Gilmore

Petitioner (defendant) seeks a writ of mandate directing respondent superior court to grant his motion for summary judgment. The underlying wrongful death action was brought by real party in interest (plaintiff) after defendant shot and killed her son, Ronald Schmidt. The premise of defendant’s summary judgment motion was, inter alia, that pursuant to Penal Code section 197, subdivision 4, the homicide was justifiable as a matter of law, and that in such circumstances there is no liability in tort. We agree with defendant that the superior court’s finding the homicide was justifiable under the Penal Code standard precludes tort liability. Accordingly, we shall issue the writ.

We note at the outset that plaintiff did not file pleadings or exhibits in opposition to the motion in superior court, did not appear at the hearing on the motion, did not file a preliminary opposition to the petition in this court, and, when notified pursuant to Palma v. U. S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ], that we were considering issuing a peremptory writ in the first instance, did not take advantage of our invitation to file opposition.

As…