Supreme Court takes three cases and depublishes three opinions; dissenting votes in four review denials

Actions of note at yesterday’s Supreme Court conference included:

• Supreme Court OK’s commutation of three-strikes sentence.
• The court granted review in Pulliam v. HNL Automotive Inc., where the Second District, Division Five, Court of Appeal, in a published opinion, affirmed almost $170,000 in attorneys fees after a jury awarded less than $22,000 for a violation of the Song-Beverly Consumer Warranty Act (commonly known as the “lemon law”) in the sale of a used car.  The Supreme Court has not limited the issues on review, and there are several addressed in the appellate court opinion, but the opinion does create a conflict in the law on one of them:  whether the federal Holder Rule, which gives consumers relief from loans used to purchase what turn out to be defective goods, limits not just compensatory damages but also the attorneys fees a consumer can recover from the lender.  The appellate court concluded the Rule doesn’t limit attorney fees, disagreeing with Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal.App.5th 398 from the Third District and Spikener v. Ally Financial, Inc. (2020) 50 Cal.App.5th 151 from the First District, Division Five.  The Supreme Court denied review in Spikener with Justice Goodwin Liu voting to grant (see here) and denied review and depublication in Lafferty.  [Disclosure:  Horvitz & Levy submitted a letter in Pulliam requesting depublication of the appellate court’s opinion, whether or not the court granted review.  The court denied depublication.]
• The court granted review in People v. Jenkins and it limited the issues to these:  “Where a habeas petitioner claims not to have received a fair trial because the District Attorney failed to disclose material evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 — and where the Attorney General has knowledge of, or is in actual or constructive possession of, such evidence — what duty, if any, does the Attorney General have to acknowledge or disclose that evidence to the petitioner?  Would any such duty be triggered only upon issuance of an order to show cause?”  In an unpublished opinion (People v. Jenkins (Jan. 22, 2021, No. B294747) 2021 WL 222119), for some reason not linked to on the Court of Appeal’s online docket, the Second District, Division One, affirmed a manslaughter conviction and denied a habeas corpus petition.  On the issue now under review, the appellate court concluded “there is no reasonable probability that disclosure of the [evidence in question] would have altered the outcome of trial.”
• The court issued an order to show cause on the habeas corpus petition in In re Ferrell, stating the issue to be whether “the jury’s true finding on the Penal Code section 12022.53, subdivision (d) enhancement did not render the People v. Chun (2009) 45 Cal.4th 1172 error harmless beyond a reasonable doubt.”  The Second District, Division Six, denied habeas relief in an unpublished opinion that expressly disagreed with a 2020 decision by the Second District, Division One (People v. Offley (2020) 48 Cal.App.5th 588), in which no petition for review was filed.  Division Six concluded an erroneous felony-murder instruction was harmless.
• The court denied review in Plascencia v. Deese, but it depublished the opinion by the Second District, Division Six.  Justice Liu recorded a vote to grant the petition.  The appellate court overturned an eight-figure judgment in a wrongful death case, reversing as to damages only.  It held there was prejudicial error in the superior court not allowing the jury to consider the comparative fault of three settling defendants, and also in misconduct in plaintiff’s attorney’s “Golden Rule argument and ad hominem attacks on defense counsel,” even though there were no objections to the misconduct.
• The court granted a request to depublish the Fourth District, Division One, opinion in Atlas Construction Supply, Inc. v. Swinerton Builders, which held one defendant in a wrongful death action did not have standing to challenge an order granting a co-defendant’s motion for summary judgment against the plaintiffs.  There was no petition for review.
• The court denied review in People v. Burgess, but it depublished the opinion of the Fourth District, Division One.  Additionally, Justice Liu recorded a vote to hear the case.  The appellate court affirmed a conviction for possession of a firearm — in this case, 70 firearms — in violation of an express probation condition, rejecting the argument that because the condition was imposed by a probation department (in Pennsylvania) and not by a court, violation of the condition was insufficient to support the conviction.  The relevant statute provides the possession crime occurs when there’s been a violation of “an express condition of probation,” but a form Judicial Council instruction that was given to the jury says an element of the crime is that “a court had ordered that the defendant not own or possess a firearm.”  (Emphasis added.)  The opinion said the Council’s form instructions “are not binding.”
• The court denied review in In re Y.G., but Justice Liu recorded a vote to grant the petition.  The unpublished opinion of the First District, Division One, affirmed the sustaining of a wardship petition for misdemeanor vehicular manslaughter.  Among other things, the court rejected an argument that the defendant’s “conduct should have been measured against a reasonably prudent juvenile” instead of against the adult standard of care.
• The court denied review in People v. Ramos, but Justice Joshua Groban recorded a vote to grant review.  A divided unpublished Fifth District opinion affirmed convictions for lewd acts on a minor and found harmless the superior court’s mistaken interpretation of a sentencing statute.  The dissenting justice said the case should have been remanded for a sentencing hearing before “a fully and properly informed trial judge exercising the discretion to impose consecutive as opposed to concurrent sentences.”
• Denying review in Howard Jarvis Taxpayers Association v. City and County of San Francisco, the court again showed no interest in addressing a taxing question left open by its 2017 5-2 decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924.  After that opinion issued, the court was criticized for not explaining whether initiatives imposing tax increases are subject to the same two-thirds-vote requirement as are taxes enacted by government bodies.  (See here and here.)  The published opinion of the First District, Division Five, held only a majority is necessary to approve a tax increase by voter initiative.  The Supreme Court has denied review in at least two other cases reaching the same conclusion.  (See here and here.)  (Related:  The Supreme Court doesn’t decide all important issues.)
• In  a case in which it granted review last week, Tansavatdi v. City of Rancho Palos Verdes, the court limited the issue to:  “Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?”
• There were 11 criminal case grant-and-holds:  six more holding for a decision in People v. Lewis (see here), which will be argued next month; two more holding for Lewis and People v. Strong (see here) (that’s a total of 257 Lewis grant-and-holds); one more holding for People v. Delgadillo (see here); one more holding for People v. Duke (see here); and one holding for People v. Renteria (see here and here).