers unsuccessfully argued that in-car video system evidence documenting their conduct was improperly used against them.
  • Criminal case grant-and-holds. There were five criminal case grant-and-holds: one more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), two holding for People v. Curiel (see here), and one holding for People v. Padilla (see here), which was argued last month.
  • Disposal of grant-and-holds. Six cases were sent back to the Courts of Appeal for reconsideration in light of recently enacted Senate Bill 483; two had been waiting for both the June decision in People v. Esquivel and for a decision in People v. Hernandez, which was itself transferred for reconsideration in light of SB 483, and four had been waiting for only Hernandez. The court dumped 12 cases that had been waiting for January’s opinion in People v. Tirado (2022) 12 Cal.5th 688; nine were transferred for reconsideration in light of Tirado and review was dismissed in the other three.

Supreme Court to review unpublished opinion on asbestos insurance coverage

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

  • Permission given to grant pardon for robbery convictions in the 1970’s.
  • Insurance exhaustion: When the court grants review, the Court of Appeal has usually issued a published opinion, especially in civil cases. Truck Insurance Exchange v. Kaiser Cement is an exception, where the court agreed to analyze one portion of the Second District, Division Four, 70-page unpublished opinion in the case. In granting review, the Supreme Court limited the issue to: “May a primary insurer seek equitable contribution from an excess insurance carrier after the primary policy underlying the excess policy has been exhausted (vertical exhaustion), or is equitable contribution from an excess insurance carrier available only after all primary policies have been exhausted (horizontal exhaustion)?” The Second District held that horizontal exhaustion applies, noting it is at odds with SantaFe Braun, Inc. v. Insurance Company of North America (2020) 52 Cal.App.5th 19 from the First District, Division Four. It said it “disagree[s] with SantaFe Braun that there is no distinction between multiple layers of excess insurance . . . and layers of primary and excess insurance.” The Supreme Court denied review in SantaFe Braun.
  • No class. The court granted a depublication request in Cirrincione v. American Scissor Lift, Inc. The previously published Third District opinion affirmed the denial of class certification in an employment case that included allegations about wage and meal-and-rest-break violations. There was no petition for review.
  • Bad search. The court denied review but granted a request to depublish the Third District’s opinion in People v. Rorabaugh. The appellate court reversed a first-degree murder conviction after finding a Fourth Amendment violation. Officers, executing a search warrant for the defendant’s home and vehicles there, seized defendant’s car that was not at his home but at a nearby property of another person.
  • Baby bar retake. In Wooten v. State Bar, the court is giving a law student a possible second shot at a fourth taking of the First-Year Law Students’ Exam. The court’s order says the student might not have been “provided with, and able to access, the correct remote exam information for the June 2020 First-Year Law Students’ Examination on the exam date.” The June 2020 test was used as a guinea pig for the subsequent postponed and remote bar exam.
  • Bail bond regulation: The court denied review in BBBB Bonding Corp. v. Caldwell, where the First District, Division One, published opinion held that statutes governing consumer credit contracts, including a notice-to-cosigner requirement, apply to bail bond premium financing agreements between a cosigner and the bail bond agent. (Horvitz & Levy filed the petition for review.) (Related: The Supreme Court doesn’t decide all important issues.)
  • Take home Covid. Ruling in yet another case on its pandemic docket, the court also declined to hear See’s Candies, Inc. v. Superior Court. The Second District, Division One, held in a published opinion that the exclusivity provision of the Workers’ Compensation Act did not bar a wrongful death action by an employee who contracted Covid because of her employer’s alleged failure to take adequate safety precautions and who then passed the disease to her husband, who died. The opinion concluded the death was “allegedly causally related to [the wife’s] alleged infection by the virus in the workplace, but . . . not derivative of that infection.” Unaddressed was whether there is “a duty of care to nonemployees infected with COVID-19 as a result of an employee contracting the disease at work.” Review was denied even though the appellate court said that “[e]mployer liability for COVID-19 exposure is a significant issue of law that is also of public interest.” (Related: The Supreme Court doesn’t decide all important issues.)
  • Criminal case grant-and-holds. There were nine criminal case grant-and-holds: seven more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), and one more holding for People v. Espinoza (see here).
  • Grant and transfer. The court granted review and transferred a case back to the Court of Appeal for reconsideration in light of Assembly Bill 333.
  • Disposal of grant-and-hold. Apparently because of habeas corpus relief granted by a lower court, the Supreme Court granted the defendant’s request for dismissal of review in a case that was on hold first for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 and then for the pending People v. Strong (see here).
  • Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)

