Brown, Winfield & Canzoneri, Inc. v. Superior Court

Feb. S156598. [No. 2010.]

BROWN, CANZONERI, INC., Petitioner, WINFIELD & v. ANGELES, THE SUPERIOR COURT OF LOS Respondent; COMPANY, Real in Interest. Party GREAT AMERICAN INSURANCE Counsel McCutchen, Friedman,

Bingham Bruce A. Kenneth S. Gina M. Meyers, Simas; Echeverría, Bidart, Shemoff Bidart Barras & Michael J. Ricardo Echeverría; The Ehrlich Law Firm and Isaac Ehrlich for Petitioner. Jeffrey No appearance Respondent.

Cochran, Associates, Cochran; Alessio, Davis & Joan E. & Kris P. Thompson K. for Real Thompson Jeffrey in Interest. Miyamoto Party Eisen; Fischer; Grodin; Jay-Alien Dennis A. R. Steven L. Mayer; Joseph Meadow; Olson; Steiner; Robin Robert A. Jonathan B. R. Douglas Young; Eisenberg Hancock and Jon B. for California Eisenberg Academy as Amicus Curiae Appellate Lawyers on behalf of Real in Interest. Party Opinion Fasteners,

GEORGE, C. Palma v. U.S. Industrial Inc. J . In Cal.3d (Palma), 681 P.2d the rare outlined Cal.Rptr. circumstances in which an accelerated relief in grant writ appellate may instance, the form of a writ in the first in lieu peremptory following or an of an alternative writ associated with the issuance usual procedures that, minimum, a writ of cause. We held at a peremptory order to show without notice not issue in the first instance may mandate or prohibition instance is or considered. being sought the issuance of such a writ in first (Palma, addition, that “an In we emphasized 36 Cal.3d circumstances, court, should not issue a peremp- absent appellate exceptional received, solicited, having in the first instance without writ tory (Ibid.) to our affected.” Pursuant adversely from the or parties a writ in the first issuance of ordering Courts of Appeal prior— issue, a and invite informal notice that such writ may provide instance — called “Palma notices.” routinely in orders opposition, of so-called “suggestive” At issue in the case is propriety present Palma notices. A a “coer- notice —sometimes denominated suggestive following: contains the cive” or typically “speaking” notice — in the first intends to issue a peremptory the Court of Appeal a discussion the relief requested by petitioner; instance granting trial court erred in the with a that the suggestion merits of the writ petition, the trial court of grant “power manner claimed petitioner; specific enter in its interim order and place change disputed jurisdiction” in which event with the views of the appellate new order consistent moot; and a solicitation of opposition will be vacated as writ petition instance, the trial court elect the first writ in issuance court’s recommendation. not to follow the appellate below, for an it is not we conclude that improper As discussed do so and that it may court to issue from the real party received or solicited opposition first having without writ, is not Palma of peremptory A equivalent interest. before the and an for opposition both notice which requires notice may Although in the first instance. issue order, obligates or otherwise a notice in no commands way as an such styled of action suggested by to follow the course the lower court notice is Rather, ruling, to a tentative analogous court. a suggestive with respect court’s conclusions preliminary that it sets forth that, reflected in similar to those of the writ petition the merits —conclusions court or the appellate either the trial are not ruling, binding upon a tentative court. notice from an however, receiving that upon

It appears, vacate, or otherwise court, modify, court often will quickly a trial to the views to conform its action in order ruling the challenged reconsider (or has filed affected adversely notice —all before in the expressed to the file) has had an opportunity any opposing papers response action, notice. When the trial court takes such will dismiss the writ petition. conclude

We that if a trial court decides on its own motion to revisit its Palma notice —an action within its interim to a response Le Francois 1094, v. Goel (see inherent authority 35 Cal.4th (Le Francois)) 1107-1109 112 P.3d —that so, must inform the of its intent to do them with provide id. (See to be 1108-1109.) heard. adherence to pp. Requiring law, this procedure consistent our relevant case and reasonably balances the interests of conservation of scarce resources with the judicial and an right to be heard. parties’

I. The writ in the case now before us arises from an action for proceeding relief Great declaratory brought by (GAIC) American Insurance Company insured, Brown, Canzoneri, against (Brown), Winfield & Inc. to resolve an insurance coverage dispute. trial court Initially, stayed declaratory action, relief resolution of pending litigation claims for which involving Brown sought but in coverage, July while still underlying litigation was that court lifted the pending, in the stay declaratory relief action and set a trial date. 17, 2007,

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

At the notice stated that “it three-page suggestive appears the trial court erred in lifting relief stay declaratory prior [of action] to the determination of the action.” The underlying notice then discussed both the factual and the merits of the writ legal that Brown’s petition, concluding “entitlement to relief is so obvious that no could purpose reasonably served by plenary consideration of the issue .... Based upon [Citations.]” conclusion, this 36 Cal.3d citing challenged notice advised the trial court and the of the Court of Appeal’s “present intention to issue a writ of mandate in the first instance” directing 3, 2007, the trial court to vacate its July order and enter an order reinstating 1240

the resolution of the case. The notice then conferred underlying stay pending trial “the and change the court upon respondent power jurisdiction order, erroneous to enter in its a new order in correct its accord place The notice in the event trial the views herein.” stated that expressed action, court take the the writ were to latter would dismissed. petition the notice for to be followed if the trial provided schedule Finally, briefing set with the directive forth herein.” comply “fail[ed] 29, 2007, On filed its one after Court of Palma August day Appeal notice, the trial court issued an order that acknowledged 3, 2007, July vacated trial court’s Appeal’s suggestive order, declaratory and reinstated the of the relief action resolu- pending stay tion the trial order underlying receiving case. court’s Upon copy the writ Court of dismissed reinstating stay, petition. We thereafter GAIC’s review of the court’s granted petition order, (1) issues: whether an August limiting 28 our review following and, so, issue a if properly circumstances, whether, (2) a notice bemay absent such issued exceptional without the received solicited from having court’s real in interest.1

