Lead Opinion
Opinion
C. J. Whеn an appellate court considers a petition for a writ of mandate or prohibition, it is authorized in limited circumstances to issue a peremptory writ in the first instance, without having issued an alternative writ or order to show cause. (Code Civ. Proc., §§ 1088, 1105; Alexander v. Superior Court (1993)
As we shall explain, the statutes and rules governing peremptory writs of mandate and prohibition do not require an appellate court to afford the parties an opportunity for oral argument before the court issues such a writ in the first instance, and in the past this court and the Courts of Appeal have
We further conclude that the Court of Appeal’s opinion directing the issuance of a peremptory writ of mandate in this case satisfies the requirement that “[d]ecisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” (Cal. Const., art. VI, § 14.)
I
Real party in interest Chester Green sustained personal injuries when the horse he was riding stumbled on a road owned by petitioner James T. Lewis. Green sued Lewis for negligence, alleging that Lewis failed to maintain the road in a safe condition, thereby causing Green to fall to the ground when his horse stepped into a rut. Chester Green’s wife, real party in interest Robin Green, alleged a cause of action for loss of consortium.
Lewis moved for summary judgment on the ground the Greens’ claims are barred by the recreational use immunity found in Civil Code section 846, which provides that landowners generally have no duty to keep their land safe for use by others for any recreational purpose.
Lewis filed a petition for writ of mandate, prohibition, or other appropriate relief in the Court of Appeal. He requested that the court issue an alternative writ commanding the superior court to vacate its order denying the motion for summary judgment and to enter an order granting that motion, or to show cause before the Court of Appeal why it should not do so and why a peremptory writ should not issue. Lewis further requested that on the return of the alternative writ and a hearing on the order to show cause, the Court of Appeal issue a peremptory writ directing the superior court to grant his motion for summary judgment. Finally, Lewis asked the Court of Appeal to grant such other relief as the court deemed just and proper.
Before receiving opposition from the Greens, the Court of Appeal filed and served a document that stated in relevant part: “Good cause appearing therefor, [^] Real party is invited to file a response to the petition for writ of mandate/ prohibition on file herein .... Unless good cause is shown, the court may issue a peremptory writ.” Accordingly, the Greens filed an “Opposition to Petition for Writ of Mandate/Prohibition; Or Request for Alternative Writ,” which contained 30 pages of points and authorities. Their opposition included a separately numbered and captioned argument explaining that the issuance of a writ of mandate in the first instance would establish law of the case and finally dispose of their claims, precluding them from raising the issue on appeal; “[y]et, in the ordinary course of appeal, the Greens would be entitled to a complete briefing schedule and oral argument.” Therefore, they requested that, if the Court of Appeal intended to entertain the petition further, “an alternative writ be issued, a briefing schedule established, and the case calendared for oral argument.”
Four days after the Greens filed their opposition, and without issuing an alternative writ or order to show cause, or hearing oral argument, the Court of Appeal filed a three-page written decision directing the issuance of a peremptory writ of mandate, instructing the superior court to set aside its order denying Lewis’s motion for summary judgment and to enter a new order granting the motion. The decision begins with the following comments: “The court has read and considered the petition and the opposition thereto which we conclude adequately address the issues raised by the petition. We have reviewed the record and concluded that no factual dispute exists. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of an alternative writ would add nothing to the presentation already made. Accordingly, the issuance of a peremptory writ in the first instance is appropriate. (Palma v.
The Greens then filed a “Petition for Judicial Rehearing; Request for Oral Argument.” They asserted, among other things, that the Court of Appeal’s “abbreviated opinion” fails to discuss the evidence and legal authority supporting the trial court’s ruling, and that it improperly weighs disputed facts. The Greens also noted the “anomalous situation” that they would have been afforded more complete consideration of their arguments through direct appeal, including full briefing and oral argument, had the superior court ruled against them and granted Lewis’s motion for summary judgment. The petition for rehearing requested “the judicial consideration routinely provided by the Appeals Division of this Court . . . .” The Court of Appeal denied without comment the petition for rehearing.
The Greens petitioned for review, raising several issues regarding both the procedural and substantive questions involved in the Court of Appeal’s resolution of the petition for writ of mandate. We granted the petition for review but limited briefing and oral argument to the following issues: “(1) Is there a right to oral argument prior to issuance of a peremptory writ in the first instance? (2) Does the Court of Appeal decision satisfy the requirements of article VI, section 14, of the California Constitution (‘Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.’)?” In light of our order limiting the issues on review, we have no occasion to consider whether the Court of Appeal properly determined that this was an appropriate case for the issuance of a peremptory writ in the first instance, or whether the Court of Appeal correctly concluded that Lewis’s motion for summary judgment should have been granted.
II
A
When an appellate court considers a petition for writ of mandate or prohibition, the court may: (1) deny the petition summarily, before or after receiving opposition; (2) issue an alternative writ or order to show cause; or (3) grant a peremptory writ in the first instance, after compliance with the procedure set forth in Palma, supra,
An alternative writ commands the party to whom it is directed (the respondent) either to do the act required to be performed, or show cause before the court why the respondent has not done so. (Code Civ. Proc., § 1087.)
Section 1088 authorizes the court to issue a peremptory writ in the first instance, without prior issuance of an alternative writ or order to show cause. We have emphasized, however, that this authority is limited and that the accelerated procedure authorized in section 1088 “ ‘is the exception; it should not become routine. . . .’” (Alexander, supra,
Unless the court summarily denies the petition or the respondent performs the act specified in an alternative writ, the matter becomes a “cause” that must be decided “in writing with reasons stated.” (Palma, supra, 36 Cal.3d at p. 178 & fns. 5 and 6; Cal. Const., art. VI, § 14.) “If the court concludes that a peremptory writ of mandate should be granted, the opinion will direct that it issue. If not, the petition will be denied.” (Palma, supra, 36 Cal.3d at p. 178.)