Another no-straight-grant conference

For the second week in a row, the Supreme Court didn’t straight grant any petitions for review at its Wednesday conference. The conference was newly confirmed (here and here) Justice Patricia Guerrero’s first, and also the first since October with seven justices participating. Actions of note included:

A no-straight-grant Wednesday conference

There were no straight grants at the Supreme Court’s conference yesterday, with only six justices participating because newly confirmed Justice Patricia Guerrero has not yet been sworn in. But there were actions of note, including:

  • Second time’s the charm for LWOP clemency request.
  • Immunity for law enforcement: The court granted-and-held in Nelson v. Santa Barbara County Sheriff’s Office, deferring action pending a decision in Leon v. County of Riverside, which is expected to decide whether immunity under Government Code section 821.6 is limited to actions for malicious prosecution. Review was granted in Leon last August. The Second District, Division Six, Court of Appeal’s unpublished opinion in Nelson affirmed the dismissal of an action against the Santa Barbara Sheriff’s and District Attorney’s offices for, among other things, malicious prosecution, false imprisonment, and negligence. On the immunity issue, Division Six agreed with the concurrence in the Leon Court of Appeal opinion that “ ‘any correction to the Court of Appeal’s decades-old, expansive application of section 821.6 will have to come from our Supreme Court, rather than from us.’ ” Division Six had previously reversed the plaintiff’s involuntary manslaughter conviction, but, later, it also reversed a superior court finding the plaintiff was factually innocent of murder, a charge on which she won a jury acquittal.
  • Trespass remedy. The court denied review in Johnson v. Little Rock Ranch, but it depublished the Fifth District’s 2-1 opinion. Additionally, Justices Carol Corrigan and Leondra Kruger recorded votes to hear the case. The Court of Appeal affirmed a superior court ruling that the defendant had encroached on over 3 acres of the plaintiff’s property, but that, applying a laches defense, denied injunctive relief and fashioned an equitable remedy: the defendant was required to pay damages and undertake corrective action on the property and the plaintiffs were required to deed the disputed property to the defendant. The dissent said “[o]rdering private landowners to sell their property against their will to a trespasser is a profound power” that was unjustified in the case.
  • But I won in SCOTUS: The court denied the defendant’s petition for review in People v. Lange. He had won in the U.S. Supreme Court, which, in reversing a First District, Division Five, decision (People v. Lange (Oct. 30, 2019, No. A157169) 2019 WL 5654385, review denied), held that pursuit of a fleeing misdemeanor suspect did not categorically allow the police to enter a home without a warrant. (Lange v. California (2021) 141 S.Ct. 2011, 210 L.Ed.2d 486.) On remand, Division Five, in a published opinion, again affirmed the denial of the defendant’s suppression motion, concluding that, even though the police entry was illegal under the U.S. Supreme Court’s decision in the case, the “good faith” exception to the exclusionary rule precluded suppression because the police warrantless entry complied with then-binding state appellate law. One commentator — Professor Shaun Martin — noted about this case that the “good faith” exception greatly diminishes the incentive to challenge current law: “Winners get prospective relief — for others — but that doesn’t help them at all.”
  • Parole reversal: The court directed the First District, Division Four, to hear on the merits prisoner Larry Johnson’s habeas corpus petition and to issue an order to show cause “why the Governor did not abuse his discretion in reversing the Board of Parole Hearings’ September 2020 determination that petitioner was suitable for parole, and why the Board’s decision to grant parole should not be reinstated. (See In re Shaputis (2011) 53 Cal.4th 192; In re Lawrence (2008) 44 Cal.4th 1181; In re Pugh (2012) 205 Cal.App.4th 260, 266; but see In re Butler (2014) 231 Cal.App.4th 1521, 1533.)” Division Four had summarily denied the petition.
  • Denied briefing opportunity. In a rare ruling, the court granted review in Munoz v. PL Hotel Group and sent the case back to the Fourth District, Division One, for rehearing after supplemental briefing under Government Code section 68081. The statute proscribes a reviewing court from “render[ing] a decision in a proceeding . . . based upon an issue which was not proposed or briefed by any party to the proceeding [without] afford[ing] the parties an opportunity to present their views on the matter through supplemental briefing.” In response to a rehearing petition, Division One denied it had violated section 68081 because, it said, the dispositive issue — fraud in the execution of a contract — “was ‘ “fairly encompassed” ’ within the main issues at all relevant stages.” The Supreme Court’s order depublishes the appellate court’s opinion. (See here.)
  • Suspension of former judge: Two years ago, the court denied review of a Commission on Judicial Performance decision removing a Contra Costa County Superior Court judge from the bench. (See here.) Later, the court referred to the State Bar the former judge’s petition to end his suspension from law practice, a suspension that followed automatically from his removal. (See Cal. Const., art. VI, section 18(e).) Yesterday, the court denied the petition based on the State Bar’s recommendation.
  • Criminal case grant-and-holds. There were 4 criminal case grant-and-holds — three more holding for a decision in People v. Strong (see here) and one more holding for People v. Delgadillo (see here).

