This article originally appeared in the Daily Journal on April 24, 2017.

Contrary to occasional and misguided slander, the justices of the California Courts of Appeal and their staff attorneys take each writ petition seriously and put in whatever time and effort is required to reach a principled decision. Mindful of the burden and cost to trial courts and parties when a case is stalled pending a writ petition, the courts of appeal have come up with a tool kit of options over the years to quickly correct error and get a case back on track. 

Sometimes, the California Supreme Court needs to step in to approve or disapprove one of these tools, or to clarify its appropriate parameters. With the recent filing of People v. Superior Court (Lara), 9 Cal. App. 5th 753 (2017), Supreme Court clarification may once again be necessary.

Writ Decisions Prior to Lara

In situations where both a writ petition and a post-judgment appeal are permitted, the courts of appeal traditionally had two options to resolve writ petitions. First, they could issue an order to show cause or alternative writ, followed by oral argument and a written opinion granting or denying the petition. A ruling after such an order became law of the case, and the issue could not be raised again on appeal.

Second, they could summarily deny the petition, sometimes with explanation. A summary denial, with or without explanation, was not law of the case.

In 1984, the 2nd District Court of Appeal granted writ relief by simply issuing a peremptory writ to the trial court — no alternative writ or order to show cause, no chance for opposition from real party in interest, no oral argument, and no written opinion — but still law of the case. The Supreme Court stepped in with Palma v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171 (1984). In Palma, the court approved the 2nd District’s use of the peremptory writ in the first instance based on Code of Civil Procedure section 1088, which expressly authorized it. The court imposed some due process prerequisites, however, including notice to real party (a “Palma notice”), an opportunity for opposition and a written opinion. 

Importantly, the Supreme Court has explained the accelerated Palma opinion procedure granting a writ petition is to be used rarely — not in situations involving complex legal issues or matters of first impression, but only in cases where legal entitlement is clear and there is a need to expedite relief. Ng v. Superior Court, 4 Cal. 4th 29 (1992). 

After Palma, appellate courts used additional tools to address challenges identified in writ petitions. They issued “strongly worded” alternative writs to suggest the trial court correct its mistake on its own. They also did the same with Palma notices. If the trial court changed its order, the petition was summarily denied as moot. Again, the Supreme Court imposed procedural protections — a trial court must allow argument prior to changing an order. Brown, Winfield & Canzoneri, Inc. v. Superior Court, 47 Cal. 4th 1233 (2010). 

Critically, in any of these situations, existing law holds that the denial of a writ petition does not create law of the case unless the denial is accompanied by a written opinion following issuance of an alternative writ or order to show cause, and the opportunity for oral argument. Kowis v. Howard, 3 Cal. 4th 888 (1992). 

The New ‘Non-summary Summary Denial’

Recently, the 4th District invented a yet new tool — the “non-summary summary denial.” This matters because a non-summary summary denial creates law of the case and a decision on the merits, but from proceedings that lack all the due process protections specified by Palma and related cases. The new procedure may create confusion and costly future litigation concerning whether the right to appeal is foreclosed.

Division Three of the 4th District first introduced this new tool in Frisk v. Superior Court, 200 Cal. App. 4th 402 (2011). Just last month, Division Two of that court followed with Lara.

In Frisk¸ the court of appeal denied a writ petition in a written decision, without issuing an alternative writ or order to show cause, and without affording the parties an opportunity for oral argument. Frisk justified this expedited procedure on urgency grounds, and noted that it had issued a Palma notice — but then skipped well-settled Palma procedure andsimply filed an opinion addressing novel legal questions, the very type of questions the Supreme Court has deemed inappropriate for Palma resolution. 

Moreover, despite language in Rule 8.490 of the California Rules of Court that states denial of a petition for a writ within the court’s original jurisdiction without issuance of an alternative writ or order to show cause is final in that court when filed, Frisk still declared its seven-page decision to be law of the case and final in 30 days, and thus not a “summary denial.” No party sought review in Frisk. 

Lara addresses the merits of the trial court’s retroactive application of Proposition 57, which eliminated the prosecution’s authority to directly file criminal charges against a minor in adult court — a case of first impression, not one of clear legal error. Lara cites Frisk for authority that a decision denying a petition, filed after a Palma notice — but without an alternative writ or order to show cause and the opportunity for oral argument — is a decision on the merits that creates law of the case if the Palma notice so warns.

Lara concludes Supreme Court precedent on writ procedure “leaves room for the procedural approach” it adopts, but nowhere cites any statutory authority for this new approach (Palma, recall, relies on Code of Civil Procedure section 1088.) And although Lara cites Ng to acknowledge Palma opinions should not be routine, it ignores Ng’s express admonition the procedure should never be used when a court faces a complex or first impression issue. While Lara stressed the “urgency” of the case, urgent writ petitions are not unique, routinely handled by shortened briefing schedules, expedited oral argument, and the prompt filing of an opinion.

Why It Matters

All of this is important because of the doctrine of law of the case, and its relationship to the right to a later appeal. 

Before Frisk and Lara, a decision on a writ petition created law of the case and precluded later resolution of an issue on appeal only after issuance of an alternative writ or order to show cause followed by the opportunity for oral argument, or, as approved by the Supreme Court and authorized by the Code of Civil Procedure, in a Palma opinion granting a petition. Otherwise, decisions on writ petitions did not create law of the case, and any issue addressed in a petition could be raised again on appeal. 

But with this new “non-summary summary denial” procedure, the court of appeal has simply declared — with no statutory support — that appellate courts may create law of the case without a full opportunity to litigate the issues first. Whether the “non-summary summary denial” is a valid timesaver and new tool for the courts of appeal is a question important enough to writ practice for the California Supreme Court to clarify its contours. Hopefully, soon. 

Susan Horst is of counsel with the California Appellate Law Group LLP*, an appellate boutique based in San Francisco. She served as a writ attorney in the California Court of Appeal, First District, for 31 years. Find out more about Susan and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a bi-monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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