When an appellate court issues an alternative writ or order to show cause, the parties are given an opportunity for oral argument. (Kowis, supra, 3 Cal.4th at pp. 894-895.) Our opinion in Palma includes dictum that the issuance of a peremptory writ in the first instance dispenses “with the need to await the filing of a return, oral argument, and the preparation of an appellate opinion.” (
Our opinion in Bay Development, supra,
Although the foregoing discussion in Bay Development suggests that a Court of Appeal hears oral argument on petitions for a writ of mandate only after issuing an alternative writ or order to show cause, we had no reason in Bay Development to decide whether the parties must be afforded an opportunity for oral argument before an appellate court issues a peremptory writ in
Our subsequent decisions have not suggested that the foregoing dicta in Palma and Bay Development regarding oral argument were dispositive of the issue. To the contrary, in more recent decisions we expressly have reserved the question whether an appellate court must provide an opportunity for oral argument before issuing a peremptory writ in the first instance. (Alexander, supra,
B
Some Courts of Appeal understandably have interpreted this court’s decisions to mean that parties need not be provided an opportunity for oral argument under the accelerated procedure for issuance of a peremptory writ in the first instance. (E.g., PH II, Inc. v. Superior Court (1995)
The Greens rely primarily upon the right to oral argument on appeal, contending that whenever the Court of Appeal renders a decision resolving a cause and establishing law of the case—including a decision directing issuance of a peremptory writ in the first instance—the parties have a constitutional and statutory right to oral argument before the writ issues. Because we need not reach the Greens’ constitutional arguments if applicable statutes confer a right to oral argument, we first examine the statutory language. (Santa Clara County Local Transportation Authority v. Guardino, supra, 11 Cal.4th at pp. 230-231 [this court will not decide constitutional questions where other grounds are available and dispositive of the matter before us].)
Statutes governing prerogative writs are found in part 3 of the Code of Civil Procedure, entitled “Of Special Proceedings of a Civil Nature.” Title 1 of part 3 sets forth procedures applicable to writs of review, mandate, and prohibition. Sections 1087 and 1088 distinguish between alternative and peremptory writs of mandate.
Section 1087 states: “The writ may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a time and place then or thereafter specified by court order why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted.”
Section 1088, which authorizes issuance of a peremptory writ of mandate in the first instance, states: “When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.” (Italics added.) This statute also is made applicable to writs of prohibition by section 1105.
Other sections concerning prerogative writs mention hearings or arguments but do not appear to require them. Thus, section 1108 states: “Writs of review, mandate, and prohibition issued by the Supreme Court, a court of appeal, or a superior court, may, in the discretion of the court issuing the writ, be made returnable, and a hearing thereon be had at any time.'” (Italics added.) Section 1090 provides: “If a return be made, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, . . . the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had . . . .” (Italics added; see also rule 56(e) [“the return shall be made at least five days before the date set for hearing”].)
Accordingly, California courts have concluded that use of the terms “heard” or “hearing” does not require an opportunity for an oral presentation, unless the context or other language indicates a contrary intent. In Niles
In Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998)
A majority of other jurisdictions have concluded that the use of the term “hearing” in a statute does not confer a right to oral argument unless
Thus, in determining whether the Legislature intended that the words “heard” or “hearing” as used in the statutes regarding prerogative writs must include a consideration of oral argument, we examine the context in which those terms appear. Other words used in these provisions suggest that, at least in some circumstances, the Legislature did contemplate that the hearing of the matter would include an appearance and oral argument by the parties. Section 1094’s statement that “the court must proceed to hear or fix a day for hearing the argument of the case,” and section 1090’s provision allowing the court to “postpone the argument” until after a trial of factual issues, both
All these references to setting a time for, and hearing, the argument regarding a petition for a prerogative writ, however, appear in provisions that apply only if a return is filed. Rule 56 makes clear that the respondent or real party in interest may file a return in an appellate court only after the court grants a petition for an alternative writ or issues an order to show cause. (Rule 56(b) [the respondent and/or real party in interest may file points and authorities in opposition to the petition within five days after service and filing]; rule 56(e) [“If ... a writ or order to show cause issues, the respondent or real party in interest or both . . . may make a return, by demurrer, verified answer or both.”]; § 1089 [reserving to the Judicial Council the authority to adopt rules regarding returns to alternative writs and to applications for writs]; see also Palma, supra, 36 Cal.3d at pp. 177-178; 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 181, pp. 977-978.) When no return is filed, applicable statutes refer only to a requirement that the case be “heard.” (§§ 1088, 1094.)
The use of the term “heard” in section 1088, authorizing issuance of a peremptory writ in the first instance, does not appear to contemplate consideration of oral argument. In context, the requirement that the case “must be heard” means that the court cannot issue the writ by default, but rather must consider and evaluate the petition before granting the relief requested, even if the adverse party does not respond to the petition.
Although no opinions have provided a legal analysis of the issue, several Court of Appeal cases—decided before we stated in Palma that the issuance of a peremptory writ in the first instance dispenses with the need for oral argument—are consistent with our conclusion that statutes governing the issuance of writs of mandate and prohibition do not require an opportunity for oral argument in this situation. For example, in Davis v. Superior Court (1980)
Courts of Appeal also have issued peremptory writs in the first instance without hearing oral argument where placing the matter on calendar would
Subsequently, in both Palma, supra, 36 Cal.3d at page 178, and Bay Development, supra, 50 Cal.3d at page 1024, we indicated that an appellate court may issue a peremptory writ in the first instance without hearing oral argument. Although, as mentioned previously, those statements were dicta, both cases clearly interpret the controlling statutes as permitting issuance of the writ in the first instance without affording the parties an opportunity to present oral argument. That interpretation is consistent with the long-standing construction of these provisions by Court of Appeal decisions and leading treatises, and with our statutory analysis set forth above. Moreover, on a number of occasions this court has issued peremptory writs in the first instance without providing an opportunity for oral argument. (See rule 28(g) [“When review is granted [by the Supreme Court], the cause shall be placed on the calendar for oral argument unless ... the court . . . issues a peremptory writ.” (Italics added.)].)
