Four straight grants of review at Wednesday’s conference

At its conference yesterday, a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement less than two weeks ago, the Supreme Court straight granted four petitions for review.  Those, and other actions of note, were:

• Supreme Court will decide constitutionality of LGBT rights legislation.
• Four-justice separate statement, citing amicus letters, urges legislative action on vessel speed limit statute.
• Supreme Court signs off on two more clemency grants.
• The court granted review in People v. Mumin and it limited the issues to:  “Did the trial court err by providing a kill zone instruction?  Did the Court of Appeal apply the proper standard of review under People v. Canizales (2019) 7 Cal.5th 591 [see here] in holding the trial court did not err in providing the kill zone instruction?”  The Fourth District, Division One, Court of Appeal, in a published opinion, affirmed a conviction of, among many other things, two counts of premeditated attempted murder of a peace officer.  It concluded a kill zone instruction is OK if “the evidence supports a reasonable inference that the defendant had the requisite intent [i.e., the intent to kill everyone in the zone of fatal harm], even if our review of the evidence indicates the opposite inference would also be reasonable.”  The appellate court criticized a 2020 opinion by the Second District, Division Seven.
• The court also agreed to hear Law Finance Group, LLC v. Key, where the published opinion of the Second District, Division Two, reinstated an arbitration award the superior court had vacated, concluding that the defendant had untimely challenged the award and that estoppel or waiver did not excuse the lateness.  The appellate court did not reach the underlying merits, which concern whether a loan to finance a probate lawsuit was a commercial loan or was governed by the California Financing Law applicable to consumer loans.  The Supreme Court has not limited the issues on review, at least not yet.  It’s possible the petition for review and the answer — which we haven’t seen — already did the limiting.
• A fourth straight grant was in Turner v. Victoria, where the Fourth District, Division One, published opinion framed the issue this way:  “whether a director of a nonprofit public benefit corporation who brings an action on behalf of the nonprofit public benefit corporation can lose standing to pursue its claims if the director is not reelected during the litigation.”  Relying on statutes and “public policy considerations,” the appellate court held that the director does lose standing under those circumstances, but that the corporation can be protected by the Attorney General, “who may pursue any necessary action either directly or by granting an individual relator status.”
• The court granted the request of the Family Violence Appellate Project and 16 other organizations and individuals to depublish the opinion of the Fourth District, Division One, in Marriage of L.R. and K.A.  The appellate court reversed a domestic violence restraining order against a mother and in favor of a father and the parents’ 10-year-old daughter.  The court — with one justice concurring in the result only — concluded that the mother’s “conduct — although demonstrating poor co-parenting — did not rise to the level of destroying Father’s mental and emotional calm to constitute abuse within the meaning of the Domestic Violence Prevention Act.”
• The court denied review in In re Jones, but Justice Goodwin Liu recorded a vote to grant.  The First District, Division Four, in a 2-1 unpublished opinion (2021 WL 3260322), followed its People v. Morales (2021) 67 Cal.App.5th 326 decision that a parole eligibility statute applicable to minors — but not to young adult offenders — sentenced to life without parole doesn’t violate equal protection principles.  Justice Liu (along with Justice Cuéllar) also dissented when the Supreme Court denied review in Morales last month.  Earlier, he twice issued separate statements on that constitutional issue.  (See here and here.)
• Justice Liu recorded another dissenting vote from the denial of review in In re Murray.  It’s the same issue as in Jones and Morales (see directly above).  The published opinion of the First District, Division Two, held “there is a rational basis for distinguishing between juvenile and youthful LWOP offenders” regarding parole eligibility.
• Justice Liu also dissented from the denial of review in People v. Nolasco, where the published opinion of the Second District, Division Two, found no equal protection violation in using one of two different statutory procedures for detaining persons who are incompetent to stand trial for a felony that entails a threat of bodily harm and who continue to pose a danger to others.
• Newly enacted Senate Bill 775 (Stats. 2021, ch. 551) (see also here) continues to impact the docket.  (See here.)  The legislation expands the category of defendants who are covered by statutory resentencing provisions.  Two years ago, the court granted review (for a second time) in People v. Lopez.  (The notice of appeal was filed more than five and a half years ago!)  It had been fully briefed since March until the court asked for supplemental briefing last month about “the significance, if any,” of SB 775.  There apparently is some significance, because the court has now remanded the case to the Court of Appeal for reconsideration in light of the new legislation.  Besides Lopez, the court also granted review in three other cases and immediately transferred them back to the Courts of Appeal for reconsideration in light of SB 775.
• Other recent legislation led to one further grant-and-transfer order.  The case was sent back for reconsideration in light of Assembly Bill 333 (Stats. 2021, ch. 699).  The bill narrows the potential liability for criminal street gang activities.
• The court denied review in Leavitt v. Johnson & Johnson, where the First District, Division Five, in an unpublished opinion affirmed a nearly $30,000,000 judgment after a jury found that Johnson’s Baby Powder was contaminated with asbestos and caused the plaintiff’s mesothelioma.
• There were 10 criminal case grant-and-holds:  five more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), two more holding for In re Vaquera (see here); one more holding for People v. Hernandez (see here and here), and one more holding for People v. Braden (see here).
• The court took action in eight more Lewis grant-and-holds following its July decision in People v. Lewis (2021) 11 Cal.5th 952.  Six cases were kept on hold for People v. Strong (see here), and review was dismissed in two others.  By our count, there are 245 Lewis grant-and-holds still pending.