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.

Lis This!

Rey Sanchez Investments v. Superior Court, No. E063757 (D4d2 Jan. 26, 2016).

If you are going to put a lis pendens on somebody’s property, you had better comply with the statutory service requirements under Code of Civil Procedure § 405.22, including service on everyone with an interest in the property and everyone in the action. And then you need to provide a proof of service. Under § 405.23, a lis pendens is “void and invalid” and subject to expungement if the service rules are not followed. Plaintiff didn’t follow the service rules in this case—no proof of service—which merits a peremptory writ requiring the trial court to expunge the lis pendens.

Writ granted.

I Want My Two Dollars . . . .

Hyundai Motor of Am. v. Superior Court, No. G051279 (D4d3 Mar. 20, 2015)

The is a Song-Beverly warranty case where the Hyundai made a full value plus attorneys’ fees offer under Code of Civil Procedure § 998 for the entire value of a car plaintiff claimed was a lemon. Plaintiff took the offer. The trial court awarded him $42k in attorneys’ fees. Plaintiff also demanded post-judgment interest on the fee award, running from the acceptance of the § 998 offer. The court declined. After all, judgment hadn’t been entered yet.

Hyundai paid off the entire fee amount—with judgment still not yet entered—but Plaintiff claimed the payout was $462.50 short for interest between the fee award hearing and the payoff. Plaintiff’s counsel then began judgment enforcement proceedings for his four hundred bucks, including noticing a judgment debtor exam of the CEO of Hyundai’s US sub. Plaintiff also filed a number of cost memos demanding ever-increasing cost awards.

Hyundai challenged the cost memos with the trial court. It determined that, notwithstanding the fact that judgment had not been entered until shortly before the hearing, its fee award was, in effect, an enforceable judgment that accumulated 10 percent post-judgment interest from the date of the order.  Hyundai took a writ.

This isn’t too hard. Post-judgment interest accrues from the entry of final judgment.  No judgment, no post-judgment interest. That includes cases where § 998 offers are accepted and judgment isn’t entered till later. And it also includes pre-judgment fee awards that are later subsumed into a final judgment. 

Writ granted.

The court of appeal goes on to explain that a peremptory writ—a writ granted without following the formal order to show cause process—is appropriate in this case. The court issued a Palma notice—a warning that it was considering entering a peremptory writ so the respondent better chime in right away. Upon reviewing plaintiff’s Palma response, it decided Hyundai’s right to relief was clear. Moreover, the court took particular notice of plaintiff’s counsel’s unprofessional move of noticing an apex judgment debtor exam of Hyundai America’s CEO to collect on a bogus $462.50 debt. The court felt like that kind of ridiculous litigation tactic required it to step in on an emergency basis.

The Discovery Act Is Not a Suicide Pact.

Certainteed Corp. v. Superior Court, No. B253308 (D2d3 Jan 8, 2014)

In a case that spanned barely two weeks from writ petition to writ granted, the court of appeal grants a peremptory writ ruling that the trial court has the discretion to permit a terminally ill plaintiff’s deposition to extend beyond the newly-imposed fourteen hour limit in Code of Civil Procedure § 2025.290(b)(3).