November 15, 2010

Article analyzes California Supreme Court’s recent opinion approving suggestive Palma notices

This month’s California Lawyer has an article by Horvitz & Levy partner David M. Axelrad, in which he analyzes Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, the Supreme Court’s recent 4-3 decision upholding the validity of so-called “suggestive” or “coercive” Palma notices. As the article explains, a typical Palma notice “tells the parties that the appellate court is considering issuance of a peremptory writ in the first instance and, further, that opposition should be submitted by a specified date.” In Brown, Winfield, the Court considered a suggestive Palma notice, i.e., one that announces the appellate court has reached a tentative decision to grant a writ petition, and that the petition will be dismissed if the trial court changes its order in accordance with the Court of Appeal’s stated views. Under the suggestive Palma notice procedure, opposition briefing in the Court of Appeal is allowed only in the rare instance where the trial court refuses to change its order.

In the majority opinion, Chief Justice George held that nothing in California jurisprudence prohibits the suggestive Palma notice procedure because it does not command the trial court to do anything and is more akin to a tentative ruling. The Court further held that, to protect litigants’ due process rights, the trial court should afford the parties an opportunity to be heard before altering a prior ruling in response to a suggestive Palma notice.

In a dissent joined by Justices Moreno and Corrigan, Justice Werdegar pointed out that a suggestive Palma notice is not like a tentative opinion because a party has the opportunity to try to convince a court to change its tentative. Justice Werdegar further noted that the right to be heard in the trial court is probably illusory, because “[r]are . . . 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.” (Brown, Winfield, 47 Cal.4th at p. 1254.)

The article concludes that “Justice Werdegar may have the better of this argument” because courts should not decide cases until they have heard the whole story, that is, until they have received and considered an opposition to a writ petition. The article suggests that some modification of the suggestive Palma notice procedure should be considered.

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