There were no straight grants at yesterday’s day-after-election-day conference, a double one, but there were some actions of note, including:
- Website discrimination. The court denied review in Martinez v. Cot’n Wash, Inc., but Justice Goodwin Liu recorded a vote to hear the case. The Second District, Division One, in a published opinion, affirmed the sustaining of the demurrer to a complaint alleging, as described by the appellate court, that the defendant had violated California’s Unruh Civil Rights Act “by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software.” Rejecting dictum in a Second District, Division Five, opinion (Ruiz v. Musclewood Investment Properties, LLC (2018) 28 Cal.App.5th 15, 21), Division One said the plaintiff could not establish the necessary intentional discrimination by alleging “he made [the defendant] aware of the discriminatory effect of [the defendant’s] facially neutral website, and that [the defendant] did not ameliorate these effects.” It also concluded a “retail website[ ] without any connection to a physical space” is not a “ ‘place of public accommodation’ ” under the federal Americans with Disabilities Act. Division One recognized the federal courts are in conflict on the ADA issue and conceded that the statutory interpretation it was rejecting is “consistent with the general, overall goal of [the ADA].”
- Right to counsel. The court granted review in a pro per prisoner’s case — Gonzalez v. Gerlach — with this interesting order: “The matter is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to consider granting petitioner an additional extension of time to file his opening brief on appeal in light of the Probate Court’s August 19, 2022 order appointing the Public Guardian as successor trustee of the Erik Andrew Gerlach Special Needs Trust and authorizing the successor trustee to ‘proceed as appropriate with respect to the request of Erik Gerlach to locate and retain counsel for him.’ [Citation.] This order is without prejudice to petitioner to renew his request for appointment of counsel should he be unable to obtain counsel for himself. Any renewed request should specifically address whether petitioner is indigent and why he believes appointment of counsel is necessary to preserve his right of access to the courts.”
- Right to direct a defense. The court issued an order to show cause, returnable in the Court of Appeal, in In re Tilei, a pro per prisoner’s habeas corpus petition filed two years ago. Cause is to be shown “why petitioner is not entitled to relief under McCoy v. Louisiana (2018) 584 U.S. ___ [1389 S.Ct. 1500], and why McCoy should not apply retroactively on habeas corpus to final judgments of conviction.” The U.S. Supreme Court in McCoy held “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” The California Supreme Court reversed a death sentence based on McCoy grounds seven months ago in People v. Bloom (2022) 12 Cal.5th 1008. Justices Joshua Groban and Patricia Guerrero did not vote to issue the order to show cause.
- New evidence. In In re Duffey, another pro per prisoner’s habeas corpus petition, this one filed a year ago, the court issued an order to show cause, returnable in the superior court, “why relief should not be granted on the ground the petitioner has presented newly discovered evidence of such decisive force and value that it would have more likely than not changed the outcome at trial. (Pen. Code, § 1473, subd. (b)(3)(A).)” (Link added.)
- Criminal case grant-and-holds. There were three criminal case grant-and-holds: one more holding for People v. Delgadillo (see here), which was argued last month, and two more waiting for People v. Lynch (see here).
- Grant-and-hold disposals. The court took five grant-and-holds off its docket. All were waiting for the August decision in In re Milton (2022) 13 Cal.5th 893 — review was dismissed in three and two were returned to the Courts of Appeal for reconsideration in light of the Milton opinion.