Supreme Court will hear challenge to local law that criminalizes leasing to unlicensed cannabis sellers

At the Supreme Court’s Wednesday conference, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, actions of note included:

  • Another sealed clemency record on track to be partially opened.
  • Cannabis ordinance. The court agreed to review the Second District, Division Three, Court of Appeal’s published opinion in People v. Appellate Division, which held an octogenarian landlord could be prosecuted under Los Angeles city ordinances that prohibit renting to “any unlicensed Commercial Cannabis Activity.” The appellate court concluded that state law doesn’t preempt the ordinances and that, even though the landlord said she didn’t know about the cannabis shop on her property, the ordinances “impose strict liability and do not require proof of knowledge or intent.” The superior court had dismissed the charges in the interest of justice, but the appellate division reversed and Division Three agreed with the reversal. This was the second grant of review in the case — after Division Three summarily denied the defendant’s writ petition 13 months ago, the Supreme Court directed the appellate court to decide the case on its merits.
  • AG concession rejected. Justice Goodwin Liu recorded a dissenting vote from the denial of review in People v. B.P., where a 2-1 unpublished Second District, Division Six, opinion held a defendant had validly waived his right to have a jury decide whether he should be committed for treatment as a mentally disordered offender. The Attorney General had conceded the superior court had not properly advised the defendant of his jury trial right, but the majority rejected the concession, relying in part on the defendant being “a veteran of [the criminal justice] system.” The dissenter focused on the defendant’s suffering from schizophrenia and said, “To what extent this may affect his capacity to waive jury I leave to others, but it raises a doubt in my mind.” Justice Liu has been sensitive to jury trial waiver issues in the past. (See here, here, and here.)
  • Murder conviction reversed. The court denied review and a depublication request in People v. Jimenez. The divided, partially published opinion of the Fourth District, Division Two, reversed a first-degree murder conviction, agreeing with the defendant that “his confession was involuntary because the police induced it by threatening to charge his sons with the murder” even though the police told the defendant the sons were innocent of murder. The dissent claimed that the issue was forfeited by failing to object to admission of the confession into evidence and that the record in any event established “the confession was voluntary under constitutional standards.” It said, “Officer interrogation tactics are sometimes deceptive or manipulative, but such tactics have often been upheld as not unconstitutionally coercive.”
  • Criminal case grant-and-holds. There were two criminal case grant-and-holds, both holding for a decision in People v. Strong (see here).
  • Grant and transfers. The court granted review and transferred two cases back to the Courts of Appeal, one for reconsideration in light of January’s opinion in People v. Tirado (2022) 12 Cal.5th 688, and the other for reconsideration in light of Senate Bill 567, Assembly Bill 518, and Senate Bill 317.

