Yesterday’s Supreme Court conference was the third in a row without a straight grant.
And, yes, it was still a short-handed conference, with just six justices participating, because Governor Newsom has left unfilled an almost 12–month-long vacancy on the court. That’s gotta end soon, right? There are only 74 days left in Newsom’s term.
Another forum selection grant-and-hold
CIM Real Estate Credit, LLC v. Superior Court is another grant-and-hold for Lathrop v. Thor Motor (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?”
The Second District, Division One, Court of Appeal summarily denied the writ petition in CIM.
Horvitz & Levy is appellate counsel for the defendants in Lathrop and two other Lathrop grant-and-holds. (See here.)
Palma notice: State Bar disciplinary proceeding
In the original writ proceeding in Rifat v. State Bar, the court issued a Palma notice telling the parties it might “issue a peremptory writ in the first instance.”
The court warned that the contemplated writ would “direct[ ] the State Bar to remove the September 11, 2026 designation of ‘Not eligible to practice law in CA’ from petitioner’s attorney profile on the State Bar’s website and to accept proof of petitioner’s 2025 compliance with the following probation conditions: State Bar of California Ethics School; E-Learning Course Reviewing Rules and Statutes on Professional Conduct; Review Rules and Statutes on Professional Conduct; and Multistate Professional Responsibility Examination.”
This type of notice, named after the court’s decision in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, presages what the court has called an “accelerated procedure [that] dispenses with the issuance of an alternative writ, and with the requirement that the Court of Appeal afford an opportunity for formal briefing and oral argument before ordering that a peremptory writ issue.” (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241.) The procedure is used “only when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . or when there is an unusual urgency requiring acceleration of the normal process.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
As the Brown quote indicates, the Palma procedure is almost always used in the Courts of Appeal. A Palma notice in the Supreme Court is very rare. (See here.)
Dissenting votes: “Yelp law”
The court denied review in Arterberry v. Peet’s Coffee, Inc. and Moss v. GoDaddy.com, LLC, but Justice Liu recorded dissenting votes to hear both cases. The cases involve standing to sue under Civil Code section 1670.8. Enacted in 2014, the statute that the Arterberry court said is “known colloquially as the ‘Yelp law,’ protects the right of consumers to post negative reviews of businesses on platforms such as Yelp.com.”
In Arterberry, the Second District, Division One, in a published opinion, held that section 1670.8 “unambiguously allows a consumer to bring a suit for monetary penalties only when a seller attempts to enforce such a provision or otherwise seeks to penalize a consumer.” Similarly, in an unpublished opinion, the Second District, Division Four, held in Moss that the plaintiffs could not recover civil penalties under the statute because they didn’t “allege that defendants made threats or took actions to enforce the terms of service or otherwise penalize them.”
Dissenting votes: presence at competency hearing
Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Maldonado. The Second District, Division Eight, published opinion rejected the argument of the convicted defendant — who claimed a witch named Perla made him rape his daughter — that he had a constitutional right to be present at a pretrial hearing to assess his competency to stand trial.
Division Eight concluded that any error was harmless because the defendant’s “presence would not have increased the fairness of his hearing.” In a separate concurrence, the author of the lead opinion claimed “there was no error at all.” He wrote that, if the defendant was incompetent, “[b]y definition, . . . he then would have been unable to make a rational decision about whether to testify.”
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 Soto, 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 the appointment of counsel pursuant to Penal Code section 1473, subdivision (e), as to petitioner’s claim that in light of statistical data demonstrating racial disparities in arrests for violent offenses, where a complaint was sought, in Merced County and to the disclosure of discovery pursuant to Penal Code, section 745, subdivision (d) [providing for the disclosure of evidence relevant to a potential violation of the Racial Justice Act in the possession or control of the state].”
The court has made many orders like this before, although some involve claims of case-specific RJA violations instead of, as in Soto, claims of systemic racism. (See here and, recently, here.)
Agency input sought: what’s organic?
The court invited two state agencies to give their views on the issue in Environmental Democracy Project v. Rael, Inc., a case in which the Court of Appeal held that selling feminine hygiene products as “organic” and as “made with” organic ingredients can violate the California Organic Food and Farming Act. (See here.) As summarized by Supreme Court staff (see here), the issue is: “Does the California Organic Food and Farming Act (COFFA) (Health & Saf. Code, § 110810 et seq.; Food & Agr. Code, § 46000 et seq.) apply to personal care products marketed as organic?”
The court’s order invites “[t]he Secretary of the California Department of Food and Agriculture and the Director of the California Department of Public Health . . . [to] file a joint amicus curiae brief, or separate amicus curiae briefs if preferred, addressing the issue presented in this case.”
The defendant’s reply brief on the merits is currently due November 9.
Pardons recommended
The court granted Governor Newsom’s requests — made last month — for the constitutionally required recommendations that allows him to pardon Michael Heck and Khamphang Sida.
The Governor’s requests stated:
“In 1990, Mr. Heck was convicted of taking a vehicle without the owner’s consent. In 1995, Mr. Heck was convicted of second degree burglary. In 2002, Mr. Heck was convicted of second degree burglary, forgery, false personation, and unlawful use of personal identification.”
“In 1998, Mr. Sida was convicted of possession of a controlled substance. In 2004, Mr. Sida was convicted of possession of a controlled substance for sale.”
Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 115 of his other requests. (Not counting 9 requests that are still pending, including four for permission to commute life without parole sentences.) That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.
Criminal case grant-and-holds
There was just one criminal case grant-and-hold, another one waiting for a decision in People v. Eaton (see here), which is scheduled for argument next month.
Grant-and-hold dispositions (see here)
The court took three cases off its docket that had been waiting for the Mayor v. Workers’ Compensation Appeals Board (2026) 20 Cal.5th 874 decision. (See here.) (Horvitz & Levy filed an amicus brief and presented oral argument.)
Review was dismissed in one: Zenith Insurance Company v. Workers’ Compensation Appeals Board. (See here.) (Horvitz & Levy is appellate counsel for the petitioners.)
The other two were remanded to the Courts of Appeal for reconsideration in light of the Mayor opinion: City of Salinas v. Workers’ Compensation Appeals Board (see here) (Horvitz & Levy requested depublication) and Tristar Risk Management v. W.C.A.B. (see here).
