Palma

We are called upon to consider the circumstances and procedure appropriate to the issuance, by an appellate court, of a peremptory writ of mandate in the “first instance,” i.e., without prior issuance of an alternative writ.

Plaintiff in this negligence action appeals from a summary judgment for defendants which the trial court entered in obedience to such a peremptory writ from the Court of Appeal. The petition which defendants filed in the Court of Appeal did not seek a peremptory writ in the first instance, and the court did not notify plaintiff that such relief was being considered. The record does not reflect an invitation by the court to respondent or real party in interest to file opposition, and none was filed. Finally, instead of an order for the writ, the appellate court issued a document purporting to constitute the writ itself.

Plaintiff questions the propriety of the summary judgment, contending that there are triable issues of material fact, but the preliminary question we must decide is whether he is precluded from raising that question now, by reason of his failure to seek review of the appellate court’s prior action. *176 Defendants argue that when…