Supreme Court grants review in one bail denial case, orders an OSC in another

At the Supreme Court’s Wednesday conference — a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October — actions of note included:

  • Bail denial. The court granted review in In re Harris, limiting the issue to: “What evidence may a trial court consider at a bail hearing when evaluating whether the facts are evident or the presumption great with respect to a qualifying charged offense, and whether there is a substantial likelihood the person’s release would result in great bodily harm to others? (Cal. Const., art. I, § 12, subd. (b).)” The First District, Division Three, Court of Appeal’s published opinion, applying the Supreme Court’s landmark decision in In re Humphrey (2021) 11 Cal.5th 135 (see here), mostly upheld the denial of bail for a defendant charged with attempted murder and aggravated mayhem, but conditionally vacated the denial and directed the superior court to make “further findings as to whether clear and convincing evidence would support a conclusion that no less restrictive alternatives to detention could reasonably protect the government’s interests in pretrial detention.” It was the defendant who petitioned for review.
  • Bail OSC. Besides agreeing to hear Harris, the court in In re Vasquez directed the Fifth District to issue an order to show cause “why relief should not be granted on the grounds the record at the June 17, 2021, bail hearing did not contain evidence of a qualifying offense sufficient to sustain a hypothetical verdict of guilt on appeal (In re White (2020) 9 Cal.5th 455, 462-464) [see here] and the superior court failed to set forth the reasons for its decision to deny bail in the court’s minutes (In re Humphrey (2021) 11 Cal.5th 135, 155-156).” The Court of Appeal had summarily denied the defendant’s habeas corpus petition.
  • Covid insurance. The court denied review in The Inns by the Sea v. California Mutual Insurance Company, which, according to the published opinion of the Fourth District, Division One, “present[ed] an issue of first impression for a California appellate court: does a commercial property insurance policy provide coverage for a business’s lost income due to the COVID-19 pandemic?” The appellate court found no coverage under the policy in the case. It noted that the issue has been extensively litigated in the federal courts and in other states, and said its holding was consistent with “[t]he overwhelming majority of federal district court cases . . . [and] with each federal appellate court to consider the issue.” The opinion also mentioned the University of Pennsylvania Law School’s Covid Coverage Litigation Tracker website. An earlier petition to transfer the appeal to the Supreme Court before a Court of Appeal decision (see rule 8.552) was denied.
  • Attorney fees. The court granted-and-held in Hernandez Flores v. Westlake Services, LLC, but the hold should not be too long because the case is waiting for a decision in Pulliam v. HNL Automotive Inc., which was argued 10 days ago. The issue in Pulliam is whether the word “recovery” as used in the Holder Rule (16 C.F.R. § 433.2) includes attorney fees. The Rule gives consumers relief from loans used to purchase what turn out to be defective goods, but limits consumers’ recoveries. The Second District, Division Three, unpublished opinion in Hernandez Flores, a case involving the unhappy buyer of a used car, followed the Court of Appeal decision in Pulliam in holding the Rule “does not cap the attorney fees, costs, expenses, or prejudgment interest” that can be recovered.
  • Conservatorship jury trial. The court denied review in Conservatorship of C.O., but Justice Goodwin Liu recorded a vote to grant. In a published opinion, the Sixth District found harmless error in the superior court reestablishing a Lanterman-Petris-Short Act involuntary conservatorship without advising the conservatee on the record of his right to a jury trial and concluded that the conservatee’s lawyer could waive that right on his behalf. The appellate court expressly disagreed with the Second District, Division Six, holding in Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 383 that, under California constitutional principles, “a trial court must obtain a waiver of the right to a jury trial from the person who is subject to an LPS commitment.” There was no petition for review in Heather W.
  • Veterans resentencing. Justices Leondra Kruger and Joshua Groban recorded dissents from the denial of review in People v. Rodriguez. The Fourth District, Division Two, 2-1 unpublished opinion affirmed the denial of a petition for resentencing under Penal Code section 1170.91 (b), which applies to military service members or veterans who suffer from various traumas, mental health problems, or substance abuse and who are “currently serving a sentence for a felony conviction.” The majority held the statute doesn’t apply to “plea agreements with a stipulated prison term.” The dissent asserted the decision conflicted with the Supreme Court’s decision in People v. Stamps (2020) 9 Cal.5th 685 (see here) and the dissent also disagreed with the Fourth District, Division One, opinion in People v. King (2020) 52 Cal.App.5th 783, on which the majority relied. The Supreme Court denied review in King with no recorded dissenting votes. Last year, Justice Liu issued a concurring statement when the court denied review in a case about section 1170.91’s retroactivity.
  • Another resentencing case. Justices Kruger and Groban also recorded dissenting votes from the denial of review in People v. Johnson, where a divided Sixth District unpublished opinion upheld a resentencing unfavorable to the defendant. The appellate court assumed the superior court did not err, concluding the superior court’s silence about the defendant’s post-conviction prison conduct didn’t mean that the conduct hadn’t been considered. The dissent believed “the record affirmatively shows error.”
  • Youth offender parole. Justice Liu again recorded votes to grant review in cases raising equal protection challenges to a statute making youth offender parole hearings unavailable for defendants sentenced to life without parole for offenses committed between the ages of 18 and 25. The court denied review in People v. Trotter, where the unpublished opinion of the Second District, Division Three, found unconvincing the constitutional argument made by a defendant who was sentenced for a murder he committed when he was 24. The court also declined to hear People v. Vo, an unpublished Third District decision involving a defendant who committed murder at age 18. The Vo court “acknowledge[d] that many courts which have rejected equal protection challenges . . . have expressed reservation in doing so.” Justice Liu has shown a continuing interest in these parole ineligibility issues. (See here and here.)
  • Criminal case grant-and-holds. There were 10 criminal case grant-and-holds — six more holding for a decision in People v. Strong (see here), two more holding for People v. Delgadillo (see here), one more holding for In re Vaquera (see here), and one more holding for People v. Braden (see here).
  • Disposal of grant-and-holds. The court got rid of 10 criminal case grant-and-holds: seven cases that had been waiting for the January decision in In re Mohammad (2022) 12 Cal.5th 518 were returned to the Courts of Appeal for reconsideration in light of that decision, review was dismissed in one case that had been on hold for both the Mohammad decision and the December 2020 decision in In re Gadlin (2020) 10 Cal.5th 915, and two cases that had been waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 were shed — review was dismissed in one and the other was transferred for reconsideration in light of Lewis and SB 775. By our count, there are 42 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)

