At its day-early, year-end conference yesterday, a double one (there wasn’t one last week) with just six justices participating, the Supreme Court straight-granted in one case and dismissed review in another. Here’s a report on those and other actions.
Racial Justice Act review dismissals
Yesterday’s dismissal of review in In re Montgomery (see: Supreme Court puts off ruling on Racial Justice Act discovery issue) also led to similar without-prejudice review dismissals in four cases that were grant-and-holds for Montgomery.
Review grant: interpreting contracts with extrinsic evidence
The court agreed to hear Montrose Chemical Corp. of California v. Superior Court and limited the issues to: “(1) May a court conclude that contract language is not reasonably susceptible of a construction advanced by a party without first giving preliminary consideration to the extrinsic evidence proffered by the party? (2) Under what circumstances, if any, does prior judicial construction of contract language render that language not reasonably susceptible to a construction advanced by a party and preclude preliminary consideration of extrinsic evidence proffered by that party to support that construction?”
Chief Justice Patricia Guerrero and Justice Carol Corrigan were recused for — as is the norm — unstated reasons. With a vacancy and the recusals, review was granted with the bare minimum four votes.
The Second District, Division Three, Court of Appeal published opinion — after a July 2024 Supreme Court grant-and-transfer order (see here) — held the superior court was required to exclude extrinsic evidence to interpret an insurance policy provision because prior appellate decisions “have uniformly rejected the exact interpretation advanced by [the insured].” For its part, Division Three wasn’t bound by, but it agreed with, those decisions, concluding the proffered extrinsic evidence — policy drafting history — was not relevant because it did not “ ‘tend[ ] to prove a meaning of which the language of the policy is reasonably susceptible.’ ”
The lawsuit concerns whether there is insurance coverage for environmental damage stemming from the insured’s operation of a DDT plant.
Grant-and-transfer: noneconomic damage limitation in revived childhood sexual assault cases
Speaking of grant-and-transfer orders (see Montrose, above), that’s what the court did in Plaintiffs in JCCP 5108, In re Northern California Clergy Cases v. Superior Court. The court directed the Second District, Division Five, to decide the merits of a writ petition that Division Five had summarily denied.
The petition for review reports the issue is whether Proposition 51, a 1986 initiative that limits a defendant’s liability for noneconomic damages to only those that are “in direct proportion to [a] defendant’s percentage of fault,” applies in AB 218 cases with causes of action accruing before Prop 51’s passage. AB 218, enacted in 2019, revived many otherwise time-barred claims of childhood sexual assaults. The petition says that the plaintiffs in the underlying coordinated proceeding “seek to hold [institutional defendants] liable for the horrendous sexual assaults committed by trusted religious leaders” and that the alleged assaults of most of the plaintiffs occurred before Prop 51’s enactment.
The petition quotes the superior court as adopting “a novel rule” that “claims filed pursuant to AB 218 ‘accrued’ or ‘re-accrued’ for purposes of Proposition 51 on 1/1/2020 when the Legislature revived and opened the window to file previously dead claims.”
Childhood sexual assault dissenting vote.
And speaking of AB 218 (see Northern California Clergy Cases above), Justice Joshua Groban recorded a dissenting vote from the denial of review in Doe v. North Monterey County Unified School District. Like other appellate courts to rule on the issue, the Sixth District’s unpublished opinion held the legislation reviving some barred childhood sexual assault claims doesn’t violate the California Constitution’s no-gift-of-public-money clause in article XVI, section 6. (See Matt Hamilton’s report in the Los Angeles Times that AB 218 “has upended school budgets, drained district coffers, triggered cuts to programs, threatened cost-of-living increases for teachers and even contributed to layoffs.”) The superior court had found a constitutional violation and dismissed the case, one alleging the plaintiff’s high school teacher sexually abused her in the early 2000s.
The Sixth District relied on the First District, Division Five, decision in West Contra Costa Unified School District v. Superior Court (2024) 103 Cal.App.5th 1243. The Supreme Court denied review in West Contra Costa. (See here.)
Justice Groban has previously dissented from the denial of review in West Contra Costa and similar cases (see recently here) and might be the lone member of the court who ever votes to decide the issue, unless a Court of Appeal declares AB 218 unconstitutional (see: The Supreme Court doesn’t decide all important issues).
