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Significant appellate practice decision: Brown, Winfield & Cazonieri, Inc. v. Superior Court

By Kimberly A. Kralowec

In Brown, Winfield & Cazonieri, Inc. v. Superior Court (Great Am. Ins. Co.), ___ Cal.4th ___ (Feb. 1, 2010), the Supreme Court elaborated on what appellate practitioners refer to as Palma notices.  This is the introduction to the majority opinion by Chief Justice George:

In Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma), we outlined the rare circumstances in which an appellate court may grant accelerated writ relief in the form of a peremptory writ in the first instance, in lieu of following the usual procedures associated with the issuance of an alternative writ or an order to show cause. We held that, at a minimum, a peremptory writ of mandate or prohibition may not issue in the first instance without notice that the issuance of such a writ in the first instance is being sought or considered. (Palma, supra, 36 Cal.3d at p. 180.) In addition, we emphasized that ?an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected.? (Ibid.) Pursuant to Palma, our Courts of Appeal ? prior to ordering issuance of a peremptory writ in the first instance ? provide notice that such a writ may issue, and invite informal opposition, in orders routinely called ?Palma notices.?

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

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

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

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

Slip op. at 1-3.  Justice Werdegar drafted a concurring and dissenting opinion, in which justices Moreno and Corrigan joined.

Full post as published by The UCL Practitioner on February 03, 2010 (boomark / email).