Supreme Court will decide kidnapping case

At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, actions of note included:

  • Supreme Court turns down pre-election challenge to sports betting initiative.
  • Parts of clemency record will remain sealed.
  • Kidnapping by deception: The court granted the Attorney General’s petition for review in People v. Lewis, where a divided published opinion by the Fourth District, Division Three, Court of Appeal found insufficient evidence to support a charge of kidnapping to commit rape. (The court affirmed the defendant’s conviction of rape by intoxication.) Although inviting legislative evaluation of the issue, the majority holds the law does not provide that “an intoxicated adult victim can be kidnapped without any force, based on deception alone.” The dissent, on the other hand, asserts that “force or fear is not required to satisfy the asportation requirement of kidnapping when, as here, the victim is incapacitated due to intoxication.”
  • Sentence enhancement: Justice Joshua Groban recorded a dissenting vote from the denial of review in People v. Vanhook, where a 2-1 unpublished Third District opinion affirmed the refusal to strike a firearm enhancement, rejecting an argument the superior court didn’t understand its discretion. The dissenter said, “I do not agree that the trial court was necessarily aware of the many options available to it, any of which could have been deployed to fashion an appropriate sentence, as opposed to merely striking or not striking the unstayed enhancements.”
  • Criminal case grant-and-holds: There were seven criminal case grant-and-holds — six more holding for a decision in People v. Strong (see here) and one more holding for People v. Aguayo (see here and here).
  • Disposal of grant-and-holds:  The court removed from its docket eight more cases that had been waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952. Review was dismissed in four of them and the other four were sent back to Courts of Appeal for reconsideration in light of the Lewis opinion and SB 775. By our count, there are 44 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)