II. original jurisdiction The California Constitution courts grants mandamus, in the of writs of seeking relief form proceedings extraordinary Const., VI, and certiorari. art. The Code of Civil (Cal. prohibition, § and the Rules of Court2 set forth procedures Procedure California (See court’s to issue writ. exercise of its discretion governing power 1084 et rule 8.485 et seq.) generally seq.; noted, as moot when the As Brown’s writ was dismissed parties’ here at issue. The

trial court acted in accordance with the giving proceedings— to the writ subsequently briefs informed the court issue rise during pendency been declaratory stayed action should have whether GAIC’s relief coverage concerning sought which moot underlying litigation claims for Brown —became “important questions] litigation present presents when settled. The case nonetheless ‘ ” ’ “ “ evading yet review.’ affecting ‘capable repetition, interest” that are public (NBC appropriate.” Accordingly, juncture our of the case this resolution [Citation.] 1190, 1178, (KNBC-TV), (1999) Subsidiary Superior Inc. v. Cal.4th fn. 6 [86 20 City 337]; Diego v. see also Peterson San Cal.3d 980 P.2d P.2d courts have to consider case that Cal.Rptr. [appellate discretion moot, continuing public technically 2 importance].) when the issues are of Procedure, noted, of Civil statutory all references are to the Code Unless otherwise further to rules to the California Rules of Court. and all further references are

1241 commanding When is filed writ petition seeking respondent manner, to act as an by revising in a certain such or superior vacating order, interim (1) may summarily deny petition,3 (2) an order cause to section issue an alternative writ or to show pursuant 1087, instance, (3) or writ in the to section issue first peremptory pursuant Palma, (See in 36 Cal.3d Lewis v. 1088 and the set forth 171. supra, procedure (1999) Cal.4th 1239-1240 Superior 19 issues in the (Lewis).) 970 P.2d The scenario that rise to the gives case writ of mandate in the first involves issuance present peremptory instance. This accelerated with the of an issuance procedure dispenses writ, alternative and with the afford an that requirement and briefing for formal oral before that a ordering argument (Cont.Ed.Bar (See writ issue. Cal. Civil Writ Practice 4th ed. peremptory 22.18, 2009) (Civil Writ Practice) 601 Palma notice p. “informally [a describes the first in the streamlined merits of step procedure deciding a writ that more avoids the formal petition procedures triggered by writ”].) issuance of an alternative

In supra, 36 Cal.3d we considered the circumstances and procedures to an court’s issuance of a writ appropriate peremptory in the first instance. “due Based section notice” requirement,4 1088’s upon which “was intended to and real interest on place respondent party notice, writ, in the absence of an alternative that a writ peremptory (Palma, issue” at 179), 36 Cal.3d held that a writ p. we of peremptory unless, mandate or not issue in the first instance at a prohibition may minimum, “the affected writ parties adversely have received notice . . . that the writ issuance such a in the instance is being sought first or that, (Palma, 180.) considered.” Cal.3d We supra, 36 at further p. concluded circumstances, absent court “should not issue a exceptional received, solicited, in the peremptory writ first instance without or having from the opposition (Ibid.) affected.” party parties adversely Finally, cautioned that in the first instance should not issue unless “it that and on appears file address opposing papers adequately exists, the issues raised that and no factual that the petition, dispute additional that follow briefing would issuance an alternative writ is (Id. unnecessary of the disposition petition.” 3 The most recent statistics indicate approximately percent petitions available seeking (See in the summarily. relief Courts of are Council denied Judicial Cal., Rep. <http://www.courtinfo.ca.gov/reference/documents/ Court Statistics ix 1, 2010].) csr2009.pdf> of Feb. [as provides, Section part, application in relevant court is made “[w]hen allowed, issued; without notice to the adverse the writ party, and alternative must be first allowed, application upon but if the due the writ is issued in the first instance.” in that these procedural safeguards This court providing observed — the issuance informal prior peremp- requesting For the notice writ —serve a number of

tory important purposes. example, real interest on respondent requirement places (Palma, writ, alternative that a writ issue. the absence of an peremptory supra, for 179.) eliminating necessity 36 Cal.3d at p. Additionally, “[b]y a unnecessary, full scale where such a such response practice response of and encouraging to reduce the cost helps litigation parties; it when the court is about to act on affirmatively petition, helps opposition In the of a writ in to conserve resources as well. case judicial peremptory instance, real to that the or first such a also assure practice respondent, helps final, had turn out to be the has full what opportunity oppose may party, (Id. adverse, 180.) to his of a issue.” at legal and interests resolution p. v. Court Ng Superior (1992) 4 in Cal.4th 29 Subsequently, [13 (Ng), 856, that 840 P.2d the issuance Cal.Rptr.2d emphasized 961] the first is a and we cautioned “rarity,” writ in instance procedural peremptory not become that this normal writ “should procedure “exception” (Id. the accelerated procedure “should routine.” at p. Generally, so that no entitlement to relief is obvious be when adopted only petitioner’s could of the issue— served consideration reasonably plenary purpose clear is conceded or when there has been for when such entitlement example, when under of law and facts —or undisputed error well-settled principles If is an acceleration of normal urgency process. there unusual requiring mandating there is no if the law facts temporal urgency, compelling clear, including the relief are not normal sought entirely procedure, 4 (Ng, supra, [citation,] of should be followed.” issuance an alternative writ 1218, v. Court Superior see, Alexander 35; (1993) at 5 Cal.4th e.g., Cal.4th 397, erred in P.2d 1223 859 Cal.Rptr.2d 96] [the [23 1088 authorized considering writ under application expedited procedures § in the because nothing instead of under alternative writ procedure ” “ resolution].) ‘unusual justifying expedited record suggested urgency’ course, aof in the circumstances in which issuance Of even limited not issue may the first such writ appropriate, writ in instance peremptory Palma, supra, first outlined in court satisfies strictures unless appellate Kernes v. Court Superior (2000) 77 Cal.3d at 180. (Compare 36 page division Cal.App.4th Cal.Rptr.2d 765] [91 [the first in the erred in issuance ordering peremptory court superior such that respondent did not expressly notify instance when the petition from failed request opposition relief was court being sought, Payless Drug that and no unusual exigency justified failure] respondent, 277, 279 Superior Store v. Cal.App.4th writ in first it considering issuing peremptory notice that was giving [after instance, from the real then informal receiving replies requesting interest, on court ordered issuance of writ that grounds exceptional further would add to its nothing circumstances existed and proceedings review, obvious].) because entitlement to relief was petitioner’s Lewis, 19 Cal.4th this

