This is Part II of the recap of Wednesday’s Supreme Court conference. Part I is here.
Dissenting votes: conflict in the law about judicial notice
Justices Corrigan and Groban recorded dissenting votes from the denial of review in Dow v. Gerges. An unpublished Second District, Division Two, Court of Appeal opinion took sides in an existing split of authority about the extent to which a court in one action could judicially notice a different action.
Affirming the grant of anti-SLAPP motions in a malicious prosecution lawsuit, Division Two held that “the content of . . . judicially noticed court files [in another case] . . . could not be considered for the truth of the matters asserted therein.” The unsuccessful Dow plaintiffs wanted to rely on testimony and the jury verdict in a prior defamation action to establish a lack of probable cause to maintain the lawsuit that was allegedly maliciously prosecuted.
Division Two relied on the Second District, Division Three, decision in Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112 and the Fifth District’s opinion in Sosinsky v. Grant (1992) 6 Cal.App.4th 1548. It disagreed with two earlier Second District, Division Three, decisions — Day v. Sharp (1975) 50 Cal.App.3d 904 and Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39; Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457 from the Fourth District, Division One; and the Second District, Division One, opinion in In re Tanya F. (1980) 111 Cal.App.3d 436.
The Supreme Court denied review in Sosinsky and Columbia Casualty. (The court also denied a depublication request in Columbia Casualty, a request Horvitz & Levy opposed.) There was no petition for review in Steed, Day, Weiner, or Tanya F.
Dissenting votes: mental health diversion
Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Fjeld. In a 2-1 unpublished opinion, the Second District, Division Five, affirmed a conviction for assault by means of force likely to produce great bodily injury. The defendant pled no contest to the charge after the superior court denied her motion for statutory mental health diversion, the denial being the subject of the appeal.
The Division Five majority agreed the defendant was eligible for diversion under the statute because “she suffers from a qualifying mental health disorder and that the disorder was a significant factor in the commission of the charged offense” and that she satisfied three of the four factors to determine her suitability for diversion. But it held substantial evidence supported the superior court’s finding that defendant poses an unreasonable risk of danger to public safety if treated in the community.
The dissent said, “What is really going on in this case jumps off the pages of the transcripts of the pertinent hearings: the trial court denied diversion because it was offended defendant gave her cousin [the victim of the assault] the middle finger in court.” Thus, the dissent concluded, “this case falls in the class of cases where a court abuses its discretion by relying on an improper factor in its discretionary determination.”
Dissenting vote: family law financial disclosure requirements
Justice Liu also dissented from the denial of review in Lagerberg v. Lagerberg. The Second District, Division Six, unpublished opinion held the failure of a husband to comply with statutory financial disclosure requirements did not require the setting aside of a marital settlement agreement.
Division Six said that “[c]ourts have excused strict compliance with [financial disclosure] requirements when parties choose to divide their assets and resolve other dissolution-related issues by non-judicial arbitration or mediation” and that, “[w]hether affixing the label ‘mediation’ or ‘uncontested divorce’ to [the] services [provided by the attorney the parties hired], the record shows the parties engaged him to provide a speedy and less costly avenue for dividing their property and navigating the administrative landscape of dissolution.” The appellate court also found a lack of prejudice from the husband’s failure to comply with the disclosure requirements.
Dissenting votes: youth offender LWOP
The court denied review in People v. Aquino, but Justices Liu and Evans recorded votes to hear the case. In affirming murder and robbery convictions, the Fourth District, Division Two, unpublished opinion addresses five different issues (and there are sub-issues), so it’s unclear which issue or issues attracted their attention. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
Our guess is that it’s the last issue — whether it is unconstitutionally cruel and unusual (or cruel or unusual under California’s Constitution) to have sentenced the defendant to life without parole for the crimes he committed when he was 19. According to the opinion, the rejected argument was that LWOP “is an extreme sentence for defendant, whose teenage brain was still developing.” Division Two held the issue was forfeited “[b]ecause defendant did not object to his sentence on this basis in the trial court and did not otherwise offer the necessary factual record.”
Justices Liu and Evans have been regularly dissenting from review denials in youth offender LWOP 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.)
Review denied: public employee pandemic disaster service work
In another case on the court’s pandemic docket, the court denied a county’s petition for review in County of Santa Clara v. Public Employment Relations Board. In an unpublished opinion, the Sixth District annulled a PERB unfair-labor-practices decision and remanded for further proceedings in a matter involving the deployment of a county’s union-represented employees as disaster service workers during the COVID-19 pandemic.
The Sixth District rejected some of the county’s challenges to the PERB’s decision, but concluded that, “as to the county’s threshold decision to deploy represented employees as DSW’s—as distinct from the operational decisions implementing that decision—PERB erred as a matter of law in refusing to consider the public health emergency in assessing whether this was a fundamental managerial or policy decision that was outside the scope of representation.”
