Here are some notable actions at yesterday’s double conference:
Supreme Court will answer Ninth Circuit’s damages-limitation question.
Reinstating a removed judge to the bar. In Laettner on Reinstatement, the court, following the State Bar’s recommendation, ended John Laettner’s suspension from practicing law. Four years ago, Laettner was removed from the bench by a Commission on Judicial Performance decision the court declined to review. (See here.) The court had refused to lift the suspension in 2022, again on the Bar’s recommendation. (See here.)
Three Strikes sentence. The court issued an order to show cause in response to the habeas corpus petition in In re Green. Cause is to be shown in the First District, Division Four, Court of Appeal, “why petitioner is not entitled to relief based on his claim that his 35 years to life sentence under California’s Three Strikes Law is disproportionate to his culpability and constitutes cruel or unusual punishment under the California Constitution, Article 17 [sic: Article I, section 17], and People v. Avila (2020) 57 Cal.App.5th 1134.” In 2022, a Division Four unpublished opinion affirmed the denial of Green’s petition for a recall of his sentence under Penal Code section 1170.91, which makes post-traumatic stress disorder and other circumstances resulting from military service mandatory mitigating factors in sentencing a criminal defendant (see here). A year ago, the appellate court summarily denied another Green habeas petition. Last month, the Supreme Court denied a habeas petition by Green — with Justice Joshua Groban dissenting — that sought clarification of the standard for determining whether someone is suitable for parole. (See here.)
More ICWA intra-division split grant-and-holds. In re L.C. and In re S.J. are yet additional grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See here, here, here, and here.) The divided unpublished Division Two opinions in L.C. and S.J. found no extended duty of inquiry.
PAGA arbitration. Earlier this week, the Ninth Circuit decided to follow the California Supreme Court’s interpretation of California’s Private Attorneys General Act in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 rather than the U.S. Supreme Court’s in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639. (See here.) The Fourth District, Division Three, had done the same in an unpublished opinion several months earlier in the Adolph case itself, after remand from the State high court. Division Three held, “The United States Supreme Court’s contrary decision does not bind the California Supreme Court.” The California Supreme Court declined to revisit Adolph when it yesterday denied review of the latest Division Three opinion in the case.
COVID and timely civil trial. The court denied review in Oswald v. Landmark Builders, where the First District, Division Three, published opinion affirmed dismissals for failure to bring an action to trial before a statutory deadline. Although “recogniz[ing] the COVID-19 pandemic has been an extraordinary event impacting every facet of society including the legal profession and the courts,” Division Three found inapplicable a tolling provision for “the time during which bringing the action to trial was impossible, impracticable, or futile despite a plaintiff’s reasonable diligence.” The plaintiffs unsuccessfully sought to exclude from the statutory time “approximately 16 months of courtroom closure (March 16, 2020 to July 1, 2021) related to the COVID-19 pandemic.” The appellate court concluded “plaintiffs’ failure to timely commence trial was due to a lack of reasonable diligence, i.e., they were never ready for trial during the relevant periods,” noting the trial court’s finding that ‘pretrial discovery was available through ‘virtual platforms such as Blue Jeans and Zoom, and emergency rules allowing remote depositions.’ ” The court said, “We will not accept plaintiffs’ repeated invitation to adopt the absurd rule that time to commence trial is tolled under section 583.340(c) whenever a courtroom is not available for trial without consideration of a plaintiff’s readiness for trial.”
Criminal case grant-and-holds. There were six criminal case grant-and-holds: one more waiting for a decision in People v. Hardin (see here and here), which was argued two months ago (video here); four more holding for People v. Walker (see here); and one more waiting for People v. Emanuel (see here).
Grant-and-hold disposals. The court returned three cases to the Courts of Appeal for reconsideration in light of the decisions they were on hold for. In re Kieran S. was a grant-and-hold for In re N.R. (2023) 15 Cal.5th 520 (see here). Two related cases were waiting for Rodriguez v. Superior Court (2023) 15 Cal.5th 472 (see here).