No straight grants, but two notable grant-and-transfers, at this week’s conference

At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, there were no straight grants, but there were actions of note, including:

  • Arbitration: Zhang v. Superior Court is the latest chapter in high-profile litigation between the Dentons law firm and one of its former partners. (See here and here.) After the Second District, Division Eight, Court of Appeal summarily denied the former partner’s writ petition seeking to stop a New York arbitration of the dispute, the Supreme Court ordered the appellate court to decide the petition on the merits. The petition concerns the interplay between 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,” and 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.
  • Habeas OSC; denial of review in similar case: In In re Tellez, the court granted review and ordered the Fourth District, Division One, to issue an order to show cause why the habeas corpus petitioner should not be granted relief “on the ground trial counsel rendered ineffective assistance by failing to advise petitioner of the potential for commitment as a sexually violent predator as a consequence of his plea.” The appellate court had summarily denied the habeas petition, but issued a detailed order explaining its reasoning. Among numerous other reasons, the order relied on its own recent holding in People v. Codinha (2021) 71 Cal.App.5th 1047, 1053, that “[c]ounsel was not obligated to advise Appellant that an SVP commitment was a possible consequence of his plea.” Although directing the order to show cause in Tellez, the Supreme Court yesterday denied review in Codinha. Maybe Tellez is a better vehicle for the issue than Codinha. (See here.)
  • American Indian gaming: The court denied review in Rincon Band of Luiseño Mission Indians v. Flynt, but Justice Goodwin Liu recorded a vote to grant. The published opinion of the Fourth District, Division One, upheld the dismissal of a lawsuit by two American Indian tribes and others against non-tribal cardrooms, claiming, as paraphrased by the appellate court, that the cardrooms “were offering banked card games on non-tribal land, in violation of the exclusive right of Indian tribes to offer such games.” The appellate court held the tribes, as “sovereign governmental entities,” don’t have standing to sue as “persons” under California’s Unfair Competition Law or as “private persons” under public nuisance statutes. It also concluded the plaintiffs could not seek declaratory relief under a state constitutional provision and Penal Code statutes that proscribe gambling.
  • Retroactive legislation: Justice Liu also dissented from the denial of review in People v. Bunge, where the Third District’s unpublished opinion held the defendant could not take advantage of 2020 legislation that reduced some maximum probation periods. The defendant was imprisoned for probation violations that occurred before the legislation took effect, but when he had been on probation for longer than would have been allowed under the amended statute.
  • Strike improperly struck: The court denied review and a depublication request in People v. Vasquez, but Justices Liu and Joshua Groban recorded votes to grant review. A divided Fourth District, Division Three, published opinion held the superior court abused its discretion in striking a prior strike conviction, concluding, the defendant “falls squarely within the letter and the spirit of the ‘Three Strikes’ law” and “there are no extraordinary circumstances—none—that justify a departure from” that law. The dissent said “[t]here are no ‘good boys’ ” who present for sentencing with two prior strikes, but “the prosecution has not carried its burden to demonstrate the trial court’s sentencing decision was irrational or arbitrary,” even though “the deference we must pay to the trial court’s judgment is sometimes a bitter pill to swallow where an appellate court justice strenuously disagrees with a trial court’s assessment.”
  • New-Legislation Grant-and-Transfer: The court granted review and transferred one more matter back to the Court of Appeal for reconsideration in light of new legislation, Assembly Bill 124 in this case.
  • Criminal case grant-and-holds: There were four criminal case grant-and-holds, all holding for a decision in People v. Strong (see here).
  • Lead case changePeople v. Pardo had been a grant-and-hold waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 and also for People v. Lopez, which was transferred in November to the Court of Appeal for reconsideration in light of SB 775. The court has now made Pardo a grant-and-hold for Strong (see above).
  • Disposal of grant-and-holds:  The court got rid of 33 more criminal case grant-and-holds. 14 cases that had been holding for People v. Lopez, which was transferred to the Court of Appeal for reconsideration in light of SB 775 (see above), were themselves transferred for reconsideration in light of SB 775. Reconsideration in light of SB 775 was also ordered for one case that was on hold for Lopez and for People v. Gentile (2020) 10 Cal.5th 830 (see here). Review was dismissed in nine cases that had been holding for People v. Lewis (see above). Eight cases that were holding for both Lopez and Lewis, and one case that was holding for Lopez, were transferred for reconsideration in light of the Lewis opinion and SB 775. By our count, there are 52 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)

