This article originally appeared in The Recorder on December 21, 2021.
In my nearly 40 years as a writ attorney in the Court of Appeal, Second District, I found that practitioners were often confused by the various notices and orders issued by the court related to appellate writs.
The strangest is the Palma notice. Here, the strangest is the best outcome for the petitioning party – a Palma notice issues only when all three justices on the deciding panel agree that the superior court’s error is clear, the facts are not in dispute, and immediate relief is necessary. The court sets a briefing schedule but does not schedule oral argument. Instead, the Palma notice acts to inform the parties that the court will determine the issues on the briefs, alone. Over 30 years ago, the California Supreme Court in Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (1984), established that, in rare circumstances, an appellate court may grant accelerated writ relief, but must inform the parties that it is considering granting relief “in the first instance” and will not hear oral argument. The Palma opinion left open the possibility that the appellate court could reverse the superior court’s order not only without hearing oral argument, but even without any briefing. About two decades later, the Supreme Court in Brown, Winfield & Canzoneri, Inc. v. Superior Court, 47 Cal.4th 1233 (2010), emphasized that it would not act without at least minimal briefing to give the opposing side notice and the opportunity to file informal opposition.
The various appellate courts differ in whether they issue a Palma notice on court letterhead or as a formal order. Neither the letter nor the order will announce itself as a Palma notice. Instead, there will be a Palma citation somewhere in the body with the advisement that there will be no oral argument. The notice will set a briefing schedule, setting a date for serving and filing opposition and giving petitioner the option to serve and file a reply to any opposition.
The parties will have to act fast – a Palma notice or order may give the other side only a few days to serve and file its written opposition and give petitioner only a day or two to file a reply. The Palma notice or order may require personal service to eliminate undue delay. Generally, however, the requirement is for electronic or faxed service.
If the appellate court agrees with petitioner that superior court’s error is clear, the facts are undisputed, and quick action is necessary, it will issue a peremptory writ in the first instance.
In a recent case, the appellate court issued a Palma notice and then a peremptory writ in the first instance where a San Diego superior court refused to calendar a summary judgment motion that had been timely filed and served. In another matter, the appellate court issued a peremptory writ, after having issued a Palma notice, to reverse an Orange County judge’s order disqualifying petitioner’s counsel. The facts were undisputed, and the appellate court had only one legal issue to decide, the effect of framework retainer agreements; it concluded that such an agreement did not create a current attorney-client relationship between counsel and real party.
In yet another matter, the Court of Appeal reversed an Alameda County judge’s denial of a small Louisiana business’s motion to quash for lack of jurisdiction. The Court of Appeal issued a Palma notice; the opposing party filed no written opposition (although was invited to do so, twice); and the Court issued (but did not publish) an opinion granting relief. And in another case, a Los Angeles trial court granted a motion in limine to exclude the testimony of witnesses as a discovery sanction. The appellate court issued a Palma notice; no opposition was filed; and the Court of Appeal published its opinion, reversing the trial court, thus allowing the witnesses to testify at trial.
Occasionally, an appellate court may issue a Palma notice but then deny the petition without issuing an opinion. That denial after issuance of a Palma notice has the same effect as if the court of appeal had issued a summary denial at the outset: The denial after issuance of the Palma notice does not become law of the case. The summary denial is effective immediately, and the court of appeal will not entertain any request for reconsideration. The petitioner has no recourse but to seek review in the California Supreme Court, or later, as part of a full post-judgment appeal.
There is an odd twist to the Palma procedure, which is called (unfortunately) a “suggestive” Palma notice. Such a notice is not really addressed to the parties, but to the trial court. The appellate court signals the trial court that it should vacate the challenged ruling and reverse all or part of its original order. Somewhat like a tentative ruling, a “suggestive” Palma notice may give a paragraph – or several pages – of explanation of why the trial court should reverse itself. The Court of Appeal sets a date by which the trial court must inform the appellate court of its new order (if any).
If the trial court heeds the “suggestive” Palma notice, its next step will be to vacate its original order, set briefing, and schedule a date for oral argument before it. Only then can it issue a new ruling.
But the superior court is not required to follow the suggestive Palma notice’s instructions. It may do nothing. However, in my experience, I found that most superior courts follow the appellate court’s suggestion. If the trial court refuses to act, then the Court of Appeal will set its own briefing schedule and rule on the merits of the writ petition.
Generally, when the appellate court has issued a Palma notice, it has already made the initial decision that it will likely file an opinion reversing the trial court’s original order. There is a trap here for the unwary, though: Opinions issued after Palma notices may become final in less than the usual 30 days for an opinion issued after a traditional appeal. This makes sense; the justices realize that the matter is urgent – that is why they used the Palma process, cutting out oral argument and drastically shortening briefing schedules. The finality date can be as early as the date the opinion is filed. For a published case, the early finality period runs from the filing date of the publication order.
This early finality is important for a number of reasons, including for calculating the time in which to file a petition for review in the California Supreme Court.
Filing (and responding to) appellate writ petitions can be a confusing process. Wise practitioners either learn the requirements carefully or bring in an outside expert.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Sharon Baumgold is of counsel with the firm. She spent nearly four decades as a lead writ attorney in the Second District of the California Court of Appeal in Los Angeles. Find out more about Sharon and the California Appellate Law Group LLP at www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
This article is copyright © in the year of publication above.