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Brown, Winfield & Canzoneri, Inc. v. Superior Court of Los Angeles

February 1, 2010

BROWN, WINFIELD & CANZONERI, INC., PETITIONER,
v.
THE SUPERIOR COURT OF LOS ANGELES, RESPONDENT;
GREAT AMERICAN INSURANCE COMPANY, REAL PARTY IN INTEREST.



Ct.App. 2/3 B201396 Los Angeles County Super. Ct. No. BC331301 Judge: Elihu Berle.

The opinion of the court was delivered by: George, C. J.

In Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171 (Palma), we outlined the rare circumstances in which an appellate court may grant accelerated writ relief in the form of a peremptory writ in the first instance, in lieu of following the usual procedures associated with the issuance of an alternative writ or an order to show cause. We held that, at a minimum, a peremptory writ of mandate or prohibition may not issue in the first instance without notice that the issuance of such a writ in the first instance is being sought or considered. (Palma, supra, 36 Cal.3d at p. 180.) In addition, we emphasized that "an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected." (Ibid.) Pursuant to Palma, our Courts of Appeal - prior to ordering issuance of a peremptory writ in the first instance - provide notice that such a writ may issue, and invite informal opposition, in orders routinely called "Palma notices."

At issue in the present case is the propriety of so-called "suggestive" Palma notices. A suggestive Palma notice - sometimes denominated a "coercive" or "speaking" Palma notice - typically contains the following: notice that the Court of Appeal intends to issue a peremptory writ in the first instance granting the relief requested by the petitioner; a discussion of the merits of the writ petition, with a suggestion that the trial court erred in the manner claimed by the petitioner; a specific grant to the trial court of "power and jurisdiction" to change the disputed interim order and enter in its place a new order consistent with the views of the appellate court, in which event the writ petition will be vacated as moot; and a solicitation of opposition to the issuance of a peremptory writ in the first instance, should the trial court elect not to follow the appellate court's recommendation.

As discussed below, we conclude that it is not improper for an appellate court to issue a suggestive Palma notice, and that it may do so without first having received or solicited opposition from the real party in interest. A suggestive Palma notice is not the equivalent of a peremptory writ, which requires both notice and an opportunity for opposition before the writ may issue in the first instance. Although a suggestive Palma notice may be styled as an order, such a notice in no way commands or otherwise obligates the lower court to follow the course of action suggested by the appellate court. Rather, a suggestive Palma notice is analogous to a tentative ruling, in that it sets forth the appellate court's preliminary conclusions with respect to the merits of the writ petition - conclusions that, similar to those reflected in a tentative ruling, are not binding upon either the trial court or the appellate court.

It appears, however, that upon receiving a suggestive Palma notice from an appellate court, a trial court often will quickly vacate, modify, or otherwise reconsider the challenged ruling in order to conform its action to the views expressed in the notice - all before the party adversely affected has filed (or has had an opportunity to file) any opposing papers in response to the Palma notice. When the trial court takes such action, the Court of Appeal will dismiss the writ petition.

We conclude that if a trial court decides on its own motion to revisit its interim ruling in response to a suggestive Palma notice - an action within its inherent authority (see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109 (Le Francois)) - that court must inform the parties of its intent to do so, and provide them with an opportunity to be heard. (See id. at pp. 1108-1109.) Requiring adherence to this procedure is consistent with our relevant case law, and reasonably balances the interests of conservation of scarce judicial resources with the parties' right to notice and an opportunity to be heard.

I.

The writ proceeding in the case now before us arises from an action for declaratory relief brought by Great American Insurance Company (GAIC) against its insured, Brown, Winfield & Canzoneri, Inc. (Brown), to resolve an insurance coverage dispute. Initially, the trial court stayed the declaratory relief action, pending resolution of litigation involving claims for which Brown sought coverage, but in July 2007, while the underlying litigation still was pending, that court lifted the stay in the declaratory relief action and set a trial date.

On August 17, 2007, in response to the foregoing action taken by the trial court, Brown filed with the Court of Appeal, Second Appellate District, a "Petition for Writ of Mandate, Prohibition, or Other Appropriate Relief," requesting an immediate stay of all declaratory relief proceedings, and further requesting an order requiring the trial court to vacate the trial date and stay all proceedings until after conclusion of the underlying litigation. On August 28, 2007, the Court of Appeal issued an "order" comprising the suggestive Palma notice at issue in the present proceedings.

At the outset, the three-page suggestive Palma notice stated that "it appears the trial court erred in lifting the stay [of the declaratory relief action] prior to the determination of the underlying action." The notice then discussed both the factual and the legal merits of the writ petition, concluding that Brown's "entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . . [Citations.]" Based upon this conclusion, and citing Palma, supra, 36 Cal.3d 171, the challenged notice advised the trial court and the parties of the Court of Appeal's "present intention to issue a peremptory writ of mandate in the first instance" directing the trial court to vacate its July 3, 2007, order and enter an order reinstating the stay pending resolution of the underlying case. The notice then conferred upon the respondent trial court "the power and jurisdiction to change and correct its erroneous order, and to enter in its place a new order in accord with the views expressed herein." The notice stated that in the event the trial court were to take the latter action, the writ petition would be dismissed. Finally, the notice provided a schedule for briefing to be followed if the trial court "fail[ed] to comply with the directive set forth herein."

