Here are some more actions taken by the Supreme Court at its no-straight-grant conference last week. Part I of the recap is here.
Grant-and-transfer: movie industry wage order
The court granted review in Ferguson v. Superior Court and sent the case back to the Second District, Division Five, Court of Appeal, with directions to vacate Division Five’s summary denial of the writ petition in the case and to decide the case on the merits.
The petition for review says the underlying case is about overtime pay for actors who are movie extras. A superior court ruling invalidated an Industrial Welfare Commission wage order governing that pay. The action is a putative class action by an actor who claims he was underpaid for his work as an extra.
Grant-and-transfer: appellate costs in employment case
The court granted review and returned Mata v. Kaiser Foundation Hospitals to the Second District, Division Eight. It’s a limited remand, concerning only appellate costs.
In an unpublished opinion, Division Eight affirmed a summary judgment against a plaintiff who alleged various discrimination and harassment claims against his employer under the California Fair Employment and Housing Act. The opinion’s disposition awarded the defendant its costs on appeal without discussion.
The Supreme Court has directed Division Eight to “perform the analysis required by Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 947-951, before determining whether to award costs on appeal to defendant.” Pollock holds that appellate costs in employment cases like plaintiff’s are governed by Government Code section 12965, which bars attorney fees and costs to prevailing defendants “unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (See here.)
Grant-and-transfer: post-conviction discovery
The court also granted-and-transferred in Green v. Superior Court after the Second District, Division Two, summarily denied a writ petition.
The Supreme Court’s transfer order requires the superior court show cause why it hasn’t “(1) . . . rule[d] on petitioner’s motion for post-conviction discovery (see Pen. Code, § 1054.9) . . . and . . . grant[ed] any requests contained therein seeking materials to which he is entitled under the statute . . . and (2) rule[d] on petitioner’s counsel request made pursuant to Penal Code section 1405 (see id., subd. (b)(2) & (b)(3)).” Section 1405 (b)(2) and (b)(3) concern appointing counsel for an indigent convicted person seeking potentially exculpatory DNA testing.
Racial Justice Act OSC
The court issued an order to show cause, returnable in the superior court, in the pro per habeas corpus petition in In re Dunbar, concerning a claim under California’s Racial Justice Act (see here, here, and here).
Cause is to be shown “why petitioner is not entitled to relief based on his claim that Juror No. 7 made statements to the trial court that demonstrated racial bias in violation of the Racial Justice Act. (See Pen. Code, § 745, subd. (a)(1)-(2).)”
The court has made many orders like this before, although, more often than not and unlike the Dunbar petition, the cases involve claims of systemic racism, not case-specific RJA violations. (See here and, recently, here.)
Dissenting vote: attack on Nancy Pelosi’s husband
Justice Corrigan recorded a dissenting vote (a rarity) from the denial of a district attorney’s petition for review in People v. DePape. The First District, Division Two, in a 2-1 published opinion, affirmed the dismissal of three counts against the defendant, who had attacked Paul Pelosi, the husband of then-Speaker of the House of Representatives Nancy Pelosi. (The opinion’s caption lists The People, who appealed, as the respondent. Is that correct?)
The statutory double-jeopardy dismissals followed the defendant’s conviction in federal court of offenses, including assaulting an immediate family member of a federal official using a dangerous weapon, a hammer. The Division Two majority concluded the conviction barred state charges of attempted premeditated murder, elder abuse, and assault with a deadly weapon. The dissent agreed with the dismissal of the assault count, but asserted the defendant should still stand trial for attempted murder and elder abuse.
Dissenting vote: racial discrimination by Tesla
The court’s denial of review in Smith v. Superior Court was over Justice Groban’s recorded dissent. A published opinion by the First District, Division Five, held the superior court erred when it found misjoinder of hundreds of plaintiffs in actions alleging racial discrimination and harassment at a Tesla factory and when it ordered each plaintiff to file their own separate lawsuits.
“[L]iberally constru[ing]” the plaintiffs’ allegations “that Tesla was aware of ongoing racial harassment . . . and . . . nonetheless engaged in a ‘pattern and practice‘ of ‘systematically and consistently‘ ignoring that ‘racist conduct,’ which ’caused each [p]laintiff to be exposed’ to such conduct at the factory,” Division Five concluded the pleadings were “sufficient to justify joinder based on a commonality of liability.”