Supreme Court will decide admissibility of subsequent sexual assault evidence in school molestation case

At the Supreme Court’s conference yesterday — a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October — actions of note included:

  • Supreme Court will answer Ninth Circuit’s economic loss rule question in action against Uber.
  • Sexual assault evidence: The court granted review, for a second time, in Doe v. Superior Court (Mountain View School District), a case against a school district for negligently supervising a teacher who molested a fourth grader. The issue is whether evidence of molestation two years later by someone else can be used to limit emotional distress damages attributable to the teacher’s misconduct. As summarized by court staff, the issues are: “(1) Is evidence that a plaintiff in a civil action suffered a prior sexual assault admissible for impeachment purposes (Evid. Code, § 783) or inadmissible as a claim that the plaintiff did not suffer injury (Evid. Code, § 1106, subd. (a))? (2) If admissible, what procedures and quantum of proof are required to admit such evidence?” (Links added.) The Second District, Division Two, Court of Appeal, in a published opinion, held the superior court did not abuse its discretion in ruling the evidence is admissible for impeachment purposes. Last August, after the appellate court summarily denied the plaintiff’s writ petition, the Supreme Court moved very quickly to stay trial of the case and send the matter back to Division Two with instructions to decide the petition’s merits.
  • Employment case grant-and-hold: The court granted-and-held in Joseph v. California Department of Corrections. The lead case is Lawson v. PPG Architectural Finishes, Inc., which the court decided two weeks ago. In Lawson, the court held that, instead of a U.S. Supreme Court decision, a California statute provides the evidentiary standard — a more plaintiff-friendly one — for whistleblower retaliation claims. In Joseph, the Fourth District, Division Two, unpublished opinion applied the U.S. Supreme Court standard in affirming a defense summary judgment. After the Lawson opinion is final, probably by the end of the month, the Supreme Court will likely send the Joseph case back to the appellate court for reconsideration in light of Lawson.
  • Collateral order appealability?: In State of California v. Hoffman, the court ordered the First District, Division One, to vacate its dismissal of the defendant’s appeal and “to show cause why (1) the order is not appealable under the collateral rule doctrine, and (2) the relief sought in the petition for review should not be granted.” It’s unclear what the case is about, but the Court of Appeal docket indicates a receivership is involved.
  • Transfer of another fully briefed case: After granting review in People v. Federico in August 2020, and receiving full briefing, the court transferred the case back to the Court of Appeal for reconsideration in light of Assembly Bill 1540, which was signed into law in October. Justice Martin Jenkins did not vote for the transfer. New legislation caused similar recent transfers in the fully briefed cases of People v. Lopez (see here) and People v. Duke (see here).
  • Insurance rates: The court denied petitions for review and a depublication request in State Farm General Insurance Company v. Lara, where the published opinion of the Fourth District, Division One, concluded the state’s Insurance Commissioner improperly ordered both a reduction of homeowner insurance rates and refunds of premium payments totaling about $100,000,000.
  • Van Houten parole: The court denied Manson cult follower Leslie Van Houten’s petition for review after the Second District, Division One, summarily denied her writ petition. Governors Jerry Brown and Gavin Newsom have four times reversed favorable parole recommendations by the state’s parole board. (See also here.) The writ petition sought discovery of when the latest recommendation was referred to Newsom and also that reversal of the recommendation be nullified if the Governor exceeded what Van Houten claims is “his 30-day jurisdictional window” to review the recommendation. Justice Joshua Groban was recused.
  • New-Legislation Grant-and-Transfers: The court granted review and transferred two more cases back to the Courts of Appeal for reconsideration in light of new legislation. Assembly Bill 333 is the catalyst for both reassessment orders.
  • Criminal case grant-and-holds: There were 13 criminal case grant-and-holds: seven more holding for a decision in People v. Strong (see here), three more holding for People v. Delgadillo (see here), one holding for the finality of last month’s opinion in People v. Tirado, one more holding for People v. Prudholme (see here), and one more holding for both People v. Padilla (which will be argued next month) and People v. Federico (see here), even though the court dumped Federico yesterday (see above).
  • Lead case changes: In eight cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952, the court is now deferring action pending its decision in People v. Strong (see here). By our count, there are 70 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)