Therefore, we conclude that the statutes governing writs of mandate and prohibition do not require an appellate court to provide an opportunity
C
The right to oral argument on appeal is well established in this state. In Brigham, supra, 25 Cal.3d 283, the Court of Appeal denied the defendant’s request for oral argument and summarily affirmed his conviction. We reversed the Court of Appeal’s judgment on the ground that it had denied defendant the right to oral argument, which we traced to the state Constitution, the Penal Code, the California Rules of Court, and prior decisions of this court. Article VI, section 2 of the California Constitution provides in part: “Concurrence of 4 judges present at the argument is necessary for a judgment” by the Supreme Court. Section 3 of that article, applicable to Courts of Appeal, similarly provides in relevant part: “Concurrence of 2 judges present at the argument is necessary for a judgment.” Our decision in Brigham notes that in Metropolitan Water Dist. v. Adams (1942)
Brigham also found an implicit right to oral argument in former rule 22, which specified the sequence of argument and the time allotted for each party’s counsel.
We recognized the right to oral argument in civil appeals in Moles, supra,
The Greens accurately observe that the issuance of a peremptory writ in the first instance by an appellate court is a final determination of a cause on the merits. (Kowis, supra,
Our decisions finding a right to oral argument on appeal traced that right to a number of sources, including the California Constitution, statutes, rules of court, and prior case law. The Greens argue that article VI, sections 2 and 3 of the California Constitution, which require the concurrence of the specified number of justices “present at the argument” to pronounce a judgment, also apply to judgments directing issuance of a peremptory writ in the first instance. Lewis, on the other hand, argues that these provisions do not extend to such proceedings. He relies in part upon Metropolitan Water Dist. v. Adams, supra,
Although a decision to issue a peremptory writ in the first instance constitutes a judgment, and article VI, sections 2 and 3 of the California Constitution apply to such proceedings, these provisions do not, by themselves, mandate an opportunity for oral argument before the court renders such a decision. In Moles, supra,
Soon after its creation, this court recognized its authority to issue a peremptory writ in the first instance. In People v. Turner (1850)
We have determined that the similar language presently used in section 1088 does not confer a right to oral argument before an appellate court
The circumstance that neither Moles nor Brigham relied solely upon these constitutional provisions in holding that there is a right to oral argument on appeal also suggests the provisions independently do not confer such a right. Our holdings in those decisions also depended upon statutes and rules referring to oral argument on appeal. As established in the preceding section, the statutes governing writs of mandate and prohibition do not require an opportunity for oral argument before an appellate court issues a peremptory writ in the first instance.
Furthermore, a 1985 amendment to rule 28, governing oral argument in this court, undermines the position that rules 22 and 28 require oral argument before such a writ may issue. The former version of rule 28 considered in Brigham stated: “When a hearing is granted, the cause shall be placed on
Finally, no decisions of this court have construed applicable rules, statutes, or constitutional provisions as requiring an opportunity for oral argument before an appellate court issues a peremptory writ in the first instance, as did prior case law considered in Brigham and Moles regarding oral argument on appeal.
The limited circumstances in which an appellate court is authorized to issue a peremptory writ in the first instance demonstrate that oral argument is unnecessary in this context. The accelerated Palma procedure is authorized only “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.”
The Greens argue that denying oral argument in this context penalizes the real party in interest who obtained a favorable ruling in the trial court. They observe that if the real party in interest had suffered an adverse ruling in the trial court, he or she would have had the right to an appeal, including oral argument, even if the trial court’s ruling obviously was correct. The Greens rely upon our decision in Kowis, supra,
Unlike the summary denial of a writ petition, however, a decision to issue a peremptory writ in the first instance necessarily includes a consideration of and ruling upon the merits of the petition.
We conclude that the right to an opportunity for oral argument on appeal does not extend to proceedings in which an appellate court is authorized to
We emphasize, however, as we have in previous decisions, that the accelerated Palma procedure is reserved for truly exceptional cases—primarily those in which a compelling temporal urgency requires an immediate decision. Denying plenary consideration where the petitioner’s entitlement to relief is “obvious” and “entirely clear” under “well-settled principles of law and undisputed facts” (Ng, supra,
Denying an opportunity for oral argument before the issuance of a peremptory writ of mandate or prohibition in the first instance would be unfair to the parties only if the court’s use of the accelerated Palma procedure were unwarranted. The remedy for such unfairness is not uniformly to require oral argument before a peremрtory writ is issued in the first instance, but rather to restrict the use of that procedure to the narrow category of cases described above.
III
The other issue presented for our review is whether the Court of Appeal’s opinion directing issuance of the peremptory writ satisfies the requirements of article VI, section 14 of the California Constitution, which states in pertinent part: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” In deciding this issue, we express no view regarding the merits of the Court of Appeal’s decision.
As we noted in Amwest Surety Ins. Co. v. Wilson (1995)
These remarks are consistent with an observation this court made 20 years earlier: “An opinion is not a controversial tract, much less a brief in reply to the counsel against whose views we decide. It is merely a statement of conclusions, and of the principal reasons which have led us to them.” (Holmes v. Rogers (1859)
The Court of Appeal’s decision in the present case includes three paragraphs analyzing Lewis’s argument that the action is barred by the recreational use immunity set forth in Civil Code section 846. The opinion first notes that this statutory immunity is an exception to the general rule that private landowners owe a duty of care to any person coming upon the land, and that the issue whether someone has entered property for a recreational purpose generally is a question of fact. (Citing Ornelas v. Randolph (1993)
We disagree. As explained above, an opinion is not a brief in reply to counsel’s arguments. (Holmes v. Rogers, supra,
Arguments similar to those advanced by the Greens were rejected long ago. In Burgesser v. Bullock’s (1923)
Applying these standards to the Court of Appeal’s opinion in this case, we find that it satisfies the constitutional requirement that decisions determining causes shall be in writing with reasons stated. The opinion describes the general nature of the recreational use immunity, concludes the record establishes that the immunity applies because Green’s purpose in riding his horse was for recreation, and rejects the argument that the recreational nature of the ride ended when Green entered Lewis’s property. These are adequate statements of the principal reasons for the Court of Appeal’s decision. The Greens disagree with the court’s conclusions and contend that the opinion omits discussion of law and facts supporting their position, but they cannot dispute legitimately that the Court of Appeal has stated the reasons for its decision.-
IV
The judgment of the Court of Appeal is affirmed.
