At the Supreme Court’s Wednesday conference yesterday, actions of note included:

  • Supreme Court will answer Ninth Circuit employment discrimination question.
  • Jury trial waiver. The court granted review in TriCoast Builders, Inc. v. Fonnegra, where the Second District, Division Two, Court of Appeal, in a 2-1 published opinion, affirmed a defense judgment after the plaintiff waived a jury trial by not timely posting jury fees, after the superior court refused to grant relief from the waiver, and after the plaintiff didn’t file a writ petition to challenge the lack of a jury trial. The issue is who needs to show prejudice under such circumstances. The Division Two majority disagreed with a Division Seven decision — Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1 — and held the appellant must shoulder the heavy burden of demonstrating actual prejudice from the denial of a jury trial, while the dissent claimed it’s the respondent who has to show it would have been prejudiced from a grant of waiver relief. There was no petition for review in Mackovska.
  • Ditto. The court granted-and-held in Winick v. Noble LA Events, Inc., deferring action pending a decision in the TriCoast Builders case (see above). In Winick, the Second District, Division Seven — the Mackovska court (again, see above) — held in an unpublished opinion that the superior court didn’t abuse its discretion in denying relief from a jury trial waiver because the appellant “did not give the [respondents] an opportunity to show how a jury trial would prejudice them.”
  • Masked witnesses. In two more matters on its pandemic docket, the court denied review in People v. Lopez and People v. Alvarez. Published opinions in both of the Second District cases (decided a day apart) — Lopez from Division Eight and Alvarez from Division Seven — rejected arguments that requiring witnesses to wear face coverings because of the Covid pandemic violated the defendants’ constitutional confrontation rights. In Alvarez, Division Seven said “nearly every state and federal court to consider the issue during our current COVID-19 pandemic has found no confrontation violation because a witness was wearing a mask.”
  • Dependency. The court granted-and-held in two Second District, Division Seven, cases — In re Casey E. and In re Luke S. — that will wait for the court’s decision in In re D.P.  Review was granted in D.P. in in May 2021 and the issues were limited to:  “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding?  (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?” Division Seven dismissed as moot the appeals in both Casey E. and Luke S.
  • Proposition 66 habeas. The court granted review in In re Whalen, a capital habeas corpus petition, and sent the case back to the Fifth District “with directions to vacate its order denying a certificate of appealability and to consider whether the superior court ruled that the petition or its claims are successive under Proposition 66 and its implementing statute, Penal Code section 1509, subdivision (d), and accordingly whether a certificate of appealability is required under Penal Code section 1509.1, subdivision (c) and rule 8.392(b) of the California Rules of Court, or whether the matter should be remanded to the superior court so it may in the first instance decide whether the petition or its claims are successive under section 1509, subdivision (d), and if so whether to issue a certificate of appealability under section 1509.1, subdivision (c) and rule 4.576(b) of the California Rules of Court.” (Link added.)
  • Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.) This petition — In re Johnson — was filed almost 10 years ago.
  • Incompetency to stand trial. The court granted review in In re Seri and transferred the case back to the First District, Division Three, with directions to have a district attorney “show cause why petitioner’s continued confinement in the county jail does not violate his constitutional and statutory rights (Jackson v. Indiana (1972) 406 U.S. 715; In re Davis (1973) 8 Cal.3d 798; U.S. Const., 14th amend.; Cal. Const., Art. I, § 7; Welf. & Inst. Code, § 5358, subds. (a)(1)(B), (a)(2)), and why the San Francisco County Superior Court should not either: (1) issue an injunction setting a deadline for petitioner’s transfer to Napa State Hospital or some other appropriate treatment facility and ordering the director of that facility to accept him within that time (see In re Loveton (2016) 244 Cal.App.4th 1025; People v. Brewer (2015) 235 Cal.App.4th 122), or (2) grant the relief sought” in the petition for habeas corpus and mandate, a petition Division Three summarily denied.
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds: five more holding for a decision in People v. Strong (see here) and one holding for People v. Mumin (see here).
  • Disposal of grant-and-holds. The court shed 37 former grant-and-holds from its docket —  Joseph v. California Department of Corrections (see here) will be reconsidered in light of the January decision in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 31 more cases were sent back for reconsideration in light of January’s opinion in People v. Tirado (2022) 12 Cal.5th 688, and five more cases were transferred for reconsideration in light of last July’s decision in People v. Lewis (2021) 11 Cal.5th 952. By our count, there are 37 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)