Here are some actions of note at yesterday’s relatively light pre-Thanksgiving Supreme Court conference, the only conference of the year held on a Tuesday:

  • Intra-division split on criminal appellate procedure. The court granted review in People v. Superior Court (Mitchell) and limited the issues to: “(1) Does Penal Code section 1238 authorize an appeal by the People from a superior court’s post-preliminary hearing, prejudgment order reducing a felony ‘wobbler’ offense to a misdemeanor? (2) If not, may the People obtain review of the order by petition for extraordinary writ?” The Second District, Division Six, Court of Appeal published opinion answered the first question, “yes,” finding appealability because the superior court order “is unauthorized and tantamount to a dismissal of the felony offense.” This case presents yet another intra-division split. (See here, here, here, and here.) In People v. Bartholomew (2022) 85 Cal.App.5th 775, which the Mitchell opinion “disapprove[s],” a 2-1 Division Six panel dismissed as unauthorized an appeal from a wobbler-reduction order. The dissenting justice in Bartholomew authored the unanimous Mitchell opinion. One justice signed both the majority opinion in Bartholomew and the contrary Mitchell opinion. There was no petition for review in Bartholomew. Ironically, the affirmative appealability ruling in Mitchell arises from a prosecution writ petition (a petition that was filed instead of an appeal likely because of the Bartholomew precedent) and Division Six granted the petition and dismissed the appeal as moot.
  • CEQA grant-and-hold. West Adams Heritage Association v. City of Los Angeles is a grant-and-hold for Make UC a Good Neighbor v. Regents of University of California (see here), which raises these issues: (1) Does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) require public agencies to consider as an environmental impact the increased social noise generated by student parties that a student housing project might bring to a community? (2) Under CEQA, when a lead agency has identified potential sites for future development and redevelopment in a programmatic planning document, is the agency required to revisit alternative locations for a proposed site-specific project within the program? In Make UC, the Supreme Court has requested supplemental briefing on the significance of post-review-granted legislation that might resolve the case. (See here.) The Second District, Division One, unpublished opinion in West Adams held Los Angeles City improperly found a proposed housing development near USC was exempt from CEQA review by “rel[ying] on mitigation measures when concluding the project’s rooftop decks would not cause significant noise impacts.”
  • Another ICWA grant-and-hold. Speaking of intra-division splits (see Mitchell above), In re G.H. is another grant-and-hold 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. G.H. is from the Fourth District, Division Two (as is Ja.O.) and shows the continued disagreement in that court on the issue. (See here and here.) The 2-1 unpublished G.H. opinion held there was no duty. The dissent says the distinction made by the majority (and some earlier Division Two decisions) “does not make sense and is not what the Legislature intended.”
  • Release from negligence. Over the recorded dissenting vote of Justice Joshua Groban, the court denied review in Browne v. Foxfield Riding School. A divided unpublished opinion by the Second District, Division Six (again, see Mitchell above), reversed a defense judgment in a case seeking damages for a student’s horseback-riding accident. The trial court had granted a nonsuit on the plaintiffs’ ordinary negligence claim based on a release signed by the student’s mother. (A jury found for the defendants on a gross negligence claim.) The majority held, “The express language of the release here does not ‘clear[ly], unambiguous[ly], and explicit[ly]’ relieve Defendants of liability resulting from their own negligence or for conduct that increased the risks inherent in horseback riding.” The dissent said that the release was clear enough and that “[t]he riding school had a reasonable expectation that it would not be the subject of a lawsuit based on a claim of negligence.”
  • Taxation by initiative. The court also declined to hear (there were five separate unsuccessful petitions for review) Alliance San Diego v. City of San Diego, where the Fourth District, Division One, published opinion held that an initiative to raise occupancy taxes on overnight lodging facilities needed only a majority vote to pass (if it was a citizens’ initiative, an issue Division One directed the trial court to determine on remand), even though ballot materials and the initiative ordinance itself stated a two-thirds vote was required. The Supreme Court has regularly denied review in other cases that, extrapolating from California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924 (see here), found only simple majority votes were necessary to increase taxes by citizens’ initiatives. (See here, here, here, and here.) And it asked for preliminary oppositions to a still-pending writ petition filed by California’s Legislature and its Governor seeking to prevent next year’s November ballot from including an initiative that would counter the simple-majority-vote law stated by numerous opinions, including California Cannabis. (See here.)
  • Criminal case grant-and-holds. There were 2 criminal case grant-and-holds:  one more waiting for a decision in People v. Hardin (see here and here), which will be argued next month; and one holding for the finality of Monday’s opinion in People v. Salazar.