Mosk, J., Baxter, L, Werdegar, L, and Chin, L, concurred.
Notes
Civil Code section 846 states in pertinent part: “An owner of any estate or any other interest in real property . . . owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose . ... [¶] A ‘recreational purpose,’ as used in this section, includes such activities as . . . riding, including animal riding . . . .”
Further undesignated statutory references are to the Code of Civil Procedure.
Rule 56(b) of the California Rules of Court states in part: “The court in its discretion (1) may allow the filing of the petition without service, and (2) may deny the petition or issue an alternative writ without first requesting the filing of opposition.” Further undesignated rule references are to the California Rules of Court.
People v. Brigham (1979)
Some Courts of Appeal that include provisions regarding this issue in their Internal Operating Practices and Procedures state that they do not hear oral argument before issuing a peremptory writ in the first instance. Thus, the Internal Operating Practices and Procedures of the Courts of Appeal for the Second District, Division Seven (XU, Original Proceedings), Fourth District, Division One (V, Appeals), and Fifth District (III, subd. (C), Writs) expressly provide that, at least on some occasions, no oral argument is held before issuance of a peremptory writ in the first instance.
The Sixth District, however, specifies that if “the court preliminarily determines that affirmative relief [requested in a writ proceeding] should be granted, the court will proceed by way of the alternative writ and issue an order to show cause.” (Ct. App., 6th Dist., Internal Operating Practices & Proc., II, subd. (D), Original & Discretionary Proceedings.) The Second District, Division Two, provides that “[w]rits granted are calendared and thereafter treated in precisely the same manner as cases originally assigned” (Ct. App., 2d Dist., Div. 2, Internal Operating Practices & Proc., VII, Original Proceedings), although it is unclear whether this provision applies to peremptory writs issued in the first instance.
Chief Justice Lucas’s concurring opinion in Bay Development, supra, 50 Cal.3d at pages 1036-1037 and footnote 1, commented upon rule 3 of the Local Rules of the Fourth District, Division One, which provides that the court will accept for filing only those petitions for writs of mandate and prohibition that “pray solely for a peremptоry writ”; the court does not accept petitions that request issuance of an alternative writ. On the other hand, that court’s procedures (Ct. App., 4th Dist., Div. 1, Internal Operating Practices & Proc., V, Original Proceedings) specify that the court may choose to issue an alternative writ or order to show cause. The concurring opinion in Bay Development observed that rule 3 and Internal Operating Practices and Procedures V indicate that this division of the Court of Appeal has “fail[ed] to conform its practices with those required statewide by the general procedures and rules governing writ practice” (50 Cal.3d at pp. 1036-1037), and the concurring opinion questioned the purpose of refusing to accept petitions requesting alternative writs where the court simply may issue a Palma notice when it wishes to issue a peremptory writ in the first instance. We agree with these observations. Because an appellate court clearly has authority to issue an alternative writ, and indeed the more common practice is to issue an alternative writ or order to show cause rather than a peremptory writ in the first instance, a petitioner should not be precluded from requesting an alternative writ.
Section 1105 states: “The provisions of the preceding Chapter [part 3, title 1, chapter 2, regarding writs of mandate], except the first four sections thereof, apply to this proceeding [regarding writs of prohibition].” (Italics added.) When section 1105 was enacted in 1872, the
Before section 1094 was amended in 1982, and ever since that statute first was enacted as part of the California Practice Act (Stats. 1851, ch. 5, § 476, p. 126), the first sentence of former section 1094 also used mandatory language: “If no return be made, the case must [“shalF in the 1851 version] be heard on the papers of the applicant.” (Italics added.) Apparently the change from “must” to “may” was necessary because the new paragraph added to section 1094 in 1982 specifies that a trial court also may determine the mattеr by “noticed motion of any party.” Thus, the statute permits the adverse party to file a motion for a judgment on the peremptory Writ, without filing a formal return. The trial court then may render judgment on the writ petition after considering the “papers of the applicant” together with the papers included with the adverse party’s motion. The previous version of section 1094 would have precluded consideration of such papers if no return was filed. (See also § 1107 and rule 56(b) [authorizing the filing of points and authorities in opposition to a writ petition filed in an appellate court].) Accordingly, the Legislature’s change of the term “must” to “may” does not appear to have been intended to dispense with the requirement that the case must be heard if no return is filed, but rather to permit consideration of written opposition presented in a form other than a return, which must conform to the usual rules of pleading governing an answer or demurrer in a civil action. (See 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, §§ 194, 195, p. 987.)
Section 1107, which contains general provisions regarding applications for all types of prerogative writs, states in part: “The court in which the application is filed, in its discretion and for good cause, may grant the application ex parte, without notice or service of the
The word “hear" is defined as follows: “to be made aware of by the ear [or] apprehend by the ear,” “to be informed or gain knowledge of by hearing,” “to listen to with favor or compliance,” “to listen to with care or attention,” “to attend and listen to,” “to listen to the recitation of,” “to give a legal hearing to,” or “to take testimony from.” (Webster’s New Intemat. Dict. (3d ed. 1981) p. 1044, col. 2.) The term “hearing” includes the following definitions: “the act or power of apprehending sound,” “the act or instance of actively or carefully listening (as to a speaker or performer),” “opportunity to be heard or to present one’s side of a cаse,” “a trial in equity practice,” or “a listening to arguments or proofs and arguments in interlocutory proceedings.” (Ibid.)
