At yesterday’s Supreme Court conference, a double one, there was one straight grant, a depublication, and Justices Goodwin Liu and Kelli Evans continued to be frequent dissenters (see here).
A six-justice conference
This was the first conference since Justice Martin Jenkins’s retirement. The short-handed court didn’t use any pro tem justices, but, in three cases, it was one vote away from needing a Court of Appeal justice to break a tie. (See Pro tems are rare at Supreme Court conferences.)
Review granted: water quality regulation
The court agreed to hear Camarillo Sanitary District v. State Water Resources Control Board. In a published opinion, the Fifth District Court of Appeal concluded California had properly adopted the State Policy for Water Quality Control: Toxicity Provisions, except for the part of the Provisions that requires analyzing whole effluent toxicity tests using a Test of Significant Toxicity. The appellate court explained that “whole effluent toxicity looks to the combined effect of all pollutants in the water and defines when that combination of pollutants is deemed toxic.”
The Fifth District concluded, “To the extent the Toxicity Provisions determine compliance with [National Pollutant Discharge Elimination System] permits based upon toxicity as defined by the Test of Significant Toxicity, they conflict with federal law and must be set aside.” It acknowledged its holding in that regard conflicts with an unpublished decision by the Second District, Division Six, in a case brought by one of the plaintiffs in the Fifth District case.
The order granting review limits the issues to those “raised in the [Control Board’s] petition for review.” Thus, the Supreme Court apparently will decide the validity of only the Test of Significant Toxicity and not all the Toxicity Provisions.
[November 14 update: Here are the issues as limited by the court — “ (1) Whether the adoption by the State Water Resources Control Board (State Board) of a statistical approach for measuring water toxicity — called the Test of Significant Toxicity or ‘TST’ — recommended in guidance issued by the U.S. Environmental Protection Agency (EPA) violates federal regulations implementing the Clean Water Act. (See 40 C.F.R. §§ 122.44, 136.3(a).) (2) Whether the interpretations of those regulations provided by the EPA and the State Board are entitled to deference under Auer v. Robbins (1997) 519 U.S. 452 and Yamaha Corporation of America v. State Board of Equalization (1998) 19 Cal.4th 1, respectively.”]
Ghost gun possession grant-and-transfer
The court granted the 17-day-late petition for review in Burns v. Superior Court (see: Getting relief for a late petition for review might not be a hopeless cause) and sent the case back to the Fifth District, which had summarily denied the writ petition in the case, with directions to issue an alternative writ.
According to the petition for review, the defendant has so far unsuccessfully sought dismissal of several Penal Code section 25400 concealed-firearm-carrying charges, relying on section 25605, which makes those charges inapplicable to possessing a handgun at a person’s “place of residence.” The gun in question was a Polymer80 ghost gun, which the prosecution claimed is abnormally dangerous and outside the Second Amendment’s and section 25605’s protections. The Fifth District denied the writ petition even though the Attorney General conceded in an informal response to the petition that section 25605 prevents prosecution for possession of the gun under section 25400.
Racial Justice Act OSC
The court issued an order to show cause, returnable in the superior court, in a pro per’s 10-month-old habeas corpus petition in In re Walker. Cause is to be shown “why petitioner is not entitled to appointment of counsel pursuant to Penal Code section 1473, subdivision (e), in light of statistical data provided by petitioner demonstrating racial disparities in Three Strikes sentences imposed in Orange County.” Section 1473 is part of California’s Racial Justice Act (see here and here).
The court has made many orders like this before. (See recently here.)
Depublication: takings case
The court denied review in Sheetz v. County of El Dorado, but it depublished the Third District’s opinion. The opinion came after the U.S. Supreme Court vacated the appellate court’s first decision in Sheetz v. County of El Dorado (2024) 601 U.S. 267 (see here), holding, unlike the Third District, that a fee imposed on a landowner by legislation was “an unlawful ‘exaction’ of money under the Takings Clause” no less than a fee imposed on an ad hoc basis by administrators. The depublished opinion on remand again found that the challenged permit condition in the case wasn’t “an unconstitutional condition imposed on land use in violation of the Fifth Amendment’s takings clause.”
Delayed transfer of capital habeas petition.
The court exercised its discretion to transfer the condemned prisoner’s habeas corpus petition in In re McCurdy to the superior court under Proposition 66 (see here and here). The court affirmed the petitioner’s death sentence 11 years ago (People v. McCurdy (2014) 59 Cal.4th 1063) and the writ petition has been pending since 2015. The death sentence was imposed in 1997.
When the court transferred a similarly matured habeas petition in February, I wrote, “It’s unclear (unclear to me, anyway) why it took so long to transfer the petition. Prop. 66 has been in effect since October 2017 and the court transferred scores of capital habeas petitions on one day in May 2019.”
More headless PAGA grant-and-holds
Neubecker v. Evans Hotels and Resendiz v. Canyon Restaurant are even more grant-and-holds for Leeper v. Shipt, Inc. (see here), in which the court limited the issues to: “1.) Does every Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? 2.) Can a plaintiff choose to bring only a non-individual PAGA action?”
In Neubecker, the Fourth District, Division One, in an unpublished opinion, followed its decision in Rodriguez v. Packers Sanitation Services LTD., LLC (2025) 109 Cal.App.5th 69 (which is also a Leeper grant-and-hold (see here)), and affirmed the denial of the defendant employer’s motion to compel arbitration of a labor code violations lawsuit, holding the plaintiff was allowed to sue in a non-individual capacity only and was not required to assert any individual claims. The Second District, Division Six, unpublished opinion in Resendiz reached the same conclusion, disagreeing with the Second District, Division One, Leeper decision.
