After four conferences in a row without a straight grant, yesterday’s conference added two new cases to the docket. It was a big double conference; the court ruled on 171 matters.
This Part I reports on some of the highlights. [Update: Part II is here.]
Posthumous pardon recommendation
Supreme Court approves posthumous pardon for Medal of Honor recipient.
Life insurance policy lapses
Supreme Court will answer Ninth Circuit’s question about lapsing life insurance policies.
PAGA-arbitration review on court’s own motion
Nobody asked for it, but the court granted review on its own motion in Leeper v. Shipt, Inc., an employment law case. (There were two depublication requests, however.) 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?”
The issues are important concerning arbitration. The Second District, Division One, Court of Appeal published opinion held that “every PAGA action necessarily includes an individual PAGA claim.” Because of that conclusion, and because of U.S. and California Supreme Court case law (see Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 [see here]), Division One concluded the plaintiff cannot avoid arbitration of the individual claim, even if an individual claim is not pleaded, which in turn requires a stay of court proceedings on the representative claim.
Racial Justice Act OSC
The court issued an order to show cause, returnable in the superior court, in In re Johnson, a pro per’s habeas corpus petition. Cause is to be shown “why the petition does not satisfy the statutory requirements for the appointment of counsel under the Racial Justice Act [see here and here]. (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].)”
Work product waiver grant-and-transfer
The court granted review in Paknad v. Superior Court and sent the case back to the Sixth District — which had summarily denied a writ petition — for a decision on the merits. The transfer order states, “The response to the order to show cause should address the application of People v. Superior Court (Jones) (2021) 12 Cal.5th 348, 361-64 (‘Jones’) [see here] and Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 126, 128, (as cited in Jones at p. 364) to this matter.” The cited cases concern implied waiver of protections of the attorney work product doctrine.
This writ proceeding apparently follows the Sixth District’s earlier unpublished opinion finding waiver of the attorney-client privilege as part of a discovery dispute in an employee’s lawsuit for sexual harassment, gender discrimination, and unlawful retaliation. That opinion was issued only after the Supreme Court had granted-and-transferred following another Sixth District summary denial of a writ petition.
Late arbitration fees grant-and-hold
Colon-Perez v. Security Industry Specialists, Inc., an employment case, is another grant-and-hold for Hohenshelt v. Superior Court (see here), in which the court is expected to address whether the Federal Arbitration Act preempts state statutes prescribing the procedures for paying arbitration fees and providing for forfeiture of the right to arbitrate if timely payment is not made by the party who drafted the arbitration agreement and who is required to pay the fees. The partially published opinion of the First District, Division One, held there is no FAA preemption.
Pitchess motion dissenting votes
Over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans, the court denied review in People v. Bass. An unpublished 2-1 Fourth District, Division Two, opinion affirmed a conviction for resisting an executive officer and resisting arrest, rejecting an argument that the superior court erred by denying, without review of documents, the defendant’s motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 for discovery of the personnel files of the arresting officers.
The majority concluded the declaration the then-self-represented defendant submitted in support of his motion was procedurally and substantively insufficient. But the dissent said both that, although the “motion was procedurally irregular in several ways,” the irregularities were not fatal and that the majority incorrectly found the defendant “presented a factual scenario insufficient to establish good cause for discovery of evidence of dishonest behavior in the arresting officer’s personnel files.”
Firearm assault dissenting vote
Justice Liu also recorded a dissenting vote from the denial of review in People v. Cornejo. The Third District 2-1 unpublished opinion held there was sufficient evidence to support the defendant’s conviction for assault with a firearm on a peace officer despite the defense argument that the single bullet in his gun was incapable of firing. The majority found “substantial evidence that his revolver was operable and loaded with a live round.” The dissent disagreed with that assessment, and said, “Unless it could be used as a bludgeon, a firearm incapable of firing a bullet does not have a present ability to commit violent injury.” The dissenter argued the evidence was insufficient because the bullet had failed to fire at least once and the prosecution had not tested the bullet.
In a somewhat related case, People v. Lattin, Justice Joshua Groban last month dissented from the denial of review. (See here.)
Criminal case grant-and-holds.
There were 16 criminal case grant-and-holds: two more waiting for a decision in People v. Emanuel (see here), which was argued last month; a dozen more on hold for People v. Rhodius (see here), which was argued last week; one more holding for People v. Wiley (see here), which was also argued last week; and one more waiting for People v. Lopez (see here).
Criminal case grant-and-transfer
The court granted review in one case and transferred it to the Court of Appeal for reconsideration in light of the March murder resentencing opinion in People v. Patton (2025) 17 Cal.5th 549 (see here).