Finally, recognized order issuance of a writ of mandate in the first without instance prohibition affording (id. 1237), for oral at but we reaffirmed the argument also importance outlined in that “the Court procedural safeguards noting real generally afford the and/or in interest respondent (Lewis, written . . . .” Cal.4th present supra, 19 1241.) We again issuing the accelerated for emphasized process writ in the first instance is “reserved truly exceptional those in which a primarily temporal compelling urgency requires cases— immediate decision. where the consideration Denying plenary petitioner’s to entitlement relief clear’ is ‘obvious’ under ‘well-settled ‘entirely [citation], law and is in only facts’ principles undisputed permitted circumstances. extremely narrow law of established to Application undisputed must leave facts no room for doubt the result. ‘Well-settled regarding proper of law’ set controlling must be forth in that principles authority squarely of the case court. If the or applies circumstances before the respondent real in interest reasonable that the law party presents any argument applicable is unsettled or does not the the issue in govern precise presented light facts, or if the in particular undisputed legal set forth application principles results, various sources of law lead to is different and there no decision, need for an compelling the court must follow the usual expedited (Id. writ and issue an alternative procedure writ or order show cause.” 1261.) Palma, In accordance with our supra, 36 Cal.3d Courts of Appeal advise the writ issuance typically in that of a parties proceedings peremptory consideration, writ in the first under instance is an order by filing requesting (See, informal to the writ date. Ct. opposition petition by e.g., specified Dist., One, Proc., V, Fourth Div. Internal Practices and App., Operating usual Palma Original The notice directed to the in Proceedings.) read, writ for “The for writ mandate may proceeding example: petition date], Q] or filed herein has been read and considered. prohibition [on The are notified that issue order for a may peremptory writ in the first to [grant sought]. instance the relief requiring respondent (Palma[, real supra,] The in interest is p.] party [at C[al.]3d to file and Writ (Civil serve on or before requested Practice, opposition [date].” 28.7, 745.) Because a writ supra, issue without § peremptory (or further and without oral briefing argument, the response respondent to the notice interest) real in such with any may provide party party in the the merits of sole to be heard on writ petition.

m. us of the suggestive The issue before is the presently propriety type of notice. of notice with the minimum clearly complies This type in supra, outlined 36 Cal.3d that it procedural safeguards that the issuance considering ordering provides instance, writ in the first and furnishes an the writ. real interest to issuance of The oppose respondent curiae, occurs, that according GAIC amicus problem does not there —it also discusses the merits of stop erred in manner writ trial court claimed petition, suggests the trial court grants jurisdiction” petitioner, “power interim enter in its a new order in reconsider order and challenged place 5 (in event the views of court which accordance moot), will be vacated as and solicits to the issuance of a the trial fails to follow the the first instance if only Practice, (See, Writ e.g., court’s course of action. Civil suggested 28.9, 747-748.) pp. Palma observes, however, Brown our decisions in and As accurately form the notice inform any cases do not for subsequent prescribe particular a writ in the that the Court of issue Appeal may peremptory the ing Moreover, informal instance and an providing opposition. first do decisions not or an explicitly implicitly, appellate these prohibit, notice, or in the Palma the the writ from from merits of addressing petition that court the issuance of considering ordering the reasons why explaining that, and curiae a writ in the first instance. GAIC amicus respond peremptory trial court to “strongly encouraging” a by issuing suggestive in accordance with the relief requested petition, take action has the merits of the writ petition Court of essence decided the first before real has issued the writ in instance effectively peremptory has meaningful in interest had respond. jurisdiction” to trial court to reconsider particular language granting “power and This — change act to intended that the lower court will challenged appears to be to ensure order — stay suggestive despite appellate court’s ruling its in accordance with the language, such a notice subject explicit all notice. In somewhat more proceedings stay permit respondent court to alternatively provide proceedings that the is modified Practice, (Civil change its order so peremptory as of a writ. Writ to avoid issuance 28.9, Palma notice is the We are not that the issuance of a persuaded effective in the first instance. A equivalent issuing peremptory writ of mandate issued court and peremptory by directed inferior tribunal is the court’s ultimate order reviewing commanding court to the relief respondent grant Such writ issues after requested. only the written (and decision the writ that the writ be granting directing final, issued) becomes both as to the Court of and the Court. Supreme Thereafter, court is authorized to make orders necessary writ, for the enforcement of the proper and the unexcused complete neglect motion, and, refusal to a writ “obey” be the of a fine in the may, upon subject refusal, case of (§ 1097.) until the writ is persistent imprisonment, obeyed. “order,” notice in By even if as an comparison, styled no sense commands or the trial court obligates to follow the course of action Rather, writ, suggested court. in the absence of a the trial court (Cf. remains free to Ng, supra, stay course. Cal.4th at court erred in [superior acting immediately upon Appeal’s instance, opinion ordering issuance of a writ in the first rather itself, than awaiting issuance of the writ thus necessitating the Supreme action].) Court’s emergency A as acknowledges much, when it sets a briefing schedule for in the reply papers event the trial court elects not act in accordance with the notice.

