The Supreme Court didn’t straight grant any cases at its Wednesday conference, a double one. But there were some notable actions, including an unusual grant-and-hold.
This recap will be updated with additional actions.
Another headless PAGA grant-and-hold
CRST Expedited, Inc. v. Superior Court is another grant-and-hold for Leeper v. Shipt, Inc. (see here), in which the court limited the issues to: “1.) Does every Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? 2.) Can a plaintiff choose to bring only a non-individual PAGA action?”
Saying “PAGA is not an ordinary statute,” the partially published Fifth District Court of Appeal opinion in CRST held an employee is allowed “to bring a PAGA action . . . for the Labor Code violations suffered only by other employees” and thus avoid arbitration of the employee’s individual claims, arbitration that could delay or scuttle the non-individual claims.
Because the underlying Leeper lawsuit has been dismissed at the plaintiff’s request, we guessed the Supreme Court would dismiss review in Leeper and straight grant in another case raising the same issues. That hasn’t happened. In fact, the parties are in the middle of briefing in Leeper, the opening brief having been filed in July. Other Leeper grant-and-hold are Rodriguez v. Packers Sanitation Services Ltd., LLC (see here), Williams v. Alacrity Solutions Group, LLC (see here), and Osuna v. Spectrum Security Services, Inc. (see here).
Another forum selection grant-and-hold
Pelascini v. Airstream, Inc. is another grant-and-hold for Lathrop v. Thor Motor Coach (see here), 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.
In Pelascini, the First District, Division Three, unpublished opinion held void a contractual agreement to litigate in another state despite the defendant’s willingness to apply California law for the lawsuit.
Dissenting votes: whistleblower attorney fees
The court denied review in Lampkin v. County of Los Angeles, but Justices Goodwin Liu and Kelli Evans recorded dissenting votes.
The Second District, Division Four, held in a published opinion that a plaintiff who proved the elements of a whistleblower retaliation claim was not entitled to statutory attorney fees because the defendant had established the affirmative defense that the retaliatory action would have occurred for legitimate, independent reasons had there been no whistleblowing.
Dissenting vote: police misconduct records
Justice Joshua Groban recorded a dissenting vote in City of Vallejo v. Superior Court.
The First District, Division One, in a published opinion, allowed for the public disclosure of some records of an investigation into certain officers in a city’s police department who were reportedly bending a point of their star-shaped badge to commemorate fatal shootings of suspects. Division One remanded for further proceedings concerning whether officer names should be redacted.
Dissenting votes: SB 1437 murder resentencing denial
Justices Liu and Groban recorded dissenting votes from the denial of review in People v. Patrick.
In a 2-1 unpublished opinion, the Third District affirmed the denial of a Penal Code section 1172.6 resentencing petition filed by a defendant who had been convicted of two murders before the Legislature, in Senate Bill 1437, eliminated murder liability under the natural and probable consequences doctrine and significantly limited the scope of the felony murder rule. The superior court concluded the defendant had not made a prima facie showing of entitlement to relief, a showing that would have triggered an evidentiary hearing.
The majority concluded that, under the issue preclusion doctrine, the jury findings at the defendant’s trial that he discharged a firearm causing great bodily injury or death to each victim conclusively established his ineligibility for relief. The dissent asserted the petition shouldn’t have been denied at the prima facie stage because the jury had not been “asked to, and did not necessarily, find that [the defendant’s] discharge of a firearm killed the victims.”
More dissenting votes: juvenile de facto LWOP resentencing
Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Sutton. In an unpublished opinion, the Fourth District, Division Two, affirmed the denial of a resentencing petition by a defendant who was sentenced to a 40-years-to-life term for crimes committed when he was 15.
The defendant 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.” Division Two held the defendant’s sentence was not functionally equivalent to an LWOP sentence because “defendant here will be eligible at age 50 for the Elderly Parole Program” and otherwise could be parole eligible when he’s 49 or 55.
In June, the Supreme Court 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.)
The court’s denial of review in Sutton is “without prejudice to any relief to which defendant might be entitled after this court decides . . . Munoz.” As opposed to the denial of review, there were three Munoz grant-and-holds at the conference. (See below.)
More dissenting votes: youth offender parole denial
Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Rodriguez. The Second District, Division One, in an unpublished opinion, rejected constitutional challenges to the 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 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.)
