Sometimes with Supreme Court conferences, it’s feast or famine. In December, the court straight granted five cases at one conference and then another four the following week. But there were no straight grants at yesterday’s double conference, the third conference in a row without a new matter put on track for briefing, oral argument, and an opinion. This despite ruling on 146 matters yesterday. Nonetheless, here are some highlights.
Confidential medical records grant-and-hold. Doe v. Santa Cruz-Monterey-Merced Managed Medical Care Commission is a grant-and-hold for J.M. v. Illuminate Education (see here), which is expected to decide whether a company that stores students’ confidential personal and medical information through its work providing software to school districts is subject to liability to these students under the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) and the Customer Records Act (Civ. Code, § 1798.80 et seq.) following disclosure of such information through a data breach. The Sixth District Court of Appeal’s unpublished opinion in the Doe v. Santa Cruz case, involving a data breach in an entity that arranges for health care services for low-income people, didn’t address the issue presented in J.M. Instead, because the appellate court concluded there was insufficient evidence in opposition to a summary judgment motion that the plaintiff’s “medical information was accessed, let alone viewed, such that there was a breach of confidentiality of plaintiff’s medical information in violation of the CMIA,” it was unnecessary to decide “whether [the defendants] fall[ ] within the statutorily defined categories of individuals or entities that are subject to liability under the CMIA, or whether plaintiff must prove that she received healthcare from a defendant.”
Another forum selection grant-and-hold. The Comedy Store v. Moss Adams LLP is another grant-and-hold for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause. In a published opinion, the Second District, Division Four, in Comedy Store held to be unenforceable a Washington state forum selection clause because the parties’ agreement also contained a “predispute jury waiver” that is contrary to California policy. Even though the defendant promised not to enforce the waiver, Division Four concluded the defendant had failed to show that the plaintiff’s “right to a jury trial would not be diminished if the case were litigated in Washington.” The underlying lawsuit concerns a claim that the defendant accounting firm caused the plaintiff business to miss the deadline to apply for an $8,500,000 federal grant under a program compensating venues closed by the COVID pandemic.
Racial Justice Act dissenting votes.
The court denied the habeas corpus petition in In re Coleman over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. The petition sought relief under the California Racial Justice Act (here and here), the denial order said, based on claims the petitioner’s “attorney exhibited bias or animus towards petitioner because of petitioner’s race, ethnicity, or national origin by advising petitioner to ‘speak [Ebonics],’ ‘sound ghetto,’ and ‘talk hood’ while testifying.”
The court said the petition was “procedurally barred on habeas corpus because the same claim, based on the same record, was raised and rejected on appeal.” In rejecting the earlier appeal, the published opinion of the First District, Division Five, found no RJA violation, stating, “A defense attorney’s salient advice to a defendant to speak in his or her own voice when he or she testifies does not indicate bias or animus toward a defendant because of his or her race, ethnicity, or national origin.” When the Supreme Court denied review of the opinion last May, Justice Evans (joined by Justice Liu) filed a separate concurring statement (see here) saying that, although the attorney’s “advisements, standing alone, would be sufficient to infer Coleman’s counsel exhibited at least implicit bias,” review was not warranted because an “underdeveloped record” left it “unclear . . . whether counsel advised Coleman in this exact manner.”
Racial Justice Act OSC. On the pro per’s habeas corpus petition in In re Bell, the court issued an order to show cause, returnable in the superior court, “why petitioner has not satisfied the requirements for the appointment of counsel [under] Penal Code, section 1473, subdivision (e)” (link added), which is part of the California Racial Justice Act (here and here).
Racial Justice Act denial. The court denied a depublication request in Sanchez v. Superior Court. A 2-1 Fourth District, Division Two, belatedly published opinion affirmed the granting of the prosecution’s motion to disqualify the defendant’s lawyer — a deputy public defender — under the California Racial Justice Act (here and here) because the attorney “made remarks invoking defendant’s race as a factor to consider during plea negotiations.” The majority held an actual conflict was created because the RJA required defense counsel to investigate “whether counsel himself harbors racial bias or animus, and the inquiry must include whether counsel’s decision may be influenced in an unintentional or unconscious manner by implicit bias.” The dissent said the disqualification order “depriv[ed] defendant . . . of an attorney whom he wanted to keep and who was zealously representing him.” There was no petition for review.
Compassionate release dissenting votes. Justices Liu and Martin Jenkins recorded dissenting votes from the denial of review in People v. Multani. The Second District, Division Three, in a published opinion, affirmed the denial of a petition for compassionate release under Penal Code section 1172.2, which provides a presumption for a recall and resentencing if an “incarcerated person has a serious and advanced illness with an end-of-life trajectory.” Despite having stage IV lung which has metastasized to his brain, the defendant has been successfully treated with targeted medication for the past seven years. Division Three concluded the petition’s denial was warranted “[b]ecause ‘end-of-life trajectory’ indicates that the illness must, at the very least, be progressing toward death.”
Childhood trauma dissenting vote. The court denied review in People v. Neal, but Justice Joshua Groban recorded a dissenting vote. The 2-1 Fourth District, Division One, unpublished opinion addressed several arguments and Justice Groban didn’t explain the reason for his dissenting vote, so it’s not clear what issue attracted his attention. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) But the dissent concerned the affirmance of a middle prison term on the defendant’s conviction of assault by means of force likely to produce great bodily injury. Penal Code section 1170(b)(6)(A) requires a lower term when the defendant’s “childhood trauma” has contributed to the offense, “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances.” The majority held reliance on section 1170 was forfeited and would not have prevailed in any event.
Criminal case grant-and-holds. There were 11 criminal case grant-and-holds: another one waiting for a decision — or the finality of a decision — in two death penalty appeals, People v. Bankston and People v. Hin (see here) (Hin was decided last week); one more holding for People v. Patton (see here), which was argued in December; seven more waiting for People v. Rhodius (see here); and two more on hold for People v. Lopez (see here).
Grant-and-hold disposition (see here). In Premier Capital, LLC v. Yakovi (see here), which was waiting for the November decision in California Capital Insurance Company v. Hoehn (2024) 17 Cal.5th 207 about vacating void judgments (see here), the court sent the case back to the Court of Appeal to reconsider in light of the California Capital opinion.
