Supreme Court of California Justia
Citation 47 Cal. 4th 1233, 223 P.3d 15, 104 Cal. Rptr. 3d 145
Brown, Winfield etc. v. Super. Ct.

Filed 2/1/10

IN THE SUPREME COURT OF CALIFORNIA

BROWN, WINFIELD &
CANZONERI, INC.,
Petitioner,
S156598
v.
Ct.App. 2/3 B201396
THE SUPERIOR COURT
OF LOS ANGELES,
Los Angeles County
Super. Ct. No. BC331301
Respondent;
GREAT AMERICAN INSURANCE
COMPANY,
Real Party in Interest.

In Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171 (Palma),
we outlined the rare circumstances in which an appellate court may grant
accelerated writ relief in the form of a peremptory writ in the first instance, in lieu
of following the usual procedures associated with the issuance of an alternative
writ or an order to show cause. We held that, at a minimum, a peremptory writ of
mandate or prohibition may not issue in the first instance without notice that the
issuance of such a writ in the first instance is being sought or considered. (Palma,
supra, 36 Cal.3d at p. 180.) In addition, we emphasized that “an appellate court,
absent exceptional circumstances, should not issue a peremptory writ in the first
instance without having received, or solicited, opposition from the party or parties
adversely affected.” (Ibid.) Pursuant to Palma, our Courts of Appeal — prior to
1


ordering issuance of a peremptory writ in the first instance — provide notice that
such a writ may issue, and invite informal opposition, in orders routinely called
Palma notices.”
At issue in the present case is the propriety of so-called “suggestive” Palma
notices. A suggestive Palma notice — sometimes denominated a “coercive” or
“speaking” Palma notice — typically contains the following: notice that the Court
of Appeal intends to issue a peremptory writ in the first instance granting the relief
requested by the petitioner; a discussion of the merits of the writ petition, with a
suggestion that the trial court erred in the manner claimed by the petitioner; a
specific grant to the trial court of “power and jurisdiction” to change the disputed
interim order and enter in its place a new order consistent with the views of the
appellate court, in which event the writ petition will be vacated as moot; and a
solicitation of opposition to the issuance of a peremptory writ in the first instance,
should the trial court elect not to follow the appellate court‟s recommendation.
As discussed below, we conclude that it is not improper for an appellate
court to issue a suggestive Palma notice, and that it may do so without first having
received or solicited opposition from the real party in interest. A suggestive
Palma notice is not the equivalent of a peremptory writ, which requires both
notice and an opportunity for opposition before the writ may issue in the first
instance. Although a suggestive Palma notice may be styled as an order, such a
notice in no way commands or otherwise obligates the lower court to follow the
course of action suggested by the appellate court. Rather, a suggestive Palma
notice is analogous to a tentative ruling, in that it sets forth the appellate court‟s
preliminary conclusions with respect to the merits of the writ petition —
conclusions that, similar to those reflected in a tentative ruling, are not binding
upon either the trial court or the appellate court.
2
It appears, however, that upon receiving a suggestive Palma notice from an
appellate court, a trial court often will quickly vacate, modify, or otherwise
reconsider the challenged ruling in order to conform its action to the views
expressed in the notice — all before the party adversely affected has filed (or has
had an opportunity to file) any opposing papers in response to the Palma notice.
When the trial court takes such action, the Court of Appeal will dismiss the writ
petition.
We conclude that if a trial court decides on its own motion to revisit its
interim ruling in response to a suggestive Palma notice — an action within its
inherent authority (see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109
(Le Francois)) — that court must inform the parties of its intent to do so, and
provide them with an opportunity to be heard. (See id. at pp. 1108-1109.)
Requiring adherence to this procedure is consistent with our relevant case law, and
reasonably balances the interests of conservation of scarce judicial resources with
the parties‟ right to notice and an opportunity to be heard.
I.
The writ proceeding in the case now before us arises from an action for
declaratory relief brought by Great American Insurance Company (GAIC) against
its insured, Brown, Winfield & Canzoneri, Inc. (Brown), to resolve an insurance
coverage dispute. Initially, the trial court stayed the declaratory relief action,
pending resolution of litigation involving claims for which Brown sought
coverage, but in July 2007, while the underlying litigation still was pending, that
court lifted the stay in the declaratory relief action and set a trial date.
On August 17, 2007, in response to the foregoing action taken by the trial
court, Brown filed with the Court of Appeal, Second Appellate District, a “Petition
for Writ of Mandate, Prohibition, or Other Appropriate Relief,” requesting an
immediate stay of all declaratory relief proceedings, and further requesting an
3
order requiring the trial court to vacate the trial date and stay all proceedings until
after conclusion of the underlying litigation. On August 28, 2007, the Court of
Appeal issued an “order” comprising the suggestive Palma notice at issue in the
present proceedings.
At the outset, the three-page suggestive Palma notice stated that “it appears
the trial court erred in lifting the stay [of the declaratory relief action] prior to the
determination of the underlying action.” The notice then discussed both the
factual and the legal merits of the writ petition, concluding that Brown‟s
“entitlement to relief is so obvious that no purpose could reasonably be served by
plenary consideration of the issue . . . . [Citations.]” Based upon this conclusion,
and citing Palma, supra, 36 Cal.3d 171, the challenged notice advised the trial
court and the parties of the Court of Appeal‟s “present intention to issue a
peremptory writ of mandate in the first instance” directing the trial court to vacate
its July 3, 2007, order and enter an order reinstating the stay pending resolution of
the underlying case. The notice then conferred upon the respondent trial court
“the power and jurisdiction to change and correct its erroneous order, and to enter
in its place a new order in accord with the views expressed herein.” The notice
stated that in the event the trial court were to take the latter action, the writ petition
would be dismissed. Finally, the notice provided a schedule for briefing to be
followed if the trial court “fail[ed] to comply with the directive set forth herein.”
On August 29, 2007, one day after the Court of Appeal filed its Palma
notice, the trial court issued an order that acknowledged the Court of Appeal‟s
suggestive Palma notice, vacated the trial court‟s July 3, 2007, order, and
reinstated the stay of the declaratory relief action pending resolution of the
underlying case. Upon receiving a copy of the trial court‟s order reinstating the
stay, the Court of Appeal dismissed the writ petition.
4
We thereafter granted GAIC‟s petition for review of the appellate court‟s
August 28 order, limiting our review to the following issues: (1) whether an
appellate court properly may issue a suggestive Palma notice and, if so, (2)
whether, absent exceptional circumstances, such a notice may be issued without
the appellate court‟s having received or solicited opposition from the real party in
interest.1
II.
The California Constitution grants the courts original jurisdiction in
proceedings seeking extraordinary relief in the form of writs of mandamus,
prohibition, and certiorari. (Cal. Const., art. VI, § 10.) The Code of Civil
Procedure and the California Rules of Court2 set forth the procedures governing a
court‟s exercise of its power and discretion to issue a writ. (See generally § 1084
et seq.; rule 8.485 et seq.)
When a petition is filed seeking a writ commanding the respondent superior
court to act in a certain manner, such as by vacating or revising an interim order,

