Some Deep Procedure

Paul Blanco’s Good Car Co. Auto Grp. v. Superior Court, No. A159623 (D1d5 Oct. 20, 2020)

This is a writ taken from civil enforcement action brought by the AG against some corporations for false advertising. There’s two clusters of issues, one that deals with trial court procedure, the other which deals with appellate procedure. Both are kind of interesting, if you are into that sort of thing....

The AG filed an unverified FAL complaint against Defendants. Under Code of Civil Procedure § 446(a), Defendants were nonetheless required to answer in a verified pleading. Defendants, however, filed an unverified general denial, citing an exception in § 446(a) for when “an admission of the truth of the complaint might subject the party to a criminal prosecution.” Because defendants were corporations without any Fifth Amendment right to remain silent, the trial court struck the answer. Defendants took a writ.

The Court of Appeal issued an order to show cause on the writ. A few weeks later, the trial court issued an order noting that the case had been reassigned to a new judge. It further set a hearing for the AG to explain why the court shouldn’t vacate the first judge’s order, given the OSC. The new judge subsequently vacated the first judge’s order and un-struck the answer.

So the gating appellate issue is, was the second judge’s order—issued after the OSC—valid? This brings to bear one of the more obscure aspects of writ practice in California—the difference between an OSC and an alternative writ. An alternative writ gives the trial court a choice between showing cause (which is actually shown by the real party) and changing its order. But an OSC “does not invite the trial court to change the ruling under review.”

Although a writ petition followed by an OSC does not deprive a trial court of jurisdiction to change its mind on interlocutory decisions, the Court here explains that it is a bad idea for a trial court to do so while an OSC is pending. The point of an OSC often is for the Court of Appeal to take briefing and reach a decision on an unresolved point of law. If the trial court’s reverses course while an OSC is pending, that raises mootness issues. And indeed, if the Court of Appeal’s first priority is to merely compel the trial court to change its mind, it has the alternative writ in its quiver to do so.

The court next addresses whether the new judge had the authority to reverse the first judge’s order. (Didn’t this just come up?) A trial court may, of course, revisit interim orders. But the authority to do so generally rests with the judge that made the order in the first instance. So appellate courts have developed the rule that a reassigned trial judge can’t revisit a prior judge’s order unless the first judge is no longer available. That’s not the case when a matter is merely reassigned. (The first judge here is still on the court—he didn’t die or retire.) So, the Court of Appeal finds that the second judge lacked authority to revisit the first judge’s order.

And since the revisited order was invalid, the Court of Appeal can reach the merits of the trial court procedure issue raised by the writ. (Which it seems like it really wants to do, FWIW). 

So far as § 446 goes, the question is whether the exception in § 446 for admissions that might lead to criminal liability applies to a corporate entity that does not have a right to remain silent. Although the AG draws the equation, the statute does not itself actually reference the Fifth Amendment or any of its state law equivalents. Nor is there any doubt that a corporation can be subject to criminal liability. So Court of Appeal goes with the plain language of § 446, which permits a corporate defendant to decline to verify its answer when doing so might subject it to criminal liability. That is backed up by the case law and legislative history.

Finally, there’s the issue of whether the defendant could file a general denial. Section 431.30 says you can’t make a general denial to a verified complaint. But the complaint here was not verified, even if a verified answer is required unless the exception in § 446 applies. As the court explains, § 446 gave the AG the option of verifying the complaint. But it did not elect to do so. And given that option, it does not make sense to treat any AG complaint automatically like it has been verified, such that a general denial cannot be made to an unverified AG complaint.

Writ granted.

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.