At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, there were no straight grants, but there were actions of note, including:
- Arbitration: Zhang v. Superior Court is the latest chapter in high-profile litigation between the Dentons law firm and one of its former partners. (See here and here.) After the Second District, Division Eight, Court of Appeal summarily denied the former partner’s writ petition seeking to stop a New York arbitration of the dispute, the Supreme Court ordered the appellate court to decide the petition on the merits. The petition concerns the interplay between Labor Code section 925, which bars requiring an employee “who primarily resides and works in California” to agree “to adjudicate outside of California a claim arising in California,” and Code of Civil Procedure section 1281.4, which requires staying California litigation when another state’s court “has ordered arbitration of a controversy which is an issue involved in” the litigation.
- Habeas OSC; denial of review in similar case: In In re Tellez, the court granted review and ordered the Fourth District, Division One, to issue an order to show cause why the habeas corpus petitioner should not be granted relief “on the ground trial counsel rendered ineffective assistance by failing to advise petitioner of the potential for commitment as a sexually violent predator as a consequence of his plea.” The appellate court had summarily denied the habeas petition, but issued a detailed order explaining its reasoning. Among numerous other reasons, the order relied on its own recent holding in People v. Codinha (2021) 71 Cal.App.5th 1047, 1053, that “[c]ounsel was not obligated to advise Appellant that an SVP commitment was a possible consequence of his plea.” Although directing the order to show cause in Tellez, the Supreme Court yesterday denied review in Codinha. Maybe Tellez is a better vehicle for the issue than Codinha. (See here.)
- American Indian gaming: The court denied review in Rincon Band of Luiseño Mission Indians v. Flynt, but Justice Goodwin Liu recorded a vote to grant. The published opinion of the Fourth District, Division One, upheld the dismissal of a lawsuit by two American Indian tribes and others against non-tribal cardrooms, claiming, as paraphrased by the appellate court, that the cardrooms “were offering banked card games on non-tribal land, in violation of the exclusive right of Indian tribes to offer such games.” The appellate court held the tribes, as “sovereign governmental entities,” don’t have standing to sue as “persons” under California’s Unfair Competition Law or as “private persons” under public nuisance statutes. It also concluded the plaintiffs could not seek declaratory relief under a state constitutional provision and Penal Code statutes that proscribe gambling.
- Retroactive legislation: Justice Liu also dissented from the denial of review in People v. Bunge, where the Third District’s unpublished opinion held the defendant could not take advantage of 2020 legislation that reduced some maximum probation periods. The defendant was imprisoned for probation violations that occurred before the legislation took effect, but when he had been on probation for longer than would have been allowed under the amended statute.
- Strike improperly struck: The court denied review and a depublication request in People v. Vasquez, but Justices Liu and Joshua Groban recorded votes to grant review. A divided Fourth District, Division Three, published opinion held the superior court abused its discretion in striking a prior strike conviction, concluding, the defendant “falls squarely within the letter and the spirit of the ‘Three Strikes’ law” and “there are no extraordinary circumstances—none—that justify a departure from” that law. The dissent said “[t]here are no ‘good boys’ ” who present for sentencing with two prior strikes, but “the prosecution has not carried its burden to demonstrate the trial court’s sentencing decision was irrational or arbitrary,” even though “the deference we must pay to the trial court’s judgment is sometimes a bitter pill to swallow where an appellate court justice strenuously disagrees with a trial court’s assessment.”
- New-Legislation Grant-and-Transfer: The court granted review and transferred one more matter back to the Court of Appeal for reconsideration in light of new legislation, Assembly Bill 124 in this case.
- Criminal case grant-and-holds: There were four criminal case grant-and-holds, all holding for a decision in People v. Strong (see here).
- Lead case change: People v. Pardo had been a grant-and-hold waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 and also for People v. Lopez, which was transferred in November to the Court of Appeal for reconsideration in light of SB 775. The court has now made Pardo a grant-and-hold for Strong (see above).
- Disposal of grant-and-holds: The court got rid of 33 more criminal case grant-and-holds. 14 cases that had been holding for People v. Lopez, which was transferred to the Court of Appeal for reconsideration in light of SB 775 (see above), were themselves transferred for reconsideration in light of SB 775. Reconsideration in light of SB 775 was also ordered for one case that was on hold for Lopez and for People v. Gentile (2020) 10 Cal.5th 830 (see here). Review was dismissed in nine cases that had been holding for People v. Lewis (see above). Eight cases that were holding for both Lopez and Lewis, and one case that was holding for Lopez, were transferred for reconsideration in light of the Lewis opinion and SB 775. By our count, there are 52 other Lewis grant-and-holds still pending. There had been 327 of them. (See here.)