1
As noted, Brown‟s writ petition was dismissed by the Court of Appeal as
moot when the trial court acted in accordance with the suggestive Palma notice
here at issue. The parties‟ briefs subsequently informed the court that the issue
giving rise to the writ proceedings — whether GAIC‟s declaratory relief action
should have been stayed during the pendency of the underlying litigation
concerning claims for which Brown sought coverage — became moot when that
litigation settled. The present case nonetheless presents “important question[s]
affecting the public interest” that are “ „ “ „capable of repetition yet likely to evade
review.‟ ” ‟ Accordingly, our resolution of the case at this juncture is
appropriate.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20
Cal.4th 1178, 1190 fn. 6; see also Peterson v. City of San Diego (1983) 34 Cal. 3d
225, 227 [appellate courts have discretion to consider a case that is technically
moot, when the issues are of continuing public importance].)
2
Unless otherwise noted, all further statutory references are to the Code of
Civil Procedure, and all further references to rules are to the California Rules of
Court.
5


an appellate court may (1) summarily deny the petition,3 (2) issue an alternative
writ or an order to show cause pursuant to section 1087, or (3) issue a peremptory
writ in the first instance, pursuant to section 1088 and the procedure set forth in
Palma, supra, 36 Cal.3d 710. (See Lewis v. Superior Court (1999) 19 Cal.4th
1232, 1239-1240 (Lewis).) The scenario that gives rise to the issues in the present
case involves the issuance of a peremptory writ of mandate in the first instance.
This accelerated procedure dispenses with the issuance of an alternative writ, and
with the requirement that the Court of Appeal afford an opportunity for formal
briefing and oral argument before ordering that a peremptory writ issue. (See Cal.
Civil Writ Practice (Cont.Ed.Bar 4th ed. 2009) § 22.18, p. 601 (Civil Writ
Practice) [a Palma notice “informally describes the first step in the streamlined
procedure for deciding the merits of a writ petition that avoids the more formal
procedures triggered by the issuance of an alternative writ”].)
In Palma, supra, 36 Cal.3d 171, we considered the circumstances and
procedures appropriate to an appellate court‟s issuance of a peremptory writ in the
first instance. Based upon section 1088‟s “due notice” requirement,4 which “was
intended to place the respondent and real party in interest on notice, in the absence
of an alternative writ, that a peremptory writ might issue” (Palma, supra, 36 Cal.
3d at p. 179), we held that a peremptory writ of mandate or prohibition may not
issue in the first instance unless, at a minimum, “the parties adversely affected by

3
The most recent statistics available indicate that approximately 94 percent
of the petitions seeking writ relief in the Courts of Appeal are denied summarily.
(See Judicial Council of Cal., Court Statistics Rep. (2009) p. ix
<http://www.courtinfo.ca.gov/reference/documents/csr2009.pdf> [as of Feb. 1,
2010].)
4
Section 1088 provides, in relevant part, that “[w]hen the application to the
court is made without notice to the adverse party, and the writ is allowed, the
alternative must be first issued; but if the application is upon due notice and the
writ is allowed, the peremptory may be issued in the first instance.”
6


the writ have received notice . . . that the issuance of such a writ in the first
instance is being sought or considered.” (Palma, supra, 36 Cal.3d at p. 180.) We
further concluded that, absent exceptional circumstances, an appellate court
“should not issue a peremptory writ in the first instance without having received,
or solicited, opposition from the party or parties adversely affected.” (Ibid.)
Finally, we cautioned that a peremptory writ in the first instance should not issue
unless “it appears that the petition and opposing papers on file adequately address
the issues raised by the petition, that no factual dispute exists, and that the
additional briefing that would follow issuance of an alternative writ is unnecessary
to disposition of the petition.” (Id. at p. 178.)
This court observed in Palma that these procedural safeguards — providing
notice and requesting informal opposition prior to the issuance of a peremptory
writ — serve a number of important purposes. For example, the notice
requirement places the respondent and any real party in interest on notice, in the
absence of an alternative writ, that a peremptory writ might issue. (Palma, supra,
36 Cal.3d at p. 179.) Additionally, “[b]y eliminating the necessity for full scale
response where such a response is unnecessary, such a practice helps to reduce the
cost of litigation to the parties; and by encouraging opposition when the court is
about to act affirmatively on a petition, it helps to conserve judicial resources as
well. In the case of a peremptory writ in the first instance, such a practice helps
also to assure that the respondent, or real party, has had full opportunity to oppose
what may turn out to be the final, and to his interests adverse, resolution of a legal
issue.” (Id. at p. 180.)
Subsequently, in Ng v. Superior Court (1992) 4 Cal.4th 29 (Ng), we
emphasized that the issuance of a peremptory writ in the first instance is a
procedural “rarity,” and we cautioned that this “exception” to the normal writ
procedure “should not become routine.” (Id. at p. 35.) Generally, the accelerated
7
Palma procedure “should be adopted only when petitioner‟s entitlement to relief is
so obvious that no purpose could reasonably be served by plenary consideration of
the issue — for example, when such entitlement is conceded or when there has
been clear error under well-settled principles of law and undisputed facts — or
when there is an unusual urgency requiring acceleration of the normal process. If
there is no compelling temporal urgency, and if the law and facts mandating the
relief sought are not entirely clear, the normal writ procedure, including issuance
of an alternative writ [citation,] should be followed.” (Ng, supra, 4 Cal. 4th at
p. 35; see, e.g., Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223 [the
Court of Appeal erred in considering writ application under expedited procedures
authorized in section 1088 instead of under alternative writ procedure of section
1087, because nothing in the record suggested “ „unusual urgency‟ ” justifying
expedited resolution].)
Of course, even in the limited circumstances in which issuance of a
peremptory writ in the first instance is appropriate, such a writ may not issue
unless the appellate court first satisfies the strictures outlined in Palma, supra, 36
Cal.3d at page 180. (Compare Kernes v. Superior Court (2000) 77 Cal.App.4th
525, 530 [the appellate division of the superior court erred in ordering issuance of
a peremptory writ in the first instance when the petition did not expressly notify
the respondent that such relief was being sought, the court failed to request
opposition from the respondent, and no unusual exigency justified that failure],
with Payless Drug Store v. Superior Court (1993) 20 Cal.App.4th 277, 279 [after
giving notice that it was considering issuing peremptory writ in first instance, then
requesting and receiving informal replies from real parties in interest, appellate
court ordered issuance of writ on grounds that exceptional circumstances existed
and further proceedings would add nothing to its review, because petitioner‟s
entitlement to relief was obvious].)
8
Finally, in Lewis, supra, 19 Cal.4th 1232, this court recognized that an
appellate court may order issuance of a peremptory writ of mandate or prohibition
in the first instance without affording the parties an opportunity for oral argument
(id. at 1237), but we also reaffirmed the importance of the procedural safeguards
outlined in Palma, noting that “the Court of Appeal generally should afford the
respondent and/or real party in interest the opportunity to present written
opposition . . . .” (Lewis, supra, 19 Cal. 4th at p. 1241.) We again emphasized
that the accelerated process for issuing a peremptory writ in the first instance is
“reserved for truly exceptional cases — primarily those in which a compelling
temporal urgency requires an immediate decision. Denying plenary consideration
where the petitioner‟s entitlement to relief is „obvious‟ and „entirely clear‟ under
„well-settled principles of law and undisputed facts‟ [citation], is permitted only in
extremely narrow circumstances. Application of established law to undisputed
facts must leave no room for doubt regarding the proper result. „Well-settled
principles of law‟ must be set forth in controlling authority that squarely applies to
the circumstances of the case before the court. If the respondent or real party in
interest presents any reasonable argument that the applicable law is unsettled or
does not govern the precise issue presented in light of the particular undisputed
facts, or if the application of legal principles set forth in various sources of law
might lead to different results, and there is no compelling need for an expedited
decision, the court must follow the usual writ procedure and issue an alternative
writ or order to show cause.” (Id. at p. 1261.)
In accordance with Palma, supra, 36 Cal.3d 171, our Courts of Appeal
typically advise the parties in writ proceedings that issuance of a peremptory writ
in the first instance is under consideration, by filing an order requesting informal
opposition to the writ petition by a specified date. (See, e.g., Ct. App., 4th Dist.,
Div. One, Internal Operating Practices & Proc., V. Original Proceedings.) The
9
usual Palma notice directed to the parties in the writ proceeding may read, for
example: “The petition for writ of mandate or prohibition filed herein [on date],
has been read and considered. [¶] The parties are notified that the court may issue
an order for peremptory writ in the first instance requiring the respondent to [grant
the relief sought]. (Palma v. U.S. Indus. Fasteners, Inc. (1984) 36 C[al.]3d 171,
180.) The real party in interest is requested to file and serve opposition on or
before [date].” (Civil Writ Practice, supra, § 28.7, p. 745.) Because a peremptory
writ may issue without further briefing and without oral argument, the response of
the respondent (or any real party in interest) to the Palma notice may provide such
a party with its sole opportunity to be heard in the Court of Appeal on the merits
of the writ petition.
III.
The issue presently before us is the propriety of the suggestive type of
Palma notice. This type of notice clearly complies with the minimum procedural
safeguards outlined in Palma, supra, 36 Cal.3d 171, in that it provides notice that
the Court of Appeal is considering ordering the issuance of a peremptory writ in
the first instance, and furnishes an opportunity for the respondent or any real party
in interest to oppose issuance of the writ. The problem that occurs, according to
GAIC and amicus curiae, is that the suggestive Palma notice does not stop
there — it also discusses the merits of the writ petition, suggests that the trial court
erred in the manner claimed by the petitioner, grants “power and jurisdiction” to
the trial court to reconsider the challenged interim order and enter in its place a
new order in accordance with the views of the appellate court5 (in which event the

