We identified Hughes v. Pham as a possible early test of the “new” Supreme Court, noting it would be momentous if the court converted that grant-and-hold case into a case to decide on the merits the constitutionality of Civil Code section 3333.2 — the limit on noneconomic damages in healthcare professional negligence cases enacted as part of the 1975 Medical Injury Compensation Reform Act (MICRA). That’s not going to happen.
The court today took the kind of action it does with almost all grant-and-holds — it took the case off its docket without issuing an opinion. The Hughes appeal has been transferred back to the Court of Appeal “for reconsideration in light of the decision in Rashidi v. Moser (2014) 60 Cal.4th 718.”
Occasionally, the Supreme Court will un-hold a grant-and-hold, and there was reason to think that could happen with Hughes. Three years ago, the court denied review in a case raising the constitutionality of the MICRA damage cap, but Justices Kathryn Werdegar and Goodwin Liu recorded votes to grant review. If new Justices Mariano-Florentino Cuéllar and Leondra Kruger had joined Justices Werdegar and Liu to un-hold Hughes, the constitutional issue would have been front and center on the court’s docket. However, the transfer order was unanimous; not even Justices Werdegar and Liu wanted to address the issue, at least not in this case.