The court in Mediterranean disagreed with Sweat v. Hollister (1995)
The minority view is that the use of the term “hearing” does convey an intention that the court hear oral argument. (E.g., Com. v. Davis (1992)
Because it is written in the disjunctive, section 1094’s requirement that “the court must proceed to hear or fix a day for hearing the argument of the case” (italics added) arguably contemplates that, under some circumstances, a court may consider written arguments alone, without setting a particular day for the hearing.
In challenging this conclusion, Justice Kennard’s dissenting opinion contends that the term “appears” in the relevant sentence of section 1088—“The case must be heard by the court, whether the adverse party appears or not” (italics added)—-must refer to a physical appearance in court. (See dis. opn of Kennard, J., post, at pp. 1267-1268.) This contention, however, overlooks section 1014’s express definition of the term “appears” in this legal context: “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, . . . [or] gives the plaintiff written notice of appearance . . . .” This definition is made applicable to writ proceedings by section 1109.
An edition of Witkin’s California Procedure that preceded our decision in Palma also indicated that the generally understood rule at the time was that an opportunity for oral argument was not required before a reviewing court issued a peremptory writ in the first' instance. Thus, the treatise stated: “In prohibition and mandamus, the ultimate relief is granted by issuance of the writ. Hence, if, as is usual, a hearing is to be given on the petition and opposition, the preliminary step is an alternative writ. The alternative writ is in the nature of an order to show cause, and sometimes a simple order to show cause is issued in lieu thereof. [Citations.] [¶] . . . In rare cases the court will make a final decision on the initial showing; i.e., if the respondent and real party in interest had due notice, the issue is apparent and the right to relief is clear, and the usual procedure would only cause delay, ‘the peremptory writ may be issued in the first instance.[’] [Citations.]” (5 Witkin, Cal. Procedure (2d ed. 1971, supra) Extraordinary Writs, § 149, p. 3919, italics added.) The most recent edition of Witkin is in accord. (8 Witkin, Cal. Procedure (4th ed. 1997, supra) Extraordinary Writs, §§ 186, 224, 227, pp. 981, 1016-1017, 1020-1021.)
Former rule 22 stated, at the time Brigham was decided: “Unless otherwise ordered: (1) counsel for each party shall be allowed 30 minutes for oral argument; (2) not more than one counsel on a side may be heard except that different counsel for the appellant or the moving party may make opening and closing arguments; (3) each party and intervener who appeared separately in the court below may be heard by his own counsel; and (4) the appellant or the moving party shall have the right to open and close.”
Effective January 1, 1998, former rule 22 was amended and now applies only to oral argument in the Supreme Court; new rule 22.1 governs oral argument in the Court of Appeal. Rule 22 now states: “(a) This rule governs oral argument in the Supreme Court unless the court provides otherwise by order or in its Practices and Procedures. HQ (b) Counsel for each side is allowed 45 minutes for oral argument in a death penalty appeal and 30 minutes for oral argument in all other cases. ft[] (c) The petitioner or appellant has the right to open and close. If two or more parties petition for review, the court will indicate the order of argument.
New rule 22.1 states: “(a) This rule governs oral argument in the Court of Appeal unless the court provides otherwise by order or local rule, ffl] (b) Counsel for each side is allowed 30 minutes for oral argument. If multiple parties who are represented by separate counsel or counsel for amicus curiae request argument, the court may apportion or expand the time according to the respective parties’ interests, [fl] (c) The appellant or moving party has the right to open and close. If two or more parties file a notice of appeal, the court will indicate the order of argument, (d) No more than one counsel may argue for each party who appeared separately in the court below, unless the court orders otherwise, (e) Upon written request, the court may grant or deny any amicus curiae the opportunity to argue.”
Penal Code section 1254 states: “Upon the argument of the appeal, if the offense is punishable with death, two counsel must be heard on each side, if they require it. In any other case the Court may, in its discretion, restrict the argument to one counsel on each side.”
The only decision we have found suggesting that any rule, statute, or constitutional provision requires an opportunity for oral argument before issuance of a peremptory writ in the first instance is La Paglia v. Superior Court, supra,
It is settled that the court may summarily deny a writ petition without holding a hearing or permitting oral argument. (People v. Medina, supra,
In fiscal year 1996-1997, the Courts of Appeal required an average of approximately six months to dispose of a pending appeal after it was fully briefed. (Judicial Council of Cal., 1 Court Statistics Rep. (1998) p. 15.)
Section 437c, subdivision (g), states: “Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists. Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.”
See, e.g., People v. Mendoza Tello (1997)
Concurrence Opinion
I concur. I write separately only to emphasize that section 1088 of the Code of Civil Procedure
No distinction is made between issuance of a peremptory writ in the first instance by a superior court, or issuance of the writ to a nonjudicial respondent. The legislative authorization for issuance of a peremptory writ in the first instance reflects recognition that, on occasion, immediate judicial action is necessary to prevent or correct unauthorized or erroneous action by the respondent or to compel the respondent to act when required to do so. That respondent may be an elections official, a corporate officer, or a local sheriff who is refusing to perform a legally required act as to which there is great urgency.
Nothing in the debates in the constitutional convention preceding the adoption of the 1879 Constitution suggests that the drafters intended that any provision of article VI have any impact on the statutory authorization for, and practice of, appellate issuance of peremptory writs in the first instance without the delay necessitated by oral argument.
All statutory references herein are to the Code of Civil Procedure.
Dissenting Opinion
The majority holds that when a Court of Appeal grants a petition for a peremptory writ of mandate finally terminating a lawsuit, it may do so without giving the parties an opportunity for oral argument. I disagree.