A suggestive notice is more to a tentative analogous such as ruling, be issued civil law and motion department superior prior to oral argument (See, on a motion. e.g., Ct. Riverside Local Super. County, Rules, 2.0016; rule Rules, 3.04; Ct. Sac. Super. Local rule County, Super. Rules, Ct. S.F. Local County, 3.5(D).)6 rule Tentative “indicate the rulings way judge to decide the prepared matter based on the information before Brown, him or her when the (Weil was & Cal. prepared.” Practice Guide: Civil (The Procedure Before Trial 2009) Rutter Group (rev. however, # 2007).) Such a §9:111 tentative ruling, becomes the final of the trial ruling (1) court if the only court does not order oral in argument its tentative and notice of intent to ruling, is not one of the appear given by (2) conducted, or after the parties, on the only hearing motion is the assuming 3.1308; court does not then (Rule render a different see also ruling. v. Jespersen 624, Zubiate-Beauchamp (2003) 114 633 Cal.App.4th [7 are Cal.Rptr.3d not bound their by tentative Simi- rulings.”].) 715] [“Courts Palma larly, suggestive indicates the manner in which the Court of 6 Similarly, many years, for Division Two of the Fourth District Court of Appeal has utilized opinion” procedure by “tentative preliminary which a opinion provided draft to counsel (See 389, People v. Pena prior argument. (2004) to oral 32 Cal.4th Cal.Rptr.3d 394-397 [9 506]; Dist., Two, Proc., VIII, App., 83 P.3d Ct. Fourth Div. Internal Operating Practices and Opinions Tentative Argument.) and Oral

1246 decide the of the writ based what petition, upon merits prepared it when notice was but such a notice is not binding was before the prepared, Foundation (See, either the or the court. trial court appellate e.g., upon v. & Consumer Garamendi 132 Taxpayer Rights Cal.App.4th (Garamendi) conclusions” [referring 1383 “tentative Rather, Palma in in notice].) the conclusions suggestive expressed expressed Palma notice remain unless and until are they suggestive provisional into decision the writ petition directing written incorporated granting that a writ be issued. peremptory the to reevalu-

Issuance tentative allows both sides in the light ate their views respective preliminary expressed positions matter, submit to tentative the on the to either the issuing ruling, need for oral or to focus their at arguments the thereby negating argument, a sugges- We hearing. presume transparency provided by subsequent tive notice is in useful. advance similarly Knowing reasoning behind intention to issue a in Appeal’s present in instance the real whether to deciding the first should assist interest party and, relief event that is not inclined do requested accede Garamendi, so, (See, assist it in future tailoring any e.g., opposition. at with Cal.App.4th [although plaintiffs disagreed 1382-1383 supra, pp. Palma stipulated tentative conclusions expressed they sought by the relief writ petition].) notice is that it effect of a preserves

Another practical issued Because that court has available to court. options appellate cause, notice rather than an alternative writ or order to show “ ” 36 Cal.3d supra, (See has become a ‘cause.’ at not proceeding Therefore, 6.) if the declines or modify & fns. trial court to reverse p. in the notice issued suggested interim order as disputed latter issue a denial after may summary receipt court still (Id. 178.) at because the Alternatively, informal opposition. notice and soliciting

has complied by providing requisite inviting it order issuance of a writ without may opposition, (Lewis, Cal.4th oral argument. further briefing holding writ, it and hold briefing, Or issue an alternative formal may request of the a written by way opinion. before argument oral disposing court of the relieve Finally, avoiding exercise these thus further options, expenditure need to the the identifies error scarce resources. Because notice specifically court’s that the trial strongly interim order and suggests trial court’s perceived views, likely it is more in accordance with the court’s appellate court act

1247 the trial court will act than so had court issued a appellate simply traditional alternative writ or Palma notice.7 remains, however, Palma notice

The suggestive merely recommen dation —albeit a worded one—that the trial court reconsider the order strongly the writ challenged by of the circumstance that the Court of petition light has concluded the erred tentatively (See, trial court in some Appeal respect. Luckett, 147 e.g., 923 to Cal.App.4th suggestive response [in notice, “trial court reconsidered whether should [plaintiff] post recommendation, bond”].) vexatious In of its litigant’s support appellate court discuss the may, merits of the writ note that the example, petition, will become moot if the proceeding trial court enters a new order that affords the relief in the writ sought instruct to inform the petition, order, court if the trial court its and appellate changes provide any stay issued by court does not the trial court appellate from reconsid preclude its order in the manner ering court’s suggested discussion of not, however, merits. The suggestive notice may direct the trial order, court to its change the trial court purport grant authority its order change without first notice and an affording reason, to be heard in the trial court. For this and to avoid any ensuing confusion, should refrain from its describing Palma notice as a “directive,” or otherwise that the trial court suggesting addition, must with the notice. In the suggestive Palma “comply” acknowledge in the procedural safeguards event the trial required notice, does revisit an interim such a as further response discussed below.8 7 case, For example, present day in the after the Court of issued the notice, the trial court disputed vacated the place interim order and entered in its a new order in accord expressed with the views petition in the after which the writ was summarily (See 919, Keylee also Luckett v. (2007) dismissed as moot. Cal.App.4th 147 923 [54 Cal.Rptr.3d (Luckett); Karlsson v. Ford Motor (2006) Co. Cal.App.4th 265]; Casualty Surety 1212-1213 Superior Travelers & Co. v. Cal.Rptr.3d (2005) Court [45 751]; Angeles County Cal.App.4th Dept. Los 1136-1137 Children & Cal.Rptr.3d Fam. Superior Services v. Cal.App.4th 1164-1165 [105 254].) recognize What we a Palma notice that both reveals the today approval simply is why reasons considering the issuance a peremptory writ in the first instance, acknowledges the obvious circumstance that the writ will become moot if so, the trial challenged court vacates the doing reject suggestion order. In advanced in the concurring dissenting opinion that we Appeal by forbidding should muzzle the Courts of them in a notice and articulating preliminary analysis from their providing the reasons they presently for the action taking. intend on concurring We also do not share the dissenting opinion’s view that likely coerce or intimidate a trial court —the court most familiar with the proceedings changing against its interim order —into judgment. contrary, better To the we have full confidence ability in the of trial courts to make facts, upon informed decisions based relevant law and the uncowed court’s if the suggestive even