Because the underlying lawsuit in Leeper has been dismissed at the plaintiff’s request, we guessed the Supreme Court would dismiss review in Leeper and straight grant in another case raising the same issues. That hasn’t happened. In fact, the parties are at the tail end of briefing in Leeper, the reply brief now due December 8. Besides Rodriguez, other Leeper grant-and-holds are Williams v. Alacrity Solutions Group, LLC (see here), Osuna v. Spectrum Security Services, Inc. (see here), CRST Expedited, Inc. v. Superior Court (see here), and Medina v. Sood Enterprises, Inc. (see here).
Dependency mootness grant-and-hold
In re A.D. is another grant-and-hold for In re S.R. (see here), in which the issues are: (1) When a juvenile court’s jurisdictional findings establish that a parent committed an offense that the law requires be reported to the statewide Child Abuse Centralized Index (CACI), should an appellate court presume, on an otherwise silent record, the offense has been or will be reported to CACI? (2) If unrebutted, is this presumption sufficient to avoid dismissal for mootness? S.R. was argued in September and an opinion is due by December 4.
In A.D., the Second District, Division Four, unpublished opinion addressed only one of three jurisdictional findings and declined to “exercise [its] discretion to consider additional bases for jurisdiction.”
Dissenting votes: de facto parent standing
Justices Liu and Evans recorded dissenting votes from the denial of review in In re Kaleb M. The First District, Division One, unpublished opinion affirmed an order removing a child from a foster parent’s care and placing him with a relative. Division One followed other Court of Appeal decisions and held, “the de facto parent was not aggrieved by the juvenile court’s order removing the child from her home because de facto status did not confer on her the rights accorded to parents or legal guardians; she only had limited rights to participate in hearings.” It disagreed with the Second District, Division Five, opinion in In re Vincent M. (2008) 161 Cal.App.4th 943.
Dissenting vote: domestic violence restraining order
Justice Liu also dissented from the denial of review in S.S. v. J.S. In an unpublished opinion, the Second District, Division Six, affirmed the denial of a wife’s request for a domestic violence restraining order and the grant of an order of joint legal and physical custody of her child. It held the wife’s “failure to appeal [an earlier] order [denying a DVRO] precludes our review.”
Dissenting vote: right-to-counsel waiver
The court denied review in People v. Brandon, but Justice Liu recorded a dissenting vote. The Third District’s unpublished opinion affirmed a conviction for rape and assault with intent to commit oral copulation, rejecting arguments that “(1) [the defendant’s] waiver of his Sixth Amendment right to counsel was invalid because the trial court failed to advise him of his maximum potential sentence; and (2) the trial court prejudicially erred by failing to strike his prior serious felony convictions factors under Penal Code section 1385, subdivision (c).”
We think Justice Liu’s vote concerned the waiver issue, but that’s not clear because the vote is unexplained. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
Dissenting votes: murder conviction
Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Trujillo. An unpublished opinion by the Second District, Division Two, affirmed a defendant’s conviction for murder and for attempted murder in the stabbings of two people “after hearing voices in his head telling him to kill someone.” The appellate court rejected arguments that “the trial court wrongly excluded certain evidence at trial regarding his history of mental health and substance abuse and erred by refusing to give a jury instruction on imperfect self-defense” and that “he received ineffective assistance of counsel.”
As in Brandon (above), the dissents are unexplained, so it is unclear why Justices Liu and Evans wanted to hear the case. (As in Brandon, there’s a fairly simple cure for that: When a message vote’s message is muddled.)
Dissenting votes: attempted murder resentencing
Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Smith. The Second District, Division Two, in an unpublished opinion, affirmed the denial — without an evidentiary hearing — of a petition for resentencing under Penal Code section 1172.6, part of Senate Bill 1437, 2018 legislation that eliminated murder liability under the natural and probable consequences doctrine, significantly limited the scope of the felony murder rule, and allowed for resentencing for some convictions obtained under prior law.
Division Two held no evidentiary hearing was necessary because “the record of conviction . . . shows” that the defendant was the actual shooter in the incident that led to his attempted murder conviction. A concurring justice wrote that, based on the Supreme Court’s People v. Patton (2025) 17 Cal.5th 549 decision (see here), the defendant should be allowed to file an amended petition because of “the presence of an accomplice at the scene of the shooting.”
Dissenting votes: youth offender parole denial
Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. DeJesus. In an unpublished opinion, the Second District, Division Seven, rejected constitutional challenges to a statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26.
In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed. (See here and recently here; see also here.)
Criminal case grant-and-holds
There were four criminal case grant-and-holds this week: three more waiting for a decision in People v. Eaton (see here) and one more holding for People v. Munoz (see here and here).
Grant-and-hold dispositions (see here)
The court dismissed review in eight cases that were grant-and-holds for the July vehicle-sales-arbitration opinion in Ford Motor Warranty Cases (2025) 17 Cal.5th 1122 (see here): Montemayor v. Ford Motor Company (see here), Bacon v. BMW of North America (see here), Ballesteros v. Ford Motor Company (see here), Rivera v. Superior Court (see here), Davis v. Nissan North America (see here), Kielar v. Superior Court (see here), Lanier v. Ford Motor Company (see here), Yeh v. Superior Court (see here).
The court also dismissed review in three cases that were waiting for the August Sexually Violent Predator Act decision in People v. Cannon (2025) 18 Cal.5th 497 (see here).