Both the Code of Civil Procedure and our state Constitution guarantee a right to oral argument. Code of Civil Procedure section 1088 states that before a court may grant a mandate petition, “[t]he case must be heard by the court, whether the adverse party appears or not.” (Italics added.) Although this provision’s meaning is debatable, it is best interpreted, using normal rules of statutory construction, as recognizing a right to oral argument. Under the state Constitution, as construed by this court, there is not even room for debate. Our Constitution guarantees an opportunity for oral argument before a Court of Appeal renders a judgment. Because a decision granting a petition for writ of mandate is & judgment, a Court of Appeal may not grant a mandate petition without giving the parties a chance to argue their positions before the Court of Appeal justices who will render the decision.
The right to oral argument holds a cherished position in our legal tradition, and rightly so. As our society becomes incrеasingly depersonalized, it
I. Facts and Proceedings
Plaintiff Chester Green suffered serious injuries when the horse he was riding stumbled and plaintiff was thrown to the ground. The accident occurred on a deeply rutted dirt road that crossed land owned by defendant James T. Lewis.
Plaintiffs Chester and Robin Green sued Lewis, alleging that the dangerous condition of the road on Lewis’s land caused Chester Green’s injuries. Plaintiffs sought damages for personal injury (Chester) and loss of consortium (Robin). In his answer to the complaint, Lewis claimed the protection of Civil Code section 846, which states that, with certain exceptions, an owner of property “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose”; it defines “recreational purpose” as including “animal riding.”
Lewis moved for summary judgment, arguing that the immunity granted by Civil Code section 846 barred plaintiffs’ action. The trial court denied the motion, explaining in its statement of reasons that, because Lewis’s road provided the only access to plaintiffs’ property, there was a triable issue concerning whether, at the time of the accident, Chester Green was using the road for a “recreational purpose” within the meaning of Civil Code section 846.
Lewis sought review in the Court of Appeal by a petition for a writ of mandate. The Court of Appeal invited plaintiffs to file a response to the petition, warning that a peremptory writ might issue “[ujnless good cause is shown.” Plaintiffs filed timely opposition to the petition and requested oral argument if the Court of Appeal did not summarily deny the petition. Four days after the filing of plaintiffs’ written opposition, the Court of Appeal, without benefit of oral argument, rendered a decision granting a peremptory
To determine whether the Court of Appeal erred in denying plaintiffs an opportunity for oral argument, and to determine whether the Court of Appeal had adequately stated the reasons for its decision, this court granted plaintiffs’ petition for review.
II. Statutory Analysis
The Code of Civil Procedure specifies the procedural requirements that litigants and courts must satisfy before a writ of mandate may issue. Section 1088 permits a court to issue a writ of mandate “in the first instance”—that is, without issuing an alternative writ or an order to show cause—but it states that “[t]he writ cannot be granted by default” and that “[t]he case must be heard by the court, whether the adverse party appears or not.” (Italics added.)
As the majority points out, when used in a statute or other legal context to refer to an action by a court, the term “heard”—and its cognate forms such as “hear” or “hearing”—may have different meanings. It may mean a formal session of the court in a courtroom or in chambers at which the parties are represented and are permitted to address the court, for purposes such as oral argument or the submission of evidence. Or the term may, on occasion, refer simply to a court’s private consideration of the merits of a motion or a case. (Maj. opn., ante, at p. 1247.)
For a number of reasons, the term “heard” in Code of Civil Procedure section 1088 is better understood as requiring a formal court session at which the parties are afforded the opportunity for oral argument. For one thing, this is the more usual meaning of the term when applied in a legal context to describe a court’s action in relation to a motion or a lawsuit. To say that a particular judge “heard” a case most often means that the judge was physically present in a courtroom at a formally convened session of court at which the judge listened to and observed the parties or their legal representatives as they presented argument or evidence, or both, in support of their respective positions.
An examination of the term “heard” in the context of Code of Civil Procedure section 1088 confirms this interpretation. Section 1088 provides that a court may not grant a writ of mandate “by default,” after which this sentence appears: “The case must be heard by the court, whether the adverse
This interpretation is further confirmed by examining other sections of the Code of Civil Procedure relating to the procedure for issuing writs of mandate. It is an established rule of judicial construction that when a term appears in different parts of the same act, or in related sections of the same code, the term should be construed as having the same meaning in each instance. (Department of Revenue of Ore. v. ACF Industries, Inc. (1994)
Code of Civil Procedure section 1094 states that “[i]f no return be made, the case may be heard on the papers of the applicant.” Viewed in isolation, this provision is not helpful, as the term “heard” could have either of the two meanings mentioned above. But the section goes on to provide that “[i]f the return raises only questions of law, or puts in issue immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case.” (Italics added.) There can be no doubt that as used in this provision, the term “hear” means a court session at which the parties, through counsel, are given a chance to argue their positions orally.
Subdivision (a) of Code of Civil Procedure section 1094.5 states: “Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer, the case shall be heard by the court sitting without a jury.” (Italics added.) This provision has been interpreted as
This interpretation is consistent with the understanding of our appellate courts as conveyed in published decisions. This court has long recognized that if a petition for a writ of mandate fails to state a prima facie case, a court may deny it “out of hand”—that is, without a hearing. (Dare v. Bd. of Medical Examiners (1943)
In an early case, this court quoted the relevant provisions of Code of Civil Procedure sections 1088 and 1094, construing them as permitting “a hearing and a submission of the cause on the pleadings of the parties in a proceeding for mandamus as in any other,” and it concluded that the hearing requirement had been satisfied in that case because “the judgment recited that the ‘cause came on regularly for hearing on the twenty-first day of May, 1894,’ ” even though the responding party had failed to appear at the hearing. (Town of Hayward v. Pimental (1895)
For all of these reasons—the term “heard” usually embraces a right to oral argument; the qualifying phrase “whether the party appears or not” implies a formal court session; and in related provisions the words “hear” and “hearing” include a right to oral argument—Code of Civil Procedure section 1088 is best understood as requiring a court, including a Court of Appeal, to hold a hearing that includes an opportunity for oral argument before rendering a decision to issue a peremptory writ of mandate.