5
This particular language — granting “power and jurisdiction” to the trial
court to reconsider the challenged order — appears to be intended to ensure that
the lower court will act to change its ruling in accordance with the suggestive
Palma notice, despite the appellate court‟s stay of all proceedings subject to the
notice. In somewhat more explicit language, such a notice might alternatively
(Footnote continued on next page.)
10


writ petition will be vacated as moot), and solicits opposition to the issuance of a
peremptory writ in the first instance only if the trial court fails to follow the
appellate court‟s suggested course of action. (See, e.g., Civil Writ Practice, supra,
§ 28.9, pp. 747-748.)
As Brown accurately observes, however, our decisions in Palma and
subsequent cases do not prescribe any particular form for the notice informing the
parties that the Court of Appeal may issue a peremptory writ in the first instance
and providing an opportunity for informal opposition. Moreover, these decisions
do not prohibit, explicitly or implicitly, an appellate court from addressing the
merits of the writ petition in the Palma notice, or from explaining the reasons why
that court is considering ordering the issuance of a peremptory writ in the first
instance. GAIC and amicus curiae respond that, by issuing a suggestive Palma
notice “strongly encouraging” the trial court to take action in accordance with the
relief requested in the writ petition, the Court of Appeal in essence has decided the
merits of the writ petition and effectively has issued the peremptory writ in the
first instance before the real party in interest has had a meaningful opportunity to
respond.
We are not persuaded that the issuance of a suggestive Palma notice is the
effective equivalent of issuing a peremptory writ in the first instance. A
peremptory writ of mandate issued by an appellate court and directed at an inferior
tribunal is the reviewing court‟s ultimate order commanding the respondent court
to grant the relief requested. Such a writ issues only after the written decision
granting the writ petition (and directing that the writ be issued) becomes final,

(Footnote continued from previous page.)
provide that the stay of proceedings is modified to permit the respondent court to
change its order so as to avoid issuance of a peremptory writ. (Civil Writ Practice,
supra, § 28.9, p. 748.)
11


both as to the Court of Appeal and the Supreme Court. Thereafter, the appellate
court is authorized to make any orders necessary and proper for the complete
enforcement of the writ, and the unexcused neglect or refusal to “obey” a writ
may, upon motion, be the subject of a fine and, in the case of persistent refusal,
imprisonment, until the writ is obeyed. (§ 1097.)
By comparison, even if styled as an “order,” a suggestive Palma notice in
no sense commands or obligates the trial court to follow the course of action
suggested by the appellate court. Rather, in the absence of a peremptory writ, the
trial court remains free to stay its course. (Cf. Ng, supra, 4 Cal.4th at p. 34
[superior court erred in acting immediately upon the Court of Appeal‟s opinion
ordering issuance of a peremptory writ in the first instance, rather than awaiting
issuance of the writ itself, thus necessitating the Supreme Court‟s emergency
action].) A suggestive Palma notice acknowledges as much, when it sets a
briefing schedule for opposition and reply papers in the event the trial court elects
not to act in accordance with the notice.
A suggestive Palma notice is more analogous to a tentative ruling, such as
may be issued by a civil law and motion department of a superior court prior to
oral argument on a motion. (See, e.g., Super. Ct. Riverside County, Local Rules,
rule 2.0016; Super. Ct. Sac. County, Local Rules, rule 3.04; Super. Ct. S.F.
County, Local Rules, rule 3.5(D).)6 Tentative rulings “indicate the way the judge
is prepared to decide the matter based on the information before him or her when
the ruling was prepared.” (Weil & Brown, California Practice Guide: Civil

6
Similarly, for many years, Division Two of the Fourth District Court of
Appeal has utilized a “tentative opinion” procedure by which a preliminary draft
opinion is provided to counsel prior to oral argument. (See People v. Pena (2004)
32 Cal.4th 389, 394-397; Ct. App., 4th Dist., Div. Two, Internal Operating
Practices & Proc., VIII. Tentative Opinions and Oral Argument.)
12


Procedure Before Trial (The Rutter Group 2009) § 9:111 (rev. #1 2007).) Such a
tentative ruling, however, becomes the final ruling of the trial court (1) only if the
court does not order oral argument in its tentative ruling, and notice of intent to
appear is not given by one of the parties, or (2) only after the hearing on the
motion is conducted, assuming the court does not then render a different ruling.
(Rule 3.1308; see also Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th
624, 633 [“Courts are not bound by their tentative rulings.”].) Similarly, a
suggestive Palma notice indicates the manner in which the Court of Appeal is
prepared to decide the merits of the writ petition, based upon what was before it
when the notice was prepared, but such a notice is not binding upon either the trial
court or the appellate court. (See, e.g., Foundation for Taxpayer & Consumer
Rights v. Garamendi (2005) 132 Cal.App.4th 1374, 1383 [referring to “tentative
conclusions” expressed in suggestive Palma notice] (Garamendi).) Rather, the
conclusions expressed in a suggestive Palma notice remain provisional unless and
until they are incorporated into a written decision granting the writ petition and
directing that a peremptory writ be issued.
Issuance of a tentative ruling allows both sides the opportunity to
reevaluate their respective positions in light of the preliminary views expressed by
the issuing court on the matter, and to either submit to the tentative ruling, thereby
negating the need for oral argument, or to focus their arguments at the subsequent
hearing. We presume the transparency provided by a suggestive Palma notice is
similarly useful. Knowing in advance the reasoning behind the Court of Appeal‟s
present intention to issue a peremptory writ in the first instance should assist the
real party in interest in deciding whether to accede to the requested relief and, in
the event that party is not inclined to do so, should assist it in tailoring any future
opposition. (See, e.g., Garamendi, supra, 132 Cal.App.4th at pp. 1382-1383
13
[although plaintiffs disagreed with tentative conclusions expressed in suggestive
Palma notice, they stipulated to the relief sought by writ petition].)
Another practical effect of a suggestive Palma notice is that it preserves the
options available to the appellate court. Because that court has issued a Palma
notice rather than an alternative writ or an order to show cause, the writ
proceeding has not become a “ „cause.‟ ” (See Palma, supra, 36 Cal.3d at p. 178
& fns. 5-6.) Therefore, if the trial court declines to reverse or modify the disputed
interim order as suggested in the notice issued by the appellate court, the latter
court still may issue a summary denial after receipt of informal opposition. (Id. at
p. 178.) Alternatively, because the appellate court has complied with Palma by
providing the requisite notice and soliciting opposition, it may order issuance of a
peremptory writ without inviting further briefing or holding oral argument.
(Lewis, supra, 19 Cal.4th at p. 1237.) Or it may issue an alternative writ, request
formal briefing, and hold oral argument before disposing of the petition by way of
a written opinion. Finally, the suggestive Palma notice may relieve the appellate
court of the need to exercise any of these options, thus avoiding further
expenditure of the court‟s scarce resources. Because the notice specifically
identifies the error perceived in the trial court‟s interim order and strongly
suggests that the trial court act in accordance with the appellate court‟s views, it is
more likely that the trial court will so act than had the appellate court simply
issued a traditional alternative writ or Palma notice.7

7
For example, in the present case, the day after the Court of Appeal issued
the suggestive Palma notice, the trial court vacated the disputed interim order and
entered in its place a new order in accord with the views expressed in the notice,
after which the writ petition was summarily dismissed as moot. (See also Luckett
v. Keylee
(2007) 147 Cal.App.4th 919, 923 (Luckett); Karlsson v. Ford Motor Co.
(2006) 140 Cal.App.4th 1202, 1212-1213; Travelers Casualty & Surety Co. v.
Superior Court
(2005) 126 Cal.App.4th 1131, 1136-1137; Los Angeles County
(Footnote continued on next page.)
14


