Call it a Lara Notice

People v. Superior Court (Lara), No. E067296 (D4d2 on rehearing, Mar. 13, 2017)

This is a  criminal writ dealing with a change in the law of whether juveniles can be tried as adults, which has apparently caused some disarray in the trial courts. I don’t cover juvenile justice. But on rehearing, there’s an interesting question of writ procedure that was raised on rehearing, because there a bunch of similar writs pending. When does a denied writ become law of the case?

Writ review in the Court of Appeal is basically a two-step process. First, the court has to decide whether to take up the writ. The vast majority of the time it doesn’t do that and the petitioner gets a summary denial without an opinion. It’s well-established California law that a summary denial isn’t a “cause” as that term is used in the state constitution. Which means that it requires no written opinion and (collaterally) has neither preclusive effect nor creates law of the case.

To take up the merits writ, it can do one of three things: Normally it will issue an order to show cause or an alternative writ. These orders start a formal briefing process, which leads to a decision on the merits. Whether a grant or denial, that decision does constitute a “cause”—it requires a written opinion and creates law of the case.

In narrow circumstances, the court can forego the full briefing process and issue what’s called a Palma notice. See Palma v. U.S. Indus. Fasteners, Inc., 36 Cal. 3d 171 (1984). A Palma notice generally informs the parties that the Court of Appeal thinks the petition presents an issue (often a principally legal one) where the court is inclined to grant on a peremptory basis. To satisfy the respondent’s due process rights, the respondent is permitted to file an informal response, and if that doesn’t convince the court the writ issues. Like a writ issued after the more formal OSC/alternative writ process, a peremptory writ issued after a Palma notice is also a “cause.” It requires a written opinion that creates law of the case.  

This case, however, has an unusual fact pattern. The juvenile charging issue was piling up in multiple writs and the failure to quickly resolve it leading to some disarray in the trial courts. So here, the court took the unusual step of issuing a Palma notice that said it was included to take up the writ and deny it on the merits. Which it did. 

And now on a sua sponte motion for rehearing, the Court explains that a writ denied on the merits after a Palma notice is also a cause that creates law of the case. That might seem obvious, but there are some older cases that suggest there’s no cause until an alternative writ issues. These cases, however, are inconsistent with Palma’s concept of a peremptory writ that counts as a cause. There’s also some general language in other cases that suggests peremptory denial on the merits procedure employed by the court is not even an option in California writ practice. But none of these cases are on all fours.

At the end of the day, the distinction between a summary denial and a merits denial after a Palma notice comes down to an issue of jurisdiction. A summary denial is a declination to exercise jurisdiction over the merits of the matter. That’s not what we have here, since the court took jurisdiction and issued an opinion on the merits. So the court’s merits opinion does, in fact, constitute law of the case.

Writ denied.