GAIC’s alternative argument —that issue, not absent exceptional such notice should notice procedure proper, circumstances, real in the affording the court’s first without appellate a different an not compel to file interest —does court authorize appellate The California Rules of Court specifically result. the writ in issuance of a considering that it is to notify parties first instance without requesting preliminary opposition waiting reply. (Rule 8.487(a)(4).) however, circumstances in which that although acknowledge,

We rare, may this place are availability procedure issue may On the in interest in a difficult situation. for the real party counsel appellate hand, clients’ resources by responding not wish to waste their one counsel do in light every petition, particularly immediately fully are summarily of such that the overwhelming majority petitions circumstance one, risk, hand, that the face a albeit a small counsel denied. On other and, a trial court may response, court issue may their counsel having vigorously represented without ruling, reconsider Therefore, not although required, court. client’s interests in we strongly encourage appellate alleviate this dilemma order to practical help the event invite preliminary opposition courts to inform the parties —in —and than summarily deny- action other taking anticipates the writ ing petition.

IV. Francois, In Le court has held that a trial Cal.4th (Id. at motion. on its own reconsider an interim inherent power fundamental, derives from the 1096-1097.) judiciary’s This authority pp. between controversies function to resolve specific mandated constitutionally (Id. fairness, however, led us 1104.) Concerns of procedural at p. parties. this must to exercise intending power a trial court to conclude that further so and a reasonable opportunity “notice that it do provide (Id. at see id. 1097; 1108-1109.) pp. litigate question.” in Le Francois summary judgment, motion for was a successive At issue not the motion was the circumstance trial court granted despite which the was not and therefore authority, or new legal either new facts based upon fortify forth above should anything, principles set tentative views. If expression of its notice, suggestive that, continue to receipt courts after resolve of those trial hand, the trial court determine correct. On the other original their order is believe will suggestive now response to a appropriate reconsideration proceeds. before the trial to be heard notice and an receive We 437c, (f)(2) or section 1008.9 subdivision either section by authorized in which a party circumstances that, limit the these held although provisions its own on reconsideration, ability, limit the court’s “do not they seek may correct its own it motion, may interim orders so its prior to reconsider in this Francois, 1107.) Interpreted at (Le supra, 35 Cal.4th p. errors.” of to litigants manner, limiting ability of serve their purpose the statutes motion —without the same bringing court’s resources by repeatedly waste the ensure the to resolve controversies the court’s ability properly impairing (Id. at 1104.) of justice. p. administration orderly have in Le Francois that may triggered it immaterial what We explained cannot “We be erroneous: might that its interim order trial court’s insight a a court that it should the view to a from communicating party prevent never be should such communication (although any reconsider a ruling prior has ‘judge not matter whether that it should ex We agree parte). the night’ in the middle of flash of understanding [citation] unprovoked believes one of its prior a If a court suggestion. acts in to party’s response erroneous, that error no matter be able to correct was it should interim orders Francois, at (Le supra, 35 Cal.4th belief.” it came to that how acquire 1301, Barthold 1108; see, (2008) 158 Marriage In re Cal.App.4th e.g., that for reconsideration motion [although 1308 Cal.Rptr.3d 691] [70 a such or new evidence violates new legal authority unsupported decision on its court to reconsider its previous motion trial may inspire motion].) own in Le Francois we addressed to be followed procedures

Finally, concern, an interim there exists a that there is a or when suggestion, when that it should “The court need not rule on any suggestion is erroneous. ruling more, and, not be another would party reconsider a without ruling previous Francois, (Le at 35 Cal.4th such a suggestion.” expected respond But, concerned if the court is seriously be fair to the parties, “[t]o erroneous, and thus that have been that one of its interim rulings might prior something on its own it want to reconsider motion — concern, this rather rarely think will happen inform —it then, Then, would and hold a only briefing, hearing. solicit [Citations.] 437c, summary (f)(2), ability to renew motion party’s subdivision limits a Section summary judgment based on issues may not move for judgment. provides: party It “[A] court, party unless that summary adjudication and denied prior in a motion for asserted change or circumstances or newly discovered facts to the satisfaction of establishes Section summary judgment motion.” supporting the issues reasserted in of law reconsideration, party allows a to seek reconsideration generally governing motions for statute circumstances, facts, only motion demonstrates new or different prior party’s order if the there has been a if the court determines Alternatively, provides section 1008 or law. reconsideration, order on its own motion. prior it reconsider change of law that warrants 1250 another that the court expected respond party’s suggestion

should reconsider a This previous ruling. reasonable procedure provides balance between the conflicting goals limiting repetitive litigation a court permitting to correct its own erroneous interim (Id. orders.” 1108-1109, added; see, italics pp. e.g., (2008) v. Johnson Montegani 1231, trial Cal.App.4th court determined it [76 621] [after law, should reconsider an interim order in light case it intervening concern, informed the of its and held a requested briefing, hearing]; Nickolas F. v. Superior 98-99 Cal.App.4th court had [juvenile and constitutional statutory authority order, motion, its modify on its own after prior disposition giving heard].) notice and an to be opportunity