On August 29, 2007, one day after the Court of Appeal filed its Palma notice, the trial court issued an order that acknowledged the Court of Appeal's suggestive Palma notice, vacated the trial court's July 3, 2007, order, and reinstated the stay of the declaratory relief action pending resolution of the underlying case. Upon receiving a copy of the trial court's order reinstating the stay, the Court of Appeal dismissed the writ petition.

We thereafter granted GAIC's petition for review of the appellate court's August 28 order, limiting our review to the following issues:

(1) whether an appellate court properly may issue a suggestive Palma notice and, if so, (2) whether, absent exceptional circumstances, such a notice may be issued without the appellate court's having received or solicited opposition from the real party in interest.*fn1

II.

The California Constitution grants the courts original jurisdiction in proceedings seeking extraordinary relief in the form of writs of mandamus, prohibition, and certiorari. (Cal. Const., art. VI, § 10.) The Code of Civil Procedure and the California Rules of Court*fn2 set forth the procedures governing a court's exercise of its power and discretion to issue a writ. (See generally § 1084 et seq.; rule 8.485 et seq.)

When a petition is filed seeking a writ commanding the respondent superior court to act in a certain manner, such as by vacating or revising an interim order, an appellate court may (1) summarily deny the petition,*fn3 (2) issue an alternative writ or an order to show cause pursuant to section 1087, or (3) issue a peremptory writ in the first instance, pursuant to section 1088 and the procedure set forth in Palma, supra, 36 Cal.3d 710. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239-1240 (Lewis).) The scenario that gives rise to the issues in the present case involves the issuance of a peremptory writ of mandate in the first instance. This accelerated procedure dispenses with the issuance of an alternative writ, and with the requirement that the Court of Appeal afford an opportunity for formal briefing and oral argument before ordering that a peremptory writ issue. (See Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2009) § 22.18, p. 601 (Civil Writ Practice) [a Palma notice "informally describes the first step in the streamlined procedure for deciding the merits of a writ petition that avoids the more formal procedures triggered by the issuance of an alternative writ"].)

In Palma, supra, 36 Cal.3d 171, we considered the circumstances and procedures appropriate to an appellate court's issuance of a peremptory writ in the first instance. Based upon section 1088's "due notice" requirement,*fn4 which "was intended to place the respondent and real party in interest on notice, in the absence of an alternative writ, that a peremptory writ might issue" (Palma, supra, 36 Cal. 3d at p. 179), we held that a peremptory writ of mandate or prohibition may not issue in the first instance unless, at a minimum, "the parties adversely affected by the writ have received notice . . . that the issuance of such a writ in the first instance is being sought or considered." (Palma, supra, 36 Cal.3d at p. 180.) We further concluded that, absent exceptional circumstances, an appellate court "should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected." (Ibid.) Finally, we cautioned that a peremptory writ in the first instance should not issue unless "it appears that the petition and opposing papers on file adequately address the issues raised by the petition, that no factual dispute exists, and that the additional briefing that would follow issuance of an alternative writ is unnecessary to disposition of the petition." (Id. at p. 178.)

This court observed in Palma that these procedural safeguards - providing notice and requesting informal opposition prior to the issuance of a peremptory writ - serve a number of important purposes. For example, the notice requirement places the respondent and any real party in interest on notice, in the absence of an alternative writ, that a peremptory writ might issue. (Palma, supra, 36 Cal.3d at p. 179.) Additionally, "[b]y eliminating the necessity for full scale response where such a response is unnecessary, such a practice helps to reduce the cost of litigation to the parties; and by encouraging opposition when the court is about to act affirmatively on a petition, it helps to conserve judicial resources as well. In the case of a peremptory writ in the first instance, such a practice helps also to assure that the respondent, or real party, has had full opportunity to oppose what may turn out to be the final, and to his interests adverse, resolution of a legal issue." (Id. at p. 180.)

Subsequently, in Ng v. Superior Court (1992) 4 Cal.4th 29 (Ng), we emphasized that the issuance of a peremptory writ in the first instance is a procedural "rarity," and we cautioned that this "exception" to the normal writ procedure "should not become routine." (Id. at p. 35.) Generally, the accelerated Palma procedure "should be adopted only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue - for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts - or when there is an unusual urgency requiring acceleration of the normal process. If there is no compelling temporal urgency, and if the law and facts mandating the relief sought are not entirely clear, the normal writ procedure, including issuance of an alternative writ [citation,] should be followed." (Ng, supra, 4 Cal. 4th at p. 35; see, e.g., Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223 [the ...


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