Racial Justice Act grant-and-transfer
After the Second District, Division Eight, summarily denied a pro per’s habeas corpus petition, the Supreme Court granted review in In re Sherman and directed Division Eight to issue an order to show cause, returnable in the superior court, “why the petition does not satisfy the statutory requirements for the appointment of counsel under the Racial Justice Act [here and here] in light of statistical data provided by petitioner demonstrating racial disparities in the imposition of Three Strikes sentences in Los Angeles County. (Pen. Code, § 1473, subd. (e) [providing for the appointment of counsel for an indigent petitioner who alleges facts constituting a violation of the Racial Justice Act].)” (Links added.)
The court has made orders like these before. (See recently here.)
OSC: right to appear at resentencing hearing
Ruling on a pro per’s partially handwritten habeas corpus petition in In re Marks, the court issued an order to show cause, returnable in superior court. The defendant asserts he was unconstitutionally denied his right to be present at a resentencing hearing and his counsel was ineffective in not having him present.
Clemency recommendations
The court granted Governor Gavin Newsom’s requests (here and here) for constitutionally required recommendations that allow him to pardon Sandra Johnson and Ben Chambers. According to the Governor’s requests, Johnson was convicted in 1982 of forgery and, in 1988 and 1991, of drug-related offenses, and Chambers was convicted in 1978 of second degree burglary and, in 1987, he 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 82 of his other requests (not counting four that are still pending). 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.
New evidence grant-and-transfer
The court granted review in In re Thomas and sent the case back to the Second District, Division Five, which had summarily denied a habeas corpus petition. The Supreme Court ordered issuance of an order to show cause, returnable in the superior court, “why petitioner is not entitled to relief on the ground that ‘[n]ew evidence exists that is presented without substantial delay, is admissible, and is sufficiently material and credible that it more likely than not would have changed the outcome of the case.’ (Pen. Code, § 1473, subd. (b)(1)(C)(i).)”
Criminal case grant-and-holds
There were five criminal case grant-and-holds this week: one waiting for decisions in People v. Mitchell (see here and here) and People v. Eaton (see here), another one holding for just Eaton, and three more on hold for People v. Munoz (see here).
One Munoz grant-and-hold featured an untimely petition for review filed with permission. (See: Getting relief for a late petition for review might not be a hopeless cause.)
An unusual grant-and-hold
Another of the Munoz grant-and-holds — People v. Caddell — was particularly unusual. The court granted review on the court’s own motion at the request of the Riverside County District Attorney’s office. The Attorney General — the People’s counsel on appeal — didn’t file a petition for review, but, almost a month after the DA’s request, submitted his own request to grant review on the court’s own motion. The court struck the AG’s request, citing rule 8.500(a), implying that a party’s only option is to file a petition for review. The AG’s request was submitted 10 days after the last day to file a petition for review and the AG did not seek leave to file an untimely petition (see the preceding paragraph).
It’s unclear what the thinking was behind the AG’s Supreme Court litigation strategy, especially because a petition for review seemed clearly grant-worthy. Besides raising an issue before the court in Munoz, the Fourth District, Division One, unpublished opinion (the case was transferred to Division One from Division Two) expressly disagreed with another division’s decision. (That decision is the Munoz grant-and-hold with the untimely petition for review, discussed above.)
Another unusual feature of this grant-and-hold was the court’s denial of the defendant’s application for relief to allow filing of an opposition to the request to grant review on the court’s own motion. The court said the opposition was due 15 days after the DA’s request was filed. The court apparently treated the request as a motion instead of the equivalent of a petition for review, which cut the response time to 15 days (for opposition to a motion under rule 8.54(a)(3)) instead of 20 days (for an answer to a petition for review under rule 8.500(e)(4)). (Not that it mattered much in this case — the opposition was submitted more than a month after the request.)
Grant-and-hold dispositions (see here)
Still working on disposing of the large number of cases that were grant-and-holds for the June sentencing retroactivity decision in People v. Rhodius (2025) 17 Cal.5th 1050, the court dismissed review in five matters and remanded one to the Court of Appeal for reconsideration in light of Rhodius. It also changed the lead case to People v. Espino for others (see here). By our count, the court has now ruled on 190 Rhodius grant-and-holds.
