Review Granted Regarding “Suggestive” Palma Notice

A hat tip to Ben Shatz for promptly alerting me last week that the Supreme Court granted review in Brown, Winfield & Canzioneri, Inc. v, Superior Court (Great American Insurance Co.), case no. S156598. I haven’t posted until now because I’ve been mulling over the implications of the case — and I’ve been otherwise swamped.

Review was granted on an interesting issue regarding writ practice — an area that is mysterious enough for many litigators even without the extra twist thrown in by the Court of Appeal in this case. This is a tough one to follow, as the Court of Appeal did not issue a decision. So, there’s nothing on Westlaw. What happened must be gleaned from the Court of Appeal docket and Supreme Court docket.

If you are not familiar with writ procedure, you may want to check out this article at LACBA’s site before reading any firther.

What the Court of Appeal did in Brown — at least, as far as I can make out from the dockets — resulted in a weird disposition of the case that did not follow any of the usual “tracks” in a writ proceeding. The Court of Appeal issued a Palma notice indicating its intent to issue a peremptory writ in the first instance, but the notice apparently was “suggestive” to the respondent court (in the manner set out in the Supreme Court’s review order, reproduced in part below) and gave the trial court the “power and jurisdiction” to change its order. Apparently as a result, on the very next day after the Palma notice issued — before the real party in interest could file an opposition — the superior court vacated its prior order.

The Supreme Court designated the following issues for briefing and argument:

(1) May a Court of Appeal issue a “suggestive Palma notice” (see Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171) – that is, a notice that discusses the merits of a writ petition with citation to authority, determines that the trial court ruling was “erroneous,” and gives the trial court the “power and jurisdiction” to change its order?

(2) If such an order is proper, absent exceptional circumstances, may it be issued without giving the real party in interest an opportunity to file opposition?

The biggest issue here seems to be the suggestiveness of the Palma notice, since the Court of Appeal usually doesn’t write in depth on the merits until it has considered an opposition. Any Palma notice implies that the Court of Appeal has made at least a preliminary determination that the trial court ruling was incorrect, and real parties are always at risk that the trial court will vacate its ruling, but it’s the extra “push” given by the Court of Appeal in this case that seems to have caught the attention of the Supreme Court.