The suggestive Palma notice remains, however, merely a
recommendation — albeit a strongly worded one — that the trial court reconsider
the order challenged by the writ petition in light of the circumstance that the Court
of Appeal tentatively has concluded the trial court erred in some respect. (See,
e.g., Luckett, supra, 147 Cal.App.4th at p. 923 [in response to suggestive Palma
notice, “trial court reconsidered whether [plaintiff] should post a vexatious
litigant‟s bond”].) In support of its recommendation, an appellate court may, for
example, discuss the merits of the writ petition, note that the writ proceeding will
become moot if the trial court enters a new order that affords the relief sought in
the writ petition, instruct the parties to inform the appellate court if the trial court
changes its order, and provide that any stay issued by the appellate court does not
preclude the trial court from reconsidering its order in the manner suggested by the
appellate court‟s discussion of the merits. The suggestive Palma notice may not,
however, direct the trial court to change its order, or purport to grant the trial court
authority to change its order without first affording the parties notice and an
opportunity to be heard in the trial court. For this reason, and to avoid any ensuing
confusion, the Court of Appeal should refrain from describing its suggestive
Palma notice as a “directive,” or otherwise suggesting that the trial court must
“comply” with the notice. In addition, the suggestive Palma notice should
acknowledge the procedural safeguards required in the event the trial court does
revisit an interim ruling in response to such a notice, as further discussed below.8

(Footnote continued from previous page.)
Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 1161,
1164-1165.)
8
What we recognize today with approval is simply a Palma notice that both
reveals the reasons why the appellate court is considering the issuance of a
peremptory writ in the first instance, and acknowledges the obvious circumstance
that the writ petition will become moot if the trial court vacates the challenged
(Footnote continued on next page.)
15


GAIC‟s alternative argument — that even if the suggestive Palma notice
procedure is proper, such notice should not issue, absent exceptional
circumstances, without the appellate court‟s first affording the real party in interest
an opportunity to file an opposition — does not compel a different result. The
California Rules of Court specifically authorize an appellate court to notify the
parties that it is considering issuance of a peremptory writ in the first instance
without requesting preliminary opposition or waiting for a reply. (Rule
8.487(a)(4).)
We acknowledge, however, that although the circumstances in which a
Palma notice may issue are rare, the availability of this procedure may place
appellate counsel for the real party in interest in a difficult situation. On the one
hand, counsel do not wish to waste their clients‟ resources by responding
immediately and fully to every writ petition, particularly in light of the
circumstance that the overwhelming majority of such petitions are summarily
denied. On the other hand, counsel face a risk, albeit a small one, that the

(Footnote continued from previous page.)
order. In doing so, we reject the suggestion advanced in the concurring and
dissenting opinion that we should muzzle the Courts of Appeal by forbidding them
from articulating their preliminary analysis in a Palma notice and providing the
reasons for the action they are taking. We also do not share the concurring and
dissenting opinion‟s view that a suggestive Palma notice is likely to coerce or
intimidate a trial court — the court most familiar with the proceedings — into
changing its interim order against its better judgment. To the contrary, we have
full confidence in the ability of trial courts to make informed decisions based upon
the relevant law and the facts, uncowed by the appellate court‟s expression of its
tentative views. If anything, the principles set forth above should fortify the
resolve of those trial courts that, after the receipt of a suggestive Palma notice,
continue to believe their original order is correct. On the other hand, should the
trial court determine that reconsideration is appropriate in response to a suggestive
Palma notice, the parties now will receive notice and an opportunity to be heard
before the trial court proceeds.
16


appellate court may issue a Palma notice and, in response, the trial court may
reconsider its ruling, without counsel having vigorously represented their client‟s
interests in the appellate court. Therefore, although not required, in order to help
alleviate this practical dilemma we strongly encourage appellate courts to inform
the parties — and invite preliminary opposition — in the event the appellate court
anticipates taking any action other than summarily denying the writ petition.
IV.
In Le Francois, supra, 35 Cal.4th 1094, we held that a trial court has
inherent power to reconsider an interim ruling on its own motion. (Id. at pp. 1096-
1097.) This authority derives from the judiciary‟s fundamental, constitutionally
mandated function to resolve specific controversies between parties. (Id. at
p. 1104.) Concerns of procedural fairness, however, led us further to conclude
that a trial court intending to exercise this power must provide the parties “notice
that it may do so and a reasonable opportunity to litigate the question.” (Id. at
p. 1097; see id. at pp. 1108-1109.)
At issue in Le Francois was a successive motion for summary judgment,
which the trial court granted despite the circumstance that the motion was not
based upon either new facts or new legal authority, and therefore was not
authorized by either section 437c, subdivision (f)(2) or section 1008.9 We held

9
Section 437c, subdivision (f)(2), limits a party‟s ability to renew a motion
for summary judgment. It provides: “[A] party may not move for summary
judgment based on issues asserted in a prior motion for summary adjudication and
denied by the court, unless that party establishes to the satisfaction of the court,
newly discovered facts or circumstances or a change of law supporting the issues
reasserted in the summary judgment motion.” Section 1008, the statute generally
governing motions for reconsideration, allows a party to seek reconsideration of a
prior order only if the party‟s motion demonstrates new or different facts,
circumstances, or law. Alternatively, section 1008 provides that if the court
determines there has been a change of law that warrants reconsideration, it may
reconsider a prior order on its own motion.
17


that, although these provisions limit the circumstances in which a party may seek
reconsideration, they “do not limit the court‟s ability, on its own motion, to
reconsider its prior interim orders so it may correct its own errors.” (Le Francois,
supra, 35 Cal.4th at p. 1107.) Interpreted in this manner, the statutes serve their
purpose of limiting the ability of litigants to waste the court‟s resources by
repeatedly bringing the same motion — without impairing the court‟s ability
properly to resolve controversies and ensure the orderly administration of justice.
(Id. at p. 1104.)
We explained in Le Francois that it is immaterial what may have triggered
a trial court‟s insight that its interim order might be erroneous: “We cannot
prevent a party from communicating the view to a court that it should reconsider a
prior ruling (although any such communication should never be ex parte). We
agree that it should not matter whether the „judge has an unprovoked flash of
understanding in the middle of the night‟ [citation] or acts in response to a party‟s
suggestion. If a court believes one of its prior interim orders was erroneous, it
should be able to correct that error no matter how it came to acquire that belief.”
(Le Francois, supra, 35 Cal.4th at p. 1108; see, e.g., In re Marriage of Barthold
(2008) 158 Cal.App.4th 1301, 1308 [although motion for reconsideration that is
unsupported by new legal authority or new evidence violates section 1008, such a
motion may inspire the trial court to reconsider its previous decision on its own
motion].)
Finally, in Le Francois we addressed the procedures to be followed when
there is a suggestion, or when there exists a concern, that an interim ruling is
erroneous. “The court need not rule on any suggestion that it should reconsider a
previous ruling and, without more, another party would not be expected to respond
to such a suggestion.” (Le Francois, supra, 35 Cal.4th at p. 1108.) But, “[t]o be
fair to the parties, if the court is seriously concerned that one of its prior interim
18
rulings might have been erroneous, and thus that it might want to reconsider that
ruling on its own motion — something we think will happen rather rarely — it
should inform the parties of this concern, solicit briefing, and hold a hearing.
[Citations.] Then, and only then, would a party be expected to respond to another
party‟s suggestion that the court should reconsider a previous ruling. This
procedure provides a reasonable balance between the conflicting goals of limiting
repetitive litigation and permitting a court to correct its own erroneous interim
orders.” (Id. at pp. 1108-1109, italics added; see, e.g., Montegani v. Johnson
(2008) 162 Cal.App.4th 1231, 1238 [after trial court determined it should
reconsider an interim order in light of intervening case law, it informed the parties
of its concern, requested briefing, and held a hearing]; Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 98-99 [juvenile court had statutory and
constitutional authority to modify its prior disposition order, on its own motion,
after giving the parties notice and an opportunity to be heard].)
Similar concerns of fairness lead us to conclude that the procedural
protections outlined in Le Francois, supra, 35 Cal.4th 1094, should apply when a
trial court, in response to a suggestive Palma notice, decides to revisit an interim
ruling. It is, of course, understandable that the receipt of a suggestive Palma
notice, which typically explains in some detail the factual and legal basis for the
appellate court‟s present intention to issue a peremptory writ in the first instance,
may prompt the trial court to reconsider the challenged interim ruling. After all, as
we consistently have emphasized, the accelerated Palma procedure “should be
adopted only when petitioner‟s entitlement to relief is so obvious . . . for example,
when such entitlement is conceded or there has been clear error under well-settled
principles of law and undisputed facts.” (Ng, supra, 4 Cal.4th at p. 35.)
In view of the nonbinding nature of a suggestive Palma notice, however, a trial
court that is inspired to act in response to such a notice necessarily acts on its own
19
motion. We therefore conclude that before vacating, modifying, or otherwise
reconsidering an interim ruling in response to a suggestive Palma notice, the trial
court must inform the parties that it is considering taking such action and provide
them with an opportunity to be heard. This procedure reasonably balances the
interest in conserving scarce judicial resources with the parties‟ right to notice and
an opportunity to be heard. It also should assist in forestalling any errors by the
trial court resulting from the appellate court‟s issuance of a suggestive Palma
notice that is based upon an incomplete or inaccurate writ petition to which there
has been no response, and further assist in avoiding subsequent writ or appellate
proceedings that might be brought to challenge such errors.10