Another forum selection grant-and-hold
Wonacott v. Thor Motor Coach is another grant-and-hold for Lathrop v. Thor Motor Coach (see here), an un-hold case in which the parties were directed to brief these issues: “(1) Where a party alleges that enforcement of a forum selection clause would result in a waiver of the party’s unwaivable statutory rights, what is the showing necessary to enforce (or avoid enforcement) of such a clause, and which party bears the burden of proof on the issue? (2) Under what circumstances, if any, does a stipulation to apply California law in the selected forum rebut an allegation that enforcement of a forum selection clause would result in a waiver of a party’s unwaivable statutory rights? (3) If enforcement of a choice of law clause would result in a waiver of a party’s unwaivable statutory rights, is the choice of law clause severable from the remainder of the agreement?”
Horvitz & Levy is appellate counsel for the defendants in Lathrop and Wonacott.
In Wonacott, a Third District unpublished opinion agreed with the Second District, Division Seven, review-granted Lathrop opinion (Lathrop v. Thor Motor Coach, Inc. (2024) 105 Cal.App.5th 808) and the grant-and-hold opinion in Hardy v. Forest River, Inc. (2025) 108 Cal.App.5th 450 (see here) that enforcing a forum selection clause in reliance on a stipulation that California law would apply violates public policy.
Dissenting votes: youth offender parole denial
Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in People v. Barrios. 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 denial 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.)
Dissenting vote: murder resentencing
Justice Evans also recorded a dissenting vote to grant review in People v. Figg. In an unpublished opinion, the First District, Division Five, affirmed the denial of 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.
The defendant had pled no contest to attempted murder and voluntary manslaughter committed when he was 17. On appeal, he unsuccessfully argued the superior court erred in denying his resentencing petition after admitting testimony from his preliminary hearing and subsequent parole hearing.
Dissenting vote: murder conviction affirmed
Justice Evans also recorded a dissenting vote from the denial of review in People v. Shanley. In an unpublished opinion, the Fourth District, Division One, affirmed a conviction of first degree murder with a lying-in-wait special circumstance and a firearm enhancement , and of recklessly evading a peace officer.
Division One rejected four separate arguments and, since the dissenting vote is unexplained, it’s unclear what issue or issues attracted Justice Evans’s attention. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
The defendant’s varied arguments, as summarized in the opinion, were: “the trial court erred by overruling his objection under Code of Civil Procedure section 231.7 to the prosecutor’s use of peremptory challenges against three prospective jurors whom the defense perceived to be Hispanic” (footnote omitted) (the Supreme Court has granted review in a section 231.7 case, People v. SanMiguel (see here)), “the trial court erred by failing to instruct the jury about excusable homicide as it relates to his claim that he accidentally shot the victim,” “there was no evidentiary foundation for a hypothetical question the prosecutor asked an expert witness about the circumstances surrounding defendant’s claim that he accidentally fired the murder weapon,” and “the prosecutor committed error during closing argument by undermining the presumption of innocence, shifting the burden of proof to the defense, and commenting on defendant’s failure to call a logical witness whom the prosecutor knew was unavailable.”
If I had to guess, I’d say Justice Evans wanted the court to address the section 231.7 issue. On that issue, Division One concluded, “As to two of the challenged prospective jurors, . . . defendant failed to develop an adequate record as to their race or perceived race. As to the remaining prospective juror, . . . there is no substantial likelihood that an objectively reasonable person would view race as a factor in the prosecutor’s use of the peremptory challenge.”
Partial clemency record made public
After a motion to unseal the records Governor Gavin Newsom submitted to the court in support of his request for a constitutionally required recommendation to commute the life without parole sentence of Glenn Hanson, the court made public a redacted version of the file. The entire record was originally filed under seal and, absent a motion, would have remained completely off limits to the public.
Criminal case grant-and-holds
There were seven criminal case grant-and-holds: two more waiting for a decision in People v. Mitchell (see here and here); two more holding for People v. Eaton (see here); and one more each on hold for People v. Espino (see here), People v. SanMiguel (see here), and People v. Munoz (see here).