III. Constitutional Analysis
The California Constitution provides that in a Court of Appeal, “[concurrence of 2 judges present at the argument is necessary for a judgment.” (Cal. Const., art. VI, § 3, italics added.) This court has twice authoritatively construed this constitutional provision as conferring a right to oral argument.
The first decision involved a criminal prosecution in which, on the defendant’s appeal from a superior court judgment of conviction, the Court of Appeal had summarily affirmed the judgment without giving the defendant an opportunity for oral argument. (People v. Brigham (1979)
The second decision involved a civil action in which, on the plaintiff’s appeal from a superior court judgment denying a petition for a writ of mandate, the Court of Appeal altered the composition of the panel assigned to the appeal after oral argument to include a justice not present at the argument. (Moles v. Regents of University of California (1982)
Although both of these prior decisions of this court concerned judgments that a Court of Appeal rendered on appeal, whereas here the Court of Appeal rendered its judgment in an original proceeding for a writ of mandate, the language of the relevant constitutional provision applies alike to all judgments rendered by the Court of Appeal, and it admits of no distinction based on whether the judgment is rendered on appeal or in an original mandate proceeding. The majority concedes, as it must, that a decision of the Court of Appeal granting a peremptory writ of mandate in the first instance is a judgment of the Court of Appeal. (Maj. opn., ante, at p. 1256.)
To summarize, the Constitution provides that the “[c]oncurrence of 2 judges present at the argument is necessary for a judgment.” (Cal. Const., art. VI, § 3.) A decision of the Court of Appeal directing issuance of a peremptory writ of mandate in the first instance is a judgment of the Court of Appeal, the same as a decision of the Court of Appeal affirming or reversing a superior court judgment on direct appeal. If article VI, section 3, guarantees a right of oral argument in the one situation (direct appeal), it must equally guarantee a right of oral argument in the other situation (peremptory writ in the first instance). After careful consideration of the matter, this court has twice decided that article VI, section 3, does guarantee a right of oral argument in all appeals decided by the Court of Appeal. Therefore, necessarily, article VI, section 3, guarantees a right of oral argument when a Court of Appeal issues a peremptory writ in the first instance. The logic is ironclad. There is no sound basis upon which our prior decisions may be distinguished.
IV. Other Considerations
The majority’s decision produces anomalous results.
A superior court must give the parties an opportunity for oral argument before granting a motion for summary judgment. (Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998)
If the superior court grants summary judgment for one party and the other appeals, the Court of Appeal may not affirm the superior court’s judgment without granting the losing party an opportunity for oral argument. Yet, if the trial court has denied summary judgment, and the unsuccessful moving party seeks review by petition for a writ of mandate, the majority would permit a Court of Appeal, without giving the opposing party an opportunity for oral argument, to direct the superior court to vacate the order denying summary judgment and to enter a new order granting judgment. Thus, the party who loses in the superior court is guaranteed a right to oral argument in the Court of Appeal, but the party who wins is not. Why should the right to oral argument turn on whether a party won or lost in the superior court, and why should the right be given to a party who lost in the superior court but denied to a party who won in that court? The majority provides no satisfactory answer.
I see no reasonable basis for distinguishing these situations. The right to oral argument should not depend on whether the summary judgment is finally adjudicated on the merits in the superior court or in the Court of Appeal, nor should the right to orally argue in the Court of Appeal be granted to one who lost in the superior court but denied to one who prevailed in that court. In logic and fairness, the right to oral argument should be equally available in all of these situations.
There is another reason for preferring a rule that recognizes a right to oral argument when a Court of Appeal issues a peremptory writ of mandate in the first instance. This rule would be consistent with this court’s decisions on two related issues—when a Court of Appeal decision must be in writing with reasons stated and when a Court of Appeal decision establishes the law of the case.
This court has held that a decision of the Court of Appeal summarily denying a petition for a writ of mandate does not establish the law of the case, but that a Court of Appeal decision granting a petition for writ does establish the law of the case, irrespective of whether the peremptory writ is granted in the first instance or only after issuance of an alternative writ or an
The rule for written opinions is the same. The California Constitution states that “[decisions of the Supreme Court and сourts of appeal that determine causes shall be in writing with reasons stated.” (Cal. Const., art. VI, § 14.) When a Court of Appeal summarily denies a petition for a writ of mandate, it does not determine a cause, and therefore it need not explain the ruling in a written opinion. (People v. Medina (1972)
If a Court of Appeal decision is significant enough to establish the law of the case and to require explanation by a written opinion, it should be rendered only after the Court of Appeal has given the parties an opportunity for oral argument. Having separate rules for determining law of the case, written decision, and oral argument is unnecessarily confusing. A single test should govern all three.
Last but not least, recognizing a right to oral argument when a Court of Appeal issues a peremptory writ of mandate in the first instance acknowledges and reaffirms the worth of oral argument in the appellate process. Oral argument in the Courts of Appeal promotes confidence in those courts’ decisions, on the part of the litigants, counsel, and the public, by ensuring that the justices whose decisions will bind the litigants have indeed heard and considered, and perhaps debated, the merits of the litigants’ argument. The tremendous growth in the caseload of the Courts of Appeal, and their increasing use of professional legal staff, may give litigants cause to doubt that justices personally read all the briefs the litigants submit and personally write all the opinions the court issues. But oral argument removes all intermediaries and gives counsel an opportunity to make personal contact with the justices who will decide their case and to engage them in a dialogue on the merits of their respective positions. Speaking to litigants’ attorneys, Chief Justice Rehnquist explained the importance of oral argument for them in this way: “ ‘You could write hundreds of pages of briefs, and, you are still
Only three points in the majority’s tedious analysis require comment.