Supreme Court will hear case on drilling and fracking ban

There were two more straight grants of review at the Supreme Court’s conference yesterday, with, again, only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October. Actions of note included:

  • Oil and gas drilling/fracking ban: The court granted review in Chevron U.S.A., Inc. v. County of Monterey to decide whether a county ordinance can prohibit “land uses in support of” oil and gas wells and fracking in unincorporated parts of the county. The court ordered briefing on whether “Public Resources Code section 3106 impliedly preempt[s] provisions” of the ordinance, which was adopted by initiative. Distinguishing a bunch of Supreme Court and Court of Appeal decisions in its published opinion, the Sixth District Court of Appeal held there is preemption because the statute “explicitly provides that it is the State of California’s oil and gas supervisor who has the authority to decide whether to permit an oil and gas drilling operation to drill a new well or to utilize wastewater injection in its operations.” Unusually, there were a bare minimum four votes to hear the case. Of the six justices conferencing, Justice Carol Corrigan was recused and Justice Joshua Groban did not vote for review.
  • Murder liability: The court granted the Attorney General’s petition for review in People v. Curiel, where the Fourth District, Division Three, unpublished opinion reversed the denial of a petition for resentencing filed by a defendant who had been convicted of first degree murder with special circumstances, even though he was not the shooter who killed the victim. The appellate court concluded that, despite the special circumstances finding, the defendant was entitled to a hearing at which the prosecution has the burden of proving beyond a reasonable doubt that he is ineligible for relief. Curiel becomes one of many cases that are or have been on the Supreme Court’s docket concerning Senate Bill No. 1437, 2018 legislation that allows resentencing of some defendants convicted of felony murder or murder under a natural-and-probable-consequences theory.  (See also here.)
  • Recorded vote: The court denied review in People v. Ward, but Justice Goodwin Liu recorded a vote to grant. It’s another case raising an equal protection challenge to a statute making youth offender parole hearings unavailable for defendants sentenced to life without parole for offenses committed between the ages of 18 and 25. The short unpublished opinion by the First District, Division Five, followed other Court of Appeal decisions rejecting the constitutional argument. Justice Liu has shown a continuing interest in these parole ineligibility issues. (See here and here.) The court is expected to decide a related constitutional issue in People v. Williams (see here).
  • New-Legislation Grant-and-Transfers: The court granted review and transferred three more cases back to the Courts of Appeal for reconsideration in light of new legislation: one more for Senate Bill 567 and two more for Senate Bill 775 (see here and here).
  • Grant-and-holds: There were four criminal case grant-and-holds: two more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), and one more holding for People v. Williams (see here).
  • Disposal of grant-and-holds:  The court dumped a bunch more criminal grant-and-hold cases, 51 this week. In recent past conferences, there have been as many as 80 disposed of. Review was dismissed in 21 cases that had been grant-and-holds waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952. In 28 cases that had been on hold for both Lewis and People v. Lopez (Lopez was transferred in November to the Court of Appeal for reconsideration in light of SB 775 (see above)), the court transferred the matters to the Courts of Appeal for reconsideration in light of Lewis and SB 775. By our count, there are 78 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.) The court also transferred two cases that had been holding just for Lopez, sending the cases back to the Courts of Appeal for reconsideration in light of SB 775.
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