Similar concerns of fairness lead us to conclude that the procedural Francois, outlined in Le 35 protections Cal.4th supra, apply notice, when a trial to a Palma decides to response suggestive revisit is, course, an interim It of understandable that the ruling. receipt notice, Palma suggestive which in some detail the factual typically explains and legal basis for the court’s intention to issue present peremp- instance, writ in the first tory the trial court to reconsider the may prompt all, interim After as we challenged ruling. consistently have emphasized, accelerated Palma “should be when procedure adopted only petitioner’s entitlement to relief is so ... obvious when such entitlement is example, conceded or when there has been clear error under well-settled of principles law and facts.” (Ng, Cal.4th at In view of the undisputed notice, however, nature of a a trial court that nonbinding suggestive to act in to such a notice inspired acts on its own response necessarily motion. We therefore conclude that before or otherwise vacating, modifying, an interim to a reconsidering response trial court must inform the that it is and such action considering taking them with an be heard. This provide procedure reasonably balances the interest in scarce with the conserving judicial resources parties’ to notice and an to be heard. It also should right assist errors the trial court from the court’s forestalling any by resulting issuance of a Palma notice that is based or upon incomplete inaccurate writ to which there been no and further has petition response, assist in writ or that avoiding subsequent appellate proceedings such errors.10 brought challenge by Academy Appellate The amicus curiae brief filed in this court the California Lawyers resolving great presented has been of assistance in the issues this case. One issue “suggestive” “speaking” raised that alternative writs- —is propriety brief —the of so-called however, note, do opinion. not before the court and therefore is not addressed in this We writ,

following always possibility the issuance of alternative there is that the trial court writ, (See, petition with the and court will as moot. comply will dismiss

V. reach, did not the Court of we conclusions foregoing In light the order comprising issuing August err in noted, underly- the litigation settlement here at issue. As subsequent in that petition. the relief sought rendered moot has Brown’s ing dismissing judgment the Court Appeal’s We therefore affirm proceeding. Chin, Baxter, J., J.,

Kennard, J., concurred. face are WERDEGAR, J., Dissenting. questions Concurring —The are given Palma notices permissible, or “coercive” whether “suggestive” Rules of and the California section 1088 of Code of Civil Procedure strictures so, them in the exercise Court, whether, countenance even if we should to the first The answer the courts of this state. over of our supervisory powers submit, second, not”; I is an the answer these is “probably questions I of this appeal, respectfully on the merits “no.” Accordingly, unqualified dissent.2

I one, it is critical For we agree and I on agree many points. My colleagues to submit notice and the opportunity have writ proceedings (See maj. opn., action is taken. the decision maker before adverse briefing another, ante, that conservation of 1248-1250.) judicial For we agree at pp. it can be without compromising resources—to the extent accomplished What and worthy goal. an admirable hearings interests of fair litigants —is notices, even as the extent to which suggestive over is disagree (maj. the majority proposes trial court modified the additional proceedings ante, 1248-1250), these satisfy goals. opn., pp. section 1088’s require- Code of Civil Procedure

In we interpreted could issue. We writ that “due notice” be before provided peremptory ment 2008) al., (The Group Rutter Appeals Guide: Civil and Writs e.g., Eisenberg et Cal. Practice 15:157.5-15:157.6, 2009).) (rev. principles that under the # It follows pp. 15-74 to 15-75 §§ above, response to an considering changing an interim order in set forth if trial writ, to be heard. give respective parties notice and alternative it must 1 Fasteners, 681 P.2d Inc. Cal.Rptr. Cal.3d 171 v. U.S. Industrial notice, (Palma). Appeal intimates a Court In a or coercive court, grant probably peremptory and to the trial that it will proceeding, to a writ these terms best describe one debate what the trial court reverses itself. While relief unless to them notices, and will refer majority’s choice of nomenclature accept for convenience I suggestive. as moot, dismissing the judgment agree Appeal’s case is I Because this affirmed, extent I concur. and to that limited technically should be proceeding identified both notice and an to be heard as essential prerequi- sites: writ of mandate or “[A] not prohibition [may] issue in the first instance unless the affected parties adversely the writ have received court, from the or from the petitioner that the issuance of such a writ in the first instance addition, is being sought or considered. In an appellate circumstances, absent exceptional should not issue a writ in received, solicited, first instance without having or from the opposition (Palma, affected.” parties adversely Cal.3d at A traditional Palma notice satisfies these The requirements: party opposing writ receives notice and is time given to file in the Court of before that Appeal contrast, court decides the merits of the writ. Here in where the instead, Court of issued a suggestive Palma notice proceedings below violated Palma’s requirements.