The majority asserts that this court’s construction of the state Constitution in Moles, supra,
The majority argues that “if an unusual urgency requires acceleration of the normal process, the writ petition might become moot before the court could schedule and hear oral argument, thereby depriving the court of jurisdiction where a stay or writ of supersedeas could not preserve the status quo.” (Maj. opn., ante, at p. 1259.) Situations in which the status quo may not be preserved by a stay or a writ of supersedeas are exceedingly rare, and in those rare situations I am confident that modem technology, particularly telephone and computer communications, will allow the Court of Appeal to give the parties an opportunity for oral argument before the matter is mooted by the passage of time.
The majority maintains that requiring Courts of Appeal to give litigants an opportunity for oral argument before granting a peremptory writ in the first instance “needlessly would add to the workload of already overburdened
V. Conclusion
As Second Circuit Judge Irving R. Kaufman has written: “An oral argument is as different from a brief as a love song is from a novel. It is an opportunity to go straight to the heart!” (Kaufman, Appellate Advocacy in the Federal Courts (1977)
An opinion I authored for the court has a statement that the statutory provisions governing petitions for writs of mandate give Courts of Appeal three options, one of which is to “grant a peremptory writ in the first instance without a hearing . . . .” (Bay Development, Ltd. v. Superior Court (1990)
Here, plaintiffs contend that the Court of Appeal’s written explanation for its decision failed to satisfy the written opinion requirement because the court’s reasoning was not explained in sufficient detail. The majority agrees with plaintiffs that the Court of Appeal’s decision was one of those that the Constitution requires to be in writing with reasons stated, but the majority concludes also that the Court of Appeal complied with this requirement. (Maj. opn., ante, at pp. 1261-1264.) I do not disagree with these conclusions.
Dissenting Opinion
This is a simple case. Or at least it ought to be.
The majority freely acknowledges that in People v. Brigham (1979)
In reaching a contrary conclusion, the majority observes that “[t]he circumstance that neither Moles nor Brigham relied solely upon these constitutional provisions in holding that there is a right to oral argument on appeal . . . suggests the provisions independently do not confer such a right.” (Maj. opn., ante, at p. 1257.) With all due respect, I cannot follow the majority’s tortured reasoning. The fact that Brigham and Moles cited sources other than article VI, sections 2 and 3 of the California Constitution does not alter the fact that both cases relied on these constitutional provisions as well. (See Moles, supra,
Instead of following Brigham and Moles, the majority resorts to “decisions of this court [that] have observed that oral argument is unnecessary if a court decides to issue the peremptory writ without first issuing an alternative writ or order to show cause.” (Maj. opn., ante, at p. 1258.) Apparently, the majority has in mind Palma v. U.S. Industrial Fasteners, Inc. (1984)
If, as both Brigham and Moles hold, article VI, sections 2 and 3 of the California Constitution afford a right to oral argument, there is no conceivable basis on which to carve out an exception for peremptory writs in the first instance. To the contrary, both constitutional provisions refer simply to “a judgment.” (See ante, fn. 1.) As the majority concedes, a judgment is a judgment, however it is rendered. (See maj. opn., ante, at p. 1256 [peremptory writ in the first instance is a judgment within the meaning of article VI, sections 2 and 3]; see also Kowis v. Howard (1992)
Nor does treating judgments rendered by peremptory writs in the first instance as “second-class citizens” make sense from a policy standpoint. As real parties in interest observe, such a distinction would afford greater rights to parties who lost in the lower court (who would be guaranteed the right to oral argument on appeal) than to parties who won in the lower court (who would enjoy no such right prior to the issuance of a peremptory writ in the first instance). The majority’s only response to this rather obvious problem is its comforting assurance that a “remedy for such unfairness” is available but that it “is not uniformly to require oral argument before a peremptory writ is issued in the first instance, but rather to restrict the use of that procedure to the narrow category of cases described above.” (Maj. opn., ante, at p. 1261; see also id. at pp. 1240-1241, 1258-1259, 1260-1261 [describing the “narrow category of cases”].)
Unfortunately for real parties in interest, the “remedy” promised by the majority proves to be illusory, as the majority assiduously avoids any
The misuse of peremptory writs in the first instance is not an isolated problem. For example, despite our admonition in Ng v. Superior Court, supra, 4 Cal.4th at pages 34-35, as reiterated in Alexander v. Superior Court (1993)
Finally, there is one point on which I agree with the majority—our appellate courts are seriously overburdened. (See maj. opn., ante, at p. 1260
I share many of the concerns expressed by Justice Newman. But one key fact remains—his views did not prevail. While I am not averse to reexamining the constitutional holdings in Brigham and Moles, I would do so forthrightly, not in a manner which draws an arbitrary and senseless distinction between appeals, alternative writs and orders to show cause, on the one hand, and peremptory writs in the first instance, on the other hand.
The orderly development of the law demands that we acknowledge what we are doing, when we are doing it. “ ‘There is enough confusion in the law. We should say what we mean and mean what we say.’ ” (American Academy of Pediatrics v. Lungren (1997)
The petition of real parties in interest for a rehearing was denied March 31, 1999. Kennard, J., and Brown, J., were of the opinion that the petition should be granted.
Article VI, section 2 of the California Constitution, which governs this court, provides that “[cjoncurrence of 4 judges present at the argument is necessary for a judgment.” Similarly, article VI, section 3, which governs the Courts of Appeal, provides that “[c]oncurrence of 2 judges present at the argument is necessary for a judgment.”
California Rules of Court, rule 976(b), provides as follows: “No opinion of a Court of Appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion: [ft (1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; [ft (2) resolves or creates an apparent conflict in the law; [ft (3) involves a legal issue of continuing public interest; or [ft (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.”
In light of my conclusion that the Court of Appeal erred by issuing a peremptory writ in the first instance without affording real parties in interest their right to oral argument, I have no occasion to consider whether the Court of Appeal’s written opinion satisfies the requirements of article VI, section 14 of the California Constitution.