10
The amicus curiae brief filed in this court by the California Academy of
Appellate Lawyers has been of great assistance in resolving the issues presented
by this case. One issue raised by that brief — the propriety of so-called
“suggestive” or “speaking” alternative writs — is not before the court and
therefore is not addressed in this opinion. We do note, however, that following the
issuance of any alternative writ, there is always the possibility that the trial court
will comply with the writ, and that the appellate court will dismiss the petition as
moot. (See, e.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2008) §§ 15:157.5-15:157.6, pp. 15-74 through 15-75 (rev. #1
2009).) This is analogous to the scenario discussed in section V., and it follows
that under the principles set forth above, if a trial court is considering changing an
interim order in response to an alternative writ, it must give the respective parties
notice and an opportunity to be heard.
20



IV.
In light of the foregoing conclusions we reach, the Court of Appeal did not
err in issuing its August 28, 2007, order comprising the suggestive Palma notice
here at issue. As noted, subsequent settlement of the litigation underlying
Brown‟s writ petition has rendered moot the relief sought in that petition. We
therefore affirm the Court of Appeal‟s judgment dismissing the writ proceeding.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.

21



CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
The questions we face are whether “suggestive” or “coercive” Palma
notices1 are permissible, given the strictures of Code of Civil Procedure section
1088 and the California Rules of Court, and whether, even if so, we should
countenance them in the exercise of our supervisory powers over the courts of this
state. The answer to the first of these questions is “probably not”; the answer to
the second, I submit, is an unqualified “no.” Accordingly, on the merits of this
appeal, I respectfully dissent.2
I
My colleagues and I agree on many points. For one, we agree it is critical
in writ proceedings for parties to have notice and the opportunity to submit
briefing to the decision maker before adverse action is taken. (See maj. opn., ante,

1
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma). In
a suggestive or coercive Palma notice, a Court of Appeal intimates to the parties
to a writ proceeding, and to the trial court, that it will probably grant peremptory
writ relief unless the trial court reverses itself. While one may debate what terms
best describe these notices, for convenience I accept the majority‟s choice of
nomenclature and will refer to them as suggestive.
2
Because this case is moot, I agree the Court of Appeal‟s judgment
dismissing the writ proceeding technically should be affirmed, and to that limited
extent I concur.
1


at pp. 17-19.) For another, we agree that conservation of judicial resources — to
the extent it can be accomplished without compromising the interests of litigants
in fair hearings — is an admirable and worthy goal. What we disagree over is the
extent to which suggestive Palma notices, even as modified by the additional trial
court proceedings the majority proposes (maj. opn., ante, at pp. 17-20), satisfy
these goals.
In Palma, we interpreted Code of Civil Procedure section 1088‟s
requirement that “due notice” be provided before a peremptory writ could issue.
We identified both notice and an opportunity to be heard as essential prerequisites:
“[A] peremptory writ of mandate or prohibition [may] not issue in the first
instance unless the parties adversely affected by the writ have received notice,
from the petitioner or from the court, that the issuance of such a writ in the first
instance is being sought or considered. In addition, an appellate court, absent
exceptional circumstances, should not issue a peremptory writ in the first instance
without having received, or solicited, opposition from the party or parties
adversely affected.” (Palma, supra, 36 Cal.3d at p. 180.) A traditional Palma
notice satisfies these requirements: The party opposing the writ receives notice
and is given time to file opposition in the Court of Appeal before that court
decides the merits of the writ. Here in contrast, where the Court of Appeal issued
a suggestive Palma notice instead, the proceedings below violated Palma‟s
requirements.
This case arises from an insurance coverage dispute. Law firm Brown,
Winfield & Canzoneri, Inc. (Brown Winfield), was sued for malpractice by Azusa
Pacific University based on the firm‟s handling of an eminent domain action.
Brown Winfield sought coverage from its malpractice carrier, Great American
Insurance Company (Great American); Great American accepted defense of the
action with a reservation of rights, but also filed a declaratory relief action
2
asserting there was no coverage. Brown Winfield obtained a stay of the
declaratory relief action pending decision of the underlying malpractice case, but
in 2007 the trial court lifted the stay.
On Brown Winfield‟s petition for writ relief, the Court of Appeal issued the
suggestive Palma notice at issue here. The notice discussed the merits at length
and strongly suggested the trial court had erred in lifting the stay. Having done so,
the Court of Appeal gave the trial court jurisdiction to change its mind and enter a
revised order. The trial court did so the next day and the Court of Appeal
dismissed the petition two weeks later, all without any briefing or opportunity by
Great American to be heard.
While Great American technically was provided notice, one may question
how meaningful the notice was in light of the fact it was issued after the close of
business on August 28, 2007, and elicited a reversal from the trial court less than
24 hours later.3 More clearly, the proceedings below violated the requirement that
an opportunity to present opposition be provided parties opposing issuance of a
writ before the matter is adjudicated. (Palma, supra, 36 Cal.3d at p. 180; Code
Civ. Proc., § 1088.) Were Great American‟s counsel Superman himself, he could
not have prepared an opposition brief and filed it in time for the Court of Appeal
to read it, rethink its position, issue a new order reversing itself, and have the trial
court receive and consider that new order before reversing itself.
This case illustrates how a suggestive Palma notice subverts the orderly
process we intended before a peremptory writ could issue. By issuing a suggestive
notice, the Court of Appeal — the decision maker on the writ — expresses an
opinion on the merits without having ever heard from the opposing side. That this

3
Our copy of the notice shows it was faxed by the Court of Appeal clerk‟s
office at 6:25 p.m. on August 28. The trial court‟s minute order is dated August
29 at 1:30 p.m.
3


decision can be deemed “tentative” (maj. opn., ante, at pp. 12-13) does not redeem
the process. When a court issues a tentative decision, the party who stands to lose
generally has a chance to argue its side to that court in hopes of persuading it to
reconsider and reach a different decision. A suggestive Palma notice denies writ
opponents this opportunity because it effectively sends the case back to the trial
court immediately, thus permitting (or, as in this case, encouraging) the issue to be
resolved in the trial court without further proceedings in the Court of Appeal.
Here, of course, the problem was amplified by the trial court‟s speedy response,
which meant that Great American was unable to tell its side to either court.
While it is true we acknowledged in Palma that it might suffice for a Court
of Appeal to merely solicit informal opposition from the potentially adversely
affected party (Palma, supra, 36 Cal.3d at p. 180), we did so in contemplation of a
situation where that party, afforded a reasonable time in which to submit briefing,
voluntarily elected to forgo its opportunity to put forward the merits of its position.
We did not contemplate a situation where, as here, the adversely affected party
was provided no meaningful opportunity to explain why a peremptory writ should
not issue.4 Nor does it matter that no writ was actually issued because the trial
court, attuned to the clear import of the Court of Appeal‟s notice, did as directed
and reversed itself. (See maj. opn., ante, at pp. 11-12.) The sine qua non of a
peremptory writ under Palma, meaningful notice and an opportunity to be heard,