This Brown, case arises from an insurance coverage Law firm dispute. Canzoneri, Winfield & (Brown Winfield), Inc. was sued for malpractice by Azusa Pacific University based on the firm’s of an eminent domain handling action. Brown Winfield carrier, sought from its coverage Great malpractice American Insurance (Great American); Company Great American accepted defense of the action with a reservation of but also filed a rights, declaratory relief action there was no asserting Brown Winfield coverage. obtained a stay relief action declaratory decision of the pending underlying malpractice case, but in 2007 the trial court lifted the stay. relief,

On Brown Winfield’s for writ issued the suggestive Palma notice at issue here. The notice discussed merits at length the trial court had strongly suggested erred in lifting stay. so, done the Court Having the trial Appeal gave jurisdiction its mind and enter a change revised order. The trial court did so the next day and the later, dismissed the two Appeal weeks all without Great briefing by American to be heard. opportunity notice,

While Great American was one technically provided may question how the notice meaningful was in of the fact it light was issued after the 28, 2007, close of on business and elicited a August reversal from the trial court less than 24 hours later.3 More below violated clearly, proceedings that an to requirement opportunity present opposition provided parties a (Palma, issuance of writ before the matter opposing adjudicated. supra, 180; Proc., Cal.3d at Code Civ. p. Were Great American’s counsel himself, he could Superman not have brief and filed it prepared opposition it, in time for the Court of to read rethink its issue a new Appeal position, 3 Our copy of the notice shows it Appeal was faxed clerk’s office at 6:25 p.m. August on The August 28. trial court’s minute order is dated p.m. 29 at 1:30 itself, that new and consider the trial receive have reversing order itself. reversing order before the orderly Palma notice subverts

This case illustrates how a issuing a By a writ could issue. we intended before process notice, the writ— maker on of decision Court —the from the heard on merits without ever having expresses opinion ante, (maj. opn., this can be deemed “tentative” side. That decision opposing issues a a court 1245-1246) at does redeem the When process. not pp. chance decision, has a stands to lose generally who party tentative and reach a of it to reconsider side to that court in persuading its argue hopes notice denies writ this opponents decision. A different the trial court it the case back to because sends effectively opportunity case, the issue to be (or, encouraging) thus as in this immediately, permitting in the Court Appeal. in the trial court without further proceedings resolved Here, course, court’s the trial speedy was problem amplified tell its side to meant that Great American was unable to which response, either court. Palma that suffice for Court

While it is true we it acknowledged adversely solicit informal from merely potentially at did so in (Palma, 180), contempla- affected 36 Cal.3d party time which to tion of a situation where that afforded reasonable party, forward the submit elected to briefing, forgo opportunity put voluntarily here, where, as merits of its We did not situation contemplate position. to explain affected no meaningful opportunity was adversely provided that no writ was not issue.4 Nor does it matter why peremptory attuned to the clear issued because the trial actually import ante, at (See maj. did as directed and reversed itself. opn., of Appeal’s 1240, 1245.) The writ under sine non of qua pp. heard, here. The lacking notice and an to be was meaningful ante, 1244) to the contrary (maj. contention majority’s unsupported opn., wrong.5 disingenuous simply right of the trial court had not Notably, gave only response; notice here a conditional if itself, days. As the trial court already response reversed Great American could file a within 13 uncommon, given very probably next that is not day reversed itself the occurrence —an respond. had strong wording of notices like one —Great American no this 5 acknowledgement might proceeding that warrant without “exceptional The circumstances” (Palma, 180) play at not come into p. for 36 Cal.3d does opportunity issuing peremptory a here. Given that Palma discussing requirements was the for procedural circumstances, writ, exceptional circumstances it requires highly which itself unusual the exigent error or simply justify peremptory would writ —clear alluded to cannot be those that is, present, every peremptory for a writ were the preconditions circumstances. That if time the an empty the would be preconditions skipping opposition present, “requirement” were also opposition may, I proceeding that warrant without exceptional one. The circumstances

Moreover, the here also failed to with the proceedings comport California Court, of Rules which “If the court the is notifies that it provide: instance, writ in the considering issuing first the peremptory respondent real in party interest serve and file an of may (Cal. Rules opposition.” Court, rule 8.487(b)(1).) While is rather than “may” permissive mandatory, the most credible of this is that an reading provision affected adversely but right, has choose not to exercise to may that issuance of right, oppose Palma writ. one peremptory Suggestive notices like the issued here cannot .6 reconciled that right matter, Palma aAs practical the to majority’s permit proposal suggestive notices, the court provided trial solicits before the in briefing acquiescing issue, Court of Appeal’s views on does not in view cure my failings. these 1088, supra, 36 Cal.3d Code of What Civil Procedure section rule 8.487(b)(1) the California the of Rules of all focus on is maker, the decision to be heard importance meaningful opportunity with the entity ultimate on a authority question. In suggestive situations, court, of notice the Court not the mistaken trial Appeal, supposedly true is the decision maker. to be heard Consequently, in Rare, believe, court trial I a trial may prove illusory. is that would adhere its initial in the face of of a Court written Appeal’s that assessment it was if the wrong. advanced patently Critically, position is flawed because of something overlooked, the trial unaware of from of Appeal oversight this the text itself, the notice be reluctant on such an overlooked as may rely ground awith meritorious but overlooked dispositive; presented argument, trial is itself see likely reverse I cannot from a fairness anyway. or a of fairness perspective, perception perspective affording litigants — have and had they sense been heard their in court —how this is day superior Courts of wait a having few extra for opposition Appeal days briefing.7 think, reasonably justified by exigent be confined to cases where the is peremptory truly circumstances —where of the justified time essence —rather than cases where the writ is then, by the how only (apparent) of the trial depending just obviousness court’s error. Even on are, exigent Appeal circumstances there be time for a to solicit oral or written input greatly expedited from the on a schedule. 6 notices are concluding In with the consistent California Rules Court, 8.487(a)(4), majority rule it only permits addresses which court to issue notice that considering obtaining preliminary issuance of a writ without It opposition. first (b)(1), disregards governs briefing that rule’s which to submit right subdivision after contemplated being that a writ is has been sent. majority opinion suggests depriving The Courts of use ante, “muzzlfing]” (Maj. notices at so. opn., would amount to them. fn. Not The vice such notices lies in the invitation to trial courts to unburden the Courts of proceedings “strong]] suggestion] further court act from that the trial in accordance with —the ante, 1246) thereby (maj. opn., placing litigants court’s views” — losing position without a bona fide to be heard before true decision maker

