For the fourth conference in a row, the Supreme Court did not accept any case for briefing, oral argument, and written opinion. There hasn’t been a straight grant since the end of March. There were, however, some actions of note at yesterday’s conference, including:

  • LWOP clemency file in line to be partially opened.
  • Another PAGA arbitration grant-and-hold. Galarsa v. Dolgen California, LLC is another grant-and-hold for Adolph v. Uber Technologies, Inc., in which the court limited the issue to: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” Adolph will be argued next week. In Galarsa, the Fifth District Court of Appeal’s belatedly published opinion concluded that “PAGA claims seeking to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in court” and it said, “we disagree with the United States Supreme Court’s conclusion that California law requires the dismissal of those claims.” It was the appellate court’s second decision in the case — after an unpublished opinion affirmed a denial of arbitration of all the plaintiff’s claims and the Supreme Court denied review, the U.S. Supreme Court remanded the case for reconsideration in light of Viking River Cruises.
  • Take home COVID grant-and-hold. The court granted review in Vie De France Yamazaki, Inc. v. Superior Court, but deferred further action pending a decision in Kuciemba v. Victory Woodworks, where the court agreed to answer these questions for the Ninth Circuit: “1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer? 2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?” Like Adolph (see above), Kuciemba will be argued next week. In Vie De France, the Second District, Division Two, summarily denied a writ petition.
  • Another Lemon law grant-and-hold. Williams v. FCA US LLC is a grant-and-hold, waiting on both Niedermeier v. FCA US LLC and Rodriguez v. FCA US, LLC. Niedermeier raises the issues (1) Does the statutory restitution remedy under the Song-Beverly Act (Civ. Code, § 1790 et seq.) necessarily include an offset for a trade-in credit? (2) If the amount that a consumer has received in a trade-in transaction must be subtracted from the consumer’s recovery, should that amount be subtracted from the statutory restitution remedy or from the consumer’s total recovery? In Rodriguez, the court is expected to decide whether a used vehicle that is still covered by the manufacturer’s express warranty is a “new motor vehicle” within the meaning of Civil Code section 1793.22, subdivision (e)(2), which defines “new motor vehicle” as including a “motor vehicle sold with a manufacturer’s new car warranty”? In Williams, the Third District Court of Appeal published opinion answered the first Niedermeier question in the negative, disagreeing with the Second District, Division One, published opinion in Niedermeier and ageeing with the Second District, Division Six, published opinion in Figueroa v. FCA US LLC, which is also a grant-and-hold for Niedermeier (see here). Horvitz & Levy filed the petition for review in Williams and is appellate counsel for the defendant in Rodriguez and Figueroa.
  • Bar admission denial. The court denied a would-be lawyer’s petition for review in Camper on Admission. Although Camper had successfully completed his studies at his law school, the Committee of Bar Examiners refused to let Camper take the bar exam because he didn’t have his degree; the school was withholding his diploma due to his failure to repay a loan issued by the school for tuition and fees. The Committee’s response was that a degree is a prerequisite to sitting for the bar exam and the issue whether the school improperly withheld Camper’s degree was not properly before the court. The petition says that Camper has a pending superior court lawsuit seeking to require the school to grant him a degree. Camper’s reply to the Committee’s response is here.

[May 8 update: “Law student sues to get degree to earn money to repay school”]

  • Jury deliberations during the pandemic. The court denied review in People v. Muhammad, where the Second District, Division Six, published opinion affirmed a murder conviction, rejecting an argument that, as the opinion described it, “the trial court deprived [the defendant] of due process by ‘insisting’ the jury continue deliberating during the initial outbreak of COVID pandemic.” Divisioin Six held, “allowing a jury to deliberate during the COVID pandemic is not coercive and does not deprive a defendant of the due process of law.”
  • Criminal case grant-and-hold. There was but one criminal case grant-and-hold. The case will now join many others waiting for a decision in People v. Lynch (see here).