4
Notably, the notice here gave only a conditional right of response; if the
trial court had not already reversed itself, Great American could file a response
within 13 days. As the trial court reversed itself the very next day — an
occurrence that is probably not uncommon, given the strong wording of notices
like this one — Great American had no opportunity to respond.
4


was lacking here. The majority‟s unsupported contention to the contrary (maj.
opn., ante, at p. 10) is disingenuous and simply wrong.5
Moreover, the proceedings here also failed to comport with the California
Rules of Court, which provide: “If the court notifies the parties that it is
considering issuing a peremptory writ in the first instance, the respondent or any
real party in interest may serve and file an opposition.” (Cal. Rules of Court, rule
8.487(b)(1).) While “may” is permissive rather than mandatory, the most credible
reading of this provision is that an adversely affected party has a right, but may
choose not to exercise that right, to oppose issuance of a peremptory writ.
Suggestive Palma notices like the one issued here cannot be reconciled with that
right.6

5
The acknowledgement that “exceptional circumstances” might warrant
proceeding without an opportunity for opposition (Palma, supra, 36 Cal.3d at
p. 180) does not come into play here. Given that Palma was discussing the
procedural requirements for issuing a peremptory writ, which itself requires highly
unusual circumstances, the exceptional circumstances it alluded to cannot be
simply those that would justify a peremptory writ — clear error or exigent
circumstances. That is, if every time the preconditions for a peremptory writ were
present, the preconditions for skipping opposition were also present, the
“requirement” would be an empty one. The exceptional circumstances that might
warrant proceeding without opposition may, I think, reasonably be confined to
cases where the peremptory writ is justified by exigent circumstances — where
time truly is of the essence — rather than cases where the writ is justified only by
the (apparent) obviousness of the trial court‟s error. Even then, depending on just
how exigent the circumstances are, there may be time for a Court of Appeal to
solicit oral or written input from the parties on a greatly expedited schedule.
6
In concluding that suggestive Palma notices are consistent with the
California Rules of Court, the majority addresses only rule 8.487(a)(4), which
permits a court to issue notice that it is considering issuance of a peremptory writ
without first obtaining preliminary opposition. It disregards that rule‟s subdivision
(b)(1), which governs the right to submit briefing after notice that a peremptory
writ is being contemplated has been sent.
5


As a practical matter, the majority‟s proposal to permit suggestive Palma
notices, provided the trial court solicits briefing before acquiescing in the Court of
Appeal‟s views on an issue, does not in my view cure these failings. What Code
of Civil Procedure section 1088, Palma, supra, 36 Cal.3d 171, and rule
8.487(b)(1) of the California Rules of Court all focus on is the importance of a
meaningful opportunity to be heard by the decision maker, the entity with the
ultimate authority on a question. In suggestive Palma notice situations, the Court
of Appeal, not the supposedly mistaken trial court, is the true decision maker.
Consequently, the opportunity to be heard in the trial court may prove illusory.
Rare, I believe, is a trial court that would adhere to its initial ruling in the face of a
Court of Appeal‟s written assessment that it was patently wrong. Critically, if the
position advanced in the suggestive Palma notice is flawed because of something
the Court of Appeal overlooked, the trial court, unaware of this oversight from the
text of the notice itself, may be reluctant to rely on such an overlooked ground as
dispositive; presented with a meritorious but overlooked argument, the trial court
is likely to reverse itself anyway. I cannot see from a fairness perspective, or a
perception of fairness perspective — affording litigants the sense they have been
heard and had their day in court — how this is superior to having Courts of Appeal
wait a few extra days for opposition briefing.7

7
The majority opinion suggests that depriving the Courts of Appeal of the
use of suggestive Palma notices would amount to “muzzl[ing]” them. (Maj. opn.,
ante, at p. 16, fn. 8.) Not so. The vice of such notices lies in the invitation to trial
courts to unburden the Courts of Appeal from further proceedings — the “strong[]
suggest[ion] that the trial court act in accordance with the appellate court‟s views”
(maj. opn., ante, at p. 14) — thereby placing litigants in the position of losing
without a bona fide opportunity to be heard before the true decision maker in a
case. Nothing in Palma would foreclose a Court of Appeal from offering an
account of its preliminary views in a Palma notice, so long as it also made clear
further proceedings were to be conducted in that court and not the trial court. That
is not what was done here, nor, it would appear, is it generally the case with
(Footnote continued on next page.)
6


II
The urge to look past the requirements of Palma and the California Rules
of Court might be at least understandable, if still unjustified, were there some
significant administrative benefit to the suggestive Palma procedure in either its
original form or as modified by the majority. There is not.
That suggestive Palma notices have saved Courts of Appeal a small amount
of time, albeit at the likely cost of having some litigants feel they were deprived of
a fair hearing, may be true. But Court of Appeal economy is not the same as
judicial economy, and the transfer of decisionmaking from one court level to
another is not necessarily a resource saver in the aggregate. We must consider the
costs to the court system as a whole, at the trial as well as at the appellate level.
That the trial court proceedings the majority now proposes involve any increased
judicial efficiency over the usual Palma procedure is not apparent.8
From an efficiency perspective, moreover, a more pernicious unintended
consequence of today‟s decision for both courts and litigants is likely. As amicus
curiae the California Academy of Appellate Lawyers ably explained in its briefing
and at oral argument, attorneys advising their clients how or whether to oppose a
writ petition must take into account the full range of potential outcomes they face.
Before today, attorneys could safely advise their clients that doing nothing, or
filing a preliminary opposition limited solely to the petitioner‟s failure to establish

(Footnote continued from previous page.)
suggestive Palma notices. (See Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed.
2009) § 22.22, pp. 603-604; id., § 28.9, pp. 747-748.)
8
Moreover, if a trial court standing in the shadow of a suggestive Palma
notice reverses itself erroneously, for reasons the Court of Appeal overlooked but
that could have been expeditiously called to its attention had briefing occurred
initially in that court, a second trip up to the Court of Appeal will be necessary.
This is the opposite of efficiency.
7


the essential procedural prerequisites for writ relief, would not cost their clients
the opportunity to be heard on the merits by the court with ultimate
decisionmaking power in the matter. From the perspective of client advice,
whether I or the majority is right about the sufficiency of trial court briefing as a
substitute for briefing in the Court of Appeal matters not. If any significant
number of attorneys perceive being returned to the trial court with the deck
stacked against them is a risk and less desirable than remaining in the Court of
Appeal with an opportunity to brief why relief should be denied, or simply wish to
insulate themselves from client criticism such a turn of events might entail, the
Courts of Appeal can expect to see a rise in the number of full-blown preliminary
opposition briefs addressing the merits of a writ petition. Increasingly, writ
briefing may become frontloaded. Consideration of such briefs will necessarily
consume more Court of Appeal time and resources, to say nothing of the extra cost
to the litigants.
The majority‟s solution for this problem is to encourage — but not require
— Courts of Appeal to notify the parties and invite opposition before taking any
action other than summarily denying a writ. (Maj. opn., ante, at p. 16.) But
Palma and the Code of Civil Procedure already require this for peremptory writs.
(Palma, supra, 36 Cal.3d at p. 180; Code Civ. Proc., § 1088.) If the suggestion is
for Courts of Appeal to issue a presuggestive Palma-notice notice — a new and
additional “Brown Winfield” notice, if you will — to just eliminate suggestive
Palma notices would seem far simpler.
III
The original Palma procedure was not broken; it did not need fixing. It
should have sufficed here for this court to remind the Courts of Appeal that the
Palma procedure is to be rarely, not routinely, invoked, and that the procedure
requires an opportunity for briefing before the Court of Appeal reaches the merits
8
of a writ petition. (See Palma, supra, 36 Cal.3d at p. 180.) No sound reason
exists to dispense with Palma‟s requirements of notice and an opportunity for the
opposing party to be heard in the Court of Appeal.
The majority acknowledges that Palma notices are appropriate only in the
“rare circumstances” (maj. opn., ante, at p. 1) where immediate action is required
or the trial court‟s error is utterly indisputable, and I fully agree with that
sentiment. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1261 [“We
emphasize, however, as we have in previous decisions, that the accelerated Palma
procedure is reserved for truly exceptional cases—primarily those in which a
compelling temporal urgency requires an immediate decision.”]; Alexander v.
Superior Court (1993) 5 Cal.4th 1218, 1223, overruled on other grounds by
Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v.
Superior Court (1992) 4 Cal.4th 29, 35 [“We stress that the accelerated Palma
procedure is the exception; it should not become routine.”].)9 But the rest of the
majority opinion effectively undermines this view. By giving our imprimatur to
the suggestive Palma procedure, we inevitably will encourage its spread, and with
it, I fear, further overuse and abuse of the Palma procedure itself.