II Rules of Palma and the to the California The look urge requirements past understandable, some there if still were unjustified, Court be at least might of Palma in either the suggestive procedure administrative benefit to significant is not. modified the There majority. its form or as original of a small notices have saved Courts Appeal That they feel time, at the cost of some having litigants of albeit likely amount economy true. is hearing, a fair be But Appeal were of deprived of from decisionmaking same and the transfer not the as judicial economy, aggregate. level is not resource saver in the necessarily one court to another whole, to at the trial as well must consider the costs the court as a system We That trial court now majority as at level. proceedings Palma increased over the usual efficiency involve proposes judicial .8 is not procedure apparent moreover, unintended From a more efficiency perspective, pernicious litigants likely. of decision for both courts and is As today’s consequence curiae of Lawyers amicus the California Academy ably explained Appellate its oral their clients how or briefing argument, attorneys advising in and at to must take account the full of range whether a writ into oppose outcomes face. Before could advise their they today, attorneys safely potential or to nothing, solely clients limited doing filing preliminary opposition for failure establish essential petitioner’s prerequisites procedural relief, writ cost heard on the would not their clients be in merits court with ultimate the matter. From decisionmaking power advice, I or is about the majority right of client whether perspective of briefing trial court as a substitute for in the Court of sufficiency briefing matters If any perceive being attorneys not. number of Appeal significant returned to the trial court with the deck them a risk and less stacked against than of to brief desirable the Court remaining Appeal denied, relief be insulate from why wish to themselves simply entail, of client criticism a turn events can such Courts Appeal to see rise in the number of full-blown briefs expect preliminary opposition addressing briefing may merits of Increasingly, petition. Nothing offering would from an account of Appeal a case. foreclose Court a long were preliminary proceedings views as it also made clear further so here, nor, be conducted in court and not the court. That is what was done it would trial not (See generally it case with Cal. Writ Practice appear, notices. Civil id., 22.22, 603-604; 28.9, (Cont.Ed.Bar 2009) 747-748.) pp. 4th pp. § ed. 8 Moreover, notice reverses standing if a trial court in the shadow of a erroneously, reasons but that could have been itself overlooked briefing initially trip up in that expeditiously called to its attention had occurred a second efficiency. necessary. This is the opposite will 1256

become frontloaded. Consideration of such briefs will necessarily consume more resources, time and Appeal to say of the extra nothing cost to the litigants. The majority’s solution for this is to problem encourage not require— —but

Courts of Appeal notify invite before taking any ante, action other than summarily denying writ. (Maj. 1248.) at opn., But p. Palma and the Code of Civil Procedure already require this for (Palma, supra, writs. 180; Proc., 36 Cal.3d at Code Civ. p. 1088.) If the suggestion for Courts of to issue a Palma-notice presuggestive additional “Brown notice —a new and notice, if you will —to just Winfield' eliminate suggestive Palma notices would seem far simpler.

HI Palma The original broken; was not procedure it did not need It fixing. should have sufficed here for this court to remind the Courts of that the Palma invoked, is to be procedure not rarely, and that routinely, an procedure requires opportunity briefing before the Court of Appeal reaches the merits of a writ (See petition. 36 Cal.3d at Palma's No sound reason exists to with dispense of notice and requirements for the opposing heard in the Court of Appeal. The majority acknowledges that Palma notices are in the appropriate only ante, “rare circumstances” (maj. 1237) opn., where immediate action is or the trial required court’s error is utterly and I indisputable, with fully agree Lewis v. Superior Court (See sentiment. 1232, (1999) 19 Cal.4th 1261 [82 85, however, 970 P.2d Cal.Rptr.2d as emphasize, 872] we have in [“We decisions, accelerated procedure is reserved for truly that the previous exceptional primarily those which a compelling temporal urgency cases— Alexander v. Superior decision.”]; Court immediate requires (1993) 5 1218, 397, Cal.4th 1223 96], P.2d Cal.Rptr.2d [23 859 overruled on other Hassan v. American Mercy River grounds Hospital by 709, (2003) 31 Cal.4th 724, v. Ng fn. 4 Superior 726]; 74 P.3d Cal.Rptr.3d [3 Cal.4th 840 P.2d stress that [“We accelerated Palma is the procedure it should not become exception; rout ine.”].)9 But the rest of the majority opinion undermines this effectively Palma view. our By giving imprimatur procedure, it, fear, inevitably will encourage and with I spread, further overuse and abuse of the Palma itself. procedure 9 We are advised counsel include Palma routinely for amicus curiae that some courts now notices in their initial form requesting preliminary notices opposition. Whatever convenience notice, this of the Appeal, afford the Courts of it purpose defeats the which is to

provide actual notice that a being writ is in fact contemplated, and is at odds with admonitions that repeated our procedures are exceptional to be reserved for cases. reasons, that the Court conclusion

For these I disagree majority’s a notice issuing did not err in of Appeal trial in its favor reversed resulted in Great American having I to be heard. further than later with no less 24 hours new procedural decision erect elaborate with the disagree majority’s to cure unadmitted flaws in requirements entail likely do little to cure those flaws procedure, step its own unintended consequences. J., J.,

Moreno, concurred. and Corrigan,

Case Details

Case Name: Brown, Winfield & Canzoneri, Inc. v. Superior Court

Court Name: California Supreme Court

Date Published: Feb 1, 2010

Citation: 104 Cal. Rptr. 3d 145

Docket Number: S156598

Court Abbreviation: Cal.