The appellate court’s decision was made even while recognizing that, “[a]lthough there appears to be common questions of law or fact based on the pleadings, the claims of most, if not all, plaintiffs will likely have to be resolved separately.” The opinion also expressed “sympath[y]” for the superior court’s “plight” and its “formidable” “challenge.”
Dissenting votes: youth offender parole denial
The court denied review in People v. Bailey over Justice Liu’s and Evans’s recorded dissenting votes. 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. The defendant was convicted of two counts of first degree murder and one count of attempted willful, deliberate, and premeditated murder, committed when he was 18.
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 cases involving attacks on the no-parole-for-youth-offender-LWOPs statute, 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 votes: juvenile de facto LWOP resentencing
Justice Evans also recorded dissenting votes from the denials of review in People v. Rosas and People v. Williams. The Fourth District, Division Three, unpublished opinion in Rosas affirmed the denial of a resentencing petition by the defendant who was sentenced, in part, to 34 years and eight months to life for a murder and other crimes committed when he was 17. Similarly, the Second District, Division Two, in an unpublished opinion in Williams, found meritless a resentencing petition by a defendant serving a 40 years to life sentence for second degree murder committed when he was 17.
The defendants sought relief under Penal Code section 1170, which generally permits resentencing of some defendants who were sentenced to life without parole for crimes committed when they were minors, and under the Fourth District, Division One, decision in People v. Heard (2022) 83 Cal.App.5th 608, which held that, consistent with equal protection principles, resentencing must also be allowed for those sentenced to the “functional equivalent of life without parole.”
In Rosas, Division Three held the defendant’s 34+ years to life sentence, which, the court said, “would have provided parole eligibility around age 52, is not the functional equivalent of LWOP and it would have provided a meaningful opportunity to obtain release and a realistic opportunity to reintegrate with society.” Division Two’s Williams decision concluded the 40 years to life sentence was not functionally equivalent to LWOP because his parole eligibility — “at the latest, at the age of 57” — “does not ‘fall[ ] outside’ [the defendant’s] ‘natural life expectancy[,]’ and accordingly, his sentence does not ‘effectively condemn[ ]’ him ‘to die in prison’ as would ‘an explicit LWOP sentence.’ ”
The Supreme Court last year granted review in People v. Munoz to decide whether a juvenile homicide offender sentenced to 50 years to life in prison is entitled to recall and resentencing under section 1170(d)(1), on the ground that the sentence is the functional equivalent of life imprisonment without parole. (See here; see also here.)
50 years to life sentences are getting the court’s attention; lesser, but still very lengthy, sentences, not so much. (See here.)
The Supreme Court said the Rosas and Williams denials of review are “without prejudice to any relief to which defendant might be entitled after this court decides . . . Munoz.”
Justice Evans — and Justice Liu — have dissented in similar cases. (See recently here.)
Dissenting vote: murder affirmance
The court denied two defendants’ petitions for review in People v. Vallejo, but Justice Liu recorded a vote to hear the case. The Sixth District’s unpublished opinion affirmed the defendants’ convictions of second degree murder and other crimes, but found insufficient evidence to support one sentencing enhancement for one defendant.
The opinion addressed numerous and disparate issues, including a claim that, as summarized by the appellate court, “the gang participation charge and gang sentencing enhancements violated [California’s Racial Justice Act] by tainting their trial with racially charged and biased evidence.” Because of the multiple issues and the unexplained dissenting vote, it’s not certain which issue or issues attracted Justice Liu’s attention. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
Review denied: $10 million in punitive damages
The court denied review in Team Makena, LLC v. Lasso, in which the Fourth District, Division Three, unpublished opinion, among other things affirmed a $10 million punitive damage award against an individual. The defendant unsuccessfully argued that there was insufficient evidence of his financial condition and that, as a matter of law, the award was too high a percentage of his net worth.
There’s more about the case in Horvitz & Levy’s California Punitive Damages blog. (Here and here.)