9
We are advised by counsel for amicus curiae that some courts now
routinely include Palma notices in their initial form notices requesting preliminary
opposition. Whatever convenience this might afford the Courts of Appeal, it
defeats the purpose of the Palma notice, which is to provide actual notice that a
peremptory writ is in fact being contemplated, and is at odds with our repeated
admonitions that Palma procedures are to be reserved for exceptional cases.
9


For these reasons, I disagree with the majority‟s conclusion that the Court
of Appeal did not err in issuing a suggestive Palma notice, a notice that resulted in
Great American having a ruling in its favor reversed by the trial court less than 24
hours later with no opportunity to be heard. I further disagree with the majority‟s
decision to erect elaborate new procedural requirements to cure the unadmitted
flaws in the suggestive Palma notice procedure, a step that may do little to cure
those flaws and is likely to entail its own unintended consequences.
WERDEGAR, J.
WE CONCUR:
MORENO, J.
CORRIGAN, J.

10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Brown, Winfield & Canzoneri, Inc. v. Superior Court
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted XXX
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S156598
Date Filed: February 1, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Elihu Berle

__________________________________________________________________________________

Attorneys for Appellant:

Bingham McCutchen, Bruce A. Friedman, Kenneth S. Meyers, Gina M. Simas; Shernoff Bidart Darras &
Echeverria, Michael J. Bidart, Ricardo Echeverria; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for
Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Cochran, Davis & Associates, Joan E. Cochran; Thompson & Alessio, Kris P. Thompson and Jeffrey K.
Miyamoto for Real Party in Interest

Jay-Allen Eisen; Dennis A. Fischer; Joseph R. Grodin; Steven L. Mayer; Robin Meadow; Robert A. Olson;
Jonathan B. Steiner; Douglas R. Young; Eisenberg and Hancock and Jon B. Eisenberg for California
Academy of Appellate Lawyers as Amicus Curiae on behalf of Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey Isaac Ehrlich
The Ehrlich Law Firm
411 Harvard Avenue
Claremont, CA 91711
(909) 625-5565

Joan E. Cochran
Cochran, Davis & Associates
36 Malaga Cove Plaza, Suite 206
Palos Verdes Estates, CA 90274
(310) 373-0900

Jon B Eisenberg
Eisenberg and Hancock
80 Montgomery Street, Suite 2200
San Francisco, CA 94104
(415) 984-0650


Petition for review after the Court of Appeal issued an order regarding a petition for peremptory writ of mandate. The court limited review to the following issues: (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?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 02/01/201047 Cal. 4th 1233, 223 P.3d 15, 104 Cal. Rptr. 3d 145S156598Review - Civil Original Proceedingopinion issued

Parties
1Brown, Winfield & Canzoneri, Inc. (Petitioner)
Represented by Jeffrey Ehrlich
The Ehrlich Law Firm
411 Harvard Avenue
Claremont, CA

2Brown, Winfield & Canzoneri, Inc. (Petitioner)
Represented by Michael J. Bidart
Shernoff Bidart & Darras
600 S. Indian Hill Boulevard
Claremont, CA

3Superior Court of Los Angeles County (Respondent)
Represented by Frederick R. Bennett
Superior Court of Los Angeles County
111 N. Hill Street, Suite 620
Los Angeles, CA

4Great American Insurance Company (Real Party in Interest)
Represented by Jeffrey Kenji Miyamoto
Thompson & Alessio, LLP
2550 Fifth Avenue, Suite 600
San Diego, CA

5Great American Insurance Company (Real Party in Interest)
Represented by Joan Elaine Cochran
Cochran, Davis & Associates, P.C.
36 Malaga Cove Plaza, Suite 206
Palos Verdes Estates, CA

6California Academy of Appellate Lawyers (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg & Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA


Opinion Authors
OpinionChief Justice Ronald M. George
DissentJustice Kathryn M. Werdegar

Disposition
Feb 1 2010Opinion: Affirmed

Dockets
Sep 21 2007Petition for review filed
  Great American Insurance Co., Real Party in Interest Jeffrey K. Miyamoto, counsel
Sep 21 2007Request for judicial notice received (pre-grant)
  Great American Insurance Co., Real Party in Interest Jeffrey K. Miyamoto, counsel
Sep 25 2007Record requested
  via email
Sep 28 2007Received Court of Appeal record
 
Oct 11 2007Answer to petition for review filed
  Petitioner Brown, Winfield & Canzoneri, Inc. Attorney Kenneth S. Meyers
Oct 11 2007Request for judicial notice received (pre-grant)
  Petitioner Brown, Winfield & Canzoneri, Inc. Attorney Kenneth S. Meyers
Oct 23 2007Reply to answer to petition filed
  Real Party Great American Insurance Company [rule 8.25] Attorney Jeffrey K. Miyamoto
Nov 8 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including December 20, 2007, or the date upon which review is either granted or denied.
Dec 12 2007Petition for review granted; issues limited (civil case)
  Respondent's request for judicial notice is granted. Petitioner's request for judicial notice is denied. The petition for review is GRANTED in so far as it seeks review of the order of the Court of Appeal, Second Appellate District, Division Three filed in this matter on August 28, 2007. Pursuant to California Rules of Court, rule 8.516(a) the issues to be briefed and argued are limited to the following: (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 as "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? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Dec 12 2007Letter sent to:
  Counsels re: Certificate of Interested Entities of Person
Dec 27 2007Certification of interested entities or persons filed
  Petitioner Brown, Winfield & Canzoneri, Inc. Attorney Kenneth S. Meyers
Dec 27 2007Certification of interested entities or persons filed
  Great American Insurance Company, RPI by Jeffrey K. Miyamoto, counsel
Jan 3 2008Request for extension of time filed
  Real Party in Interest - Great American Insurance requesting extension till February 11, 2008 to file opening brief on the merits. by Jeffrey K. Miyamoto, counsel
Jan 9 2008Extension of time granted
  On application of Real Party in Interest and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 11, 2008.
Jan 25 2008Notice of substitution of counsel
  for respondent Brown, Winfield & Canzoneri counsel Michael J. Bidart replacing Bruce A. Friedman
Feb 14 2008Opening brief on the merits filed
  Great American Insurance Company, real party in interest by Jeffrey K. Miyamoto, counsel
Mar 3 2008Motion to dismiss filed (non-AA)
  Great American Insurance Company, real party in interet by Jeffrey K. Miyamoto, counsel
Apr 9 2008Motion denied
  The motion to dismiss filed on March 3, 2008, in the above-entitled proceeding is denied. Brown, Winfield & Canzoneri, Inc., is directed to serve and file its answer brief within 30 days after the date of this order.
Apr 15 2008Notice of substitution of counsel
  The court and all parties are notified that defendant, Great American Insurance Companies makes the following sustitution: former legal representative, Attorney, Kris P. Thompson, Esq., Thompson & Allesio, will be replaced by new legal representative, Attorney , Joan E. Cochran, Esq., Cochra, David & Associates.
May 9 2008Motion filed (non-AA)
  Motion for reconsideration of order denying motion to dismiss review. by Jeffrey Isaac Ehrlich, counsel
May 12 2008Filed:
  Notice of Associaton of Counsel Jeffrey Isaac Ehrlich, counsel The Ehrlich Law Firm
May 21 2008Order filed
  The motion for reconsideration of the order denying the motion of Great American Insurance Company to dismiss the above-entitled proceeding is denied. Brown, Winfield & Canzoneri, Inc., is directed to serve and file its answer brief within 30 days after the date of this order. This court has granted review in the above-entitled action of an order issued by the Court of Appeal, Second Appellate District, Division Three on August 28, 2007, which informed the parties that the Court of Appeal was considering issuing a peremptory writ of mandate in the first instance, and conferred upon the trial court 'the power and jurisdiction to change and correct its erroneous order.' This court has directed the parties to brief the following issues: (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 Court of Appeal, Second Appellate District, is invited to submit an amicus curiae brief addressing the propriety of its August 28, 2007 order.
Jun 20 2008Answer brief on the merits filed
  Brown, Winfield & Cazoneri, Inc., petitioner by Jeffrey Isaac Ehrlich, counsel
Aug 8 2008Received application to file Amicus Curiae Brief
  California Acadmey of Appellate Lawyers in support of Real Party in Interst. by Jon B. Eisenberg, counsel
Aug 14 2008Permission to file amicus curiae brief granted
  California Academy of Appellate Lawyers by Jon B. Eisenberg, counsel
Aug 14 2008Amicus curiae brief filed
  The application of California Academy of Appellate Lawyers for permission to file an amicus curiae brief in support of real party in interest is hereby granted. An answer thereto may be served any party within twenty days of the filing of the brief.
Sep 2 2009Case ordered on calendar
  To be argued Tuesday, October 6, 2009, 9:00 a.m., Los Angeles, California.
Sep 3 2009Supplemental briefing ordered
  At oral argument in the above-captioned case, the court will be interested to hear the parties' views concerning whether a trial court must afford notice and an opportunity to be heard prior to reconsidering an interim ruling in response to a suggestive Palma notice. (See, e.g., Le Francois v. Goel (2005) 35 Cal.4th 1094.) The parties and amicus curie Academy of Appellate Lawyers are further invited to serve and file, at their discretion, supplemental letter briefs addressing this issue, on or before September 21, 2009.
Sep 15 2009Supplemental brief filed
Amicus curiae: California Academy of Appellate LawyersAttorney: Jon B. Eisenberg  
Sep 17 2009Order filed
  The request of counsel for real party in interest in the above-referenced cause to allow two counsel to argue on behalf of real party at oral argument is hereby granted. The request of real party to allocate to amicus curiae California Academy of Appellate Lawyers 15 minutes of real party's 30-minute allotted time for oral argument is granted.
Oct 6 2009Cause called and continued
  to be set for argument on a future calendar
Oct 6 2009Argument rescheduled
  to be argued on Wednesday, November 4, 2009, at 1:30 p.m., in San Francisco.
Nov 4 2009Cause argued and submitted
 
