Brown, Winfield & Canzoneri, Inc. v. Superior Court

In Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ] (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 *1238 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…

Concurring and Dissenting. — The questions we face are whether “suggestive” or “coercive” Palma notices 1 are permissible, given the strictures of Code of Civil Procedure section 1088 and the California Rules of Court, and whether, even if so, we should countenance them in the exercise of our supervisory powers over the courts of this state. The answer to the first of these questions is “probably not”; the answer to the second, I submit, is an unqualified “no.” Accordingly, on the merits of this appeal, I respectfully dissent.

I

My colleagues and I agree on many points. For one, we agree it is critical in writ proceedings for parties to have notice and the opportunity to submit briefing to the decision maker before adverse action is taken. (See maj. opn., ante, at pp. 1248-1250.) For another, we agree that conservation of judicial resources — to the extent it can be accomplished without compromising the interests of litigants in fair hearings — is an admirable and worthy goal. What we disagree over is the extent to which suggestive Palma notices, even as modified by the additional trial court proceedings the majority proposes (maj. opn., ante, at pp. 1248-1250), satisfy these…

Cochran, Davis & Associates, Joan E. Cochran; Thompson & Alessio, Kris P. Thompson and Jeffrey K. Miyamoto for Real Party in Interest.

Jay-Allen Eisen; Dennis A. Fischer; Joseph R. Grodin; Steven L. Mayer; Robin Meadow; Robert A. Olson; Jonathan B. Steiner; Douglas R. Young; Eisenberg and Hancock and Jon B. Eisenberg for California Academy of Appellate Lawyers as Amicus Curiae on behalf of Real Party in Interest.

GEORGE, C. J.—

In Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ] ( 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…