Jan 29 2010Notice of forthcoming opinion posted
  To be filed Monday, February 1, 2010 @ 10 a.m.
Feb 1 2010Opinion filed: Judgment affirmed in full
  Opinion by George, C.J. ----joined by Kennard, Baxter & Chin, JJ. Concurring & Dissenting Opinion by Werdegar, J. ----joined by Moreno & Corrigan, JJ.

Briefs
Feb 14 2008Opening brief on the merits filed
 
Jun 20 2008Answer brief on the merits filed
 
Aug 14 2008Amicus curiae brief filed
 
Brief Downloads
application/pdf icon
s156598_-_petition_for_review.pdf (1523399 bytes) - Petition for Review
application/pdf icon
s156598_-_answer_to_petition_for_review.pdf (930254 bytes) - Answer to Petition for Review
application/pdf icon
s156598_-_reply_to_answer_to_petition_for_review.pdf (394530 bytes) - Reply to Answer to Petition for Review
application/pdf icon
s156598_-_opening_brief_on_the_merits.pdf (851494 bytes) - Opening Brief on the Merits
application/pdf icon
s156598_-_answer_brief_on_the_merits.pdf (554480 bytes) - Answer Brief on the Merits
application/pdf icon
s156598_-_supplemental_brief.pdf (204234 bytes) - Supplemental Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 28, 2010
Annotated by dconner

Facts & Procedural Posture:

Great American Insurance Company (GAIC) brought an action for declaratory relief against its insured, Brown, Winfield & Canzoneri, Inc. (Brown), regarding Brown’s coverage by GAIC. At the time, there was litigation pending that involved claims for which Brown sought coverage by GAIC. Though the trial court originally chose to stay the declaratory relief action pending resolution of the litigation, the court later lifted the stay and set a trial date.

Brown filed a “Petition for Writ of Mandate, Prohibition, or Other Appropriate Relief” with the Court of Appeal requesting a stay on the declaratory relief action and an order compelling the trial court to vacate the trial date and stay the declaratory relief action until resolution of Brown’s pending litigation. The Court of Appeal issued a suggestive Palma notice that stated that it appeared that the trial had erred in lifting the stay.

One day after the suggestive Palma notice was issued, the trial court vacated its previous order and reinstated the stay on the declaratory relief action proceedings until conclusion of the underlying litigation. The Court of Appeal then dismissed the writ petition as moot.

The Supreme Court of California granted GAIC’s petition for review of the Court of Appeal’s suggestive Palma notice.

Issues:

1. May an appellate court properly issue a suggestive Palma notice?
2. If so, absent exceptional circumstances, may such a notice be issued without the appellate court’s having received or solicited opposition from the real party in interest?

Holding:

1. Yes. Palma did not require any particular form when an appellate court notifies parties that it may issue peremptory writ in the first instance.
2. Yes. A suggestive Palma notice is not the equivalent of issuance of a peremptory writ in the first instance, which would require that the court give the adversely affected parties notice and an opportunity to be heard.

Reasoning (C.J. George):

In Palma v. U.S. Industrial Fasteners, the Supreme Court of California held that an appellate court cannot issue a peremptory writ of mandate or prohibition in the first instance without notifying adversely affected parties that the writ is being sought or considered. The Court also concluded that, “absent exceptional circumstances, an appellate court ‘should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected.’ ” In a later case, Ng v. Superior Court, the Court also emphasized that the Palma alternative to the normal writ procedure “should be adopted only when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue…or when there is an unusual urgency requiring acceleration of the normal process.” Thus, appellate courts should follow the normal writ procedure when the matter is not urgent and when the law and facts regarding the relief sought are not clear. The accelerated process is reserved for “truly exceptional” cases.

Appellate courts now routinely issue “Palma notices” that inform parties a writ may issue and invite informal opposition. A suggestive Palma notice, however, goes a bit farther. It typically informs the parties that it intends to issue a peremptory writ in the first instance, discusses the merits of the writ petition, grants the trial court power and jurisdiction to change the disputed order, and solicits opposition to the issuance of a writ in the event that the trial court chooses not to follow the appellate court’s recommendation.

Here, the Court approved of suggestive Palma notices. It stated that Palma does not require any specific form of notice and does not prevent an appellate court from expressing its view on the merits of the writ petition. The Court was not persuaded that a suggestive Palma notice is the equivalent of issuing a writ, which would require that the court give the adversely affected parties notice and an opportunity to be heard. Rather than requiring an inferior court to grant to relief requested, a suggestive Palma notice is not binding and allows the trial court to stick to its ruling. The Court noted the practical advantages of suggestive Palma notices, such as allowing the appellate court to keep its options open.

The Court did, however, set limits on suggestive Palma notices. They may not “direct the trial court to change its order, or purport to grant the trial court authority to change its order without first affording the parties notice and an opportunity to be heard in the trial court.” Thus, appellate courts should avoid using language that sounds compulsory. Because suggestive Palma notices often cause trial courts to change their rulings, the Court also strongly recommended that appellate courts inform the parties and invite opposition when taking any action other than summarily denying the writ petition.

The Court noted that trial courts have inherent authority to reconsider their own rulings. It does not matter why the trial court changes its mind. However, the Court stated that the trial court must provide procedural protections for parties: “[B]efore vacating, modifying, or otherwise reconsidering an interim ruling in response to a suggestive Palma notice, the trial court must inform the parties that it is considering taking such action and provide them with an opportunity to be heard. This procedure reasonably balances the interest in conserving scarce judicial resources with the parties’ right to notice and an opportunity to be heard.”

In the case at hand, the Supreme Court of California concluded that the Court of Appeal did not err in issuing the suggestive Palma notice.

Annotation by Diana Conner

Key terms: suggestive Palma notice, writ, Palma v. U.S. Industrial Fasteners, Ng v. Superior Court, peremptory writ of mandate or prohibition, opportunity to be heard