Kowis v. Howard

• Decision Date: 05 November 1992
• Docket Number: No. S024012,S024012
• Citation: 3 Cal.4th 888,12 Cal.Rptr.2d 728,838 P.2d 250
• Court: California Supreme Court
• Parties: , 838 P.2d 250 Keenan KOWIS, Plaintiff and Respondent, v. Thornton M. HOWARD et al., Defendants and Appellants. Maryland Casualty Company, Intervener and Respondent.

Page 728

12 Cal.Rptr.2d 728

3 Cal.4th 888, 838 P.2d 250

Keenan KOWIS, Plaintiff and Respondent, v. Thornton M. HOWARD et al., Defendants and Appellants Maryland Casualty Company, Intervener and Respondent.

No. S024012.

Supreme Court of California,

In Bank.

Nov. 5, 1992.

Frank E. Noble, San Diego, for defendants and appellants.

Robert D. Baker and Konarad M. Rasmussen, McCormick & Mitchell, San Diego, for intervener and respondent.

George P. Andreos, San Diego, for plaintiff and respondent.

ARABIAN, Justice.

We are called upon to decide when, if ever, summary denial of a pretrial petition for extraordinary relief establishes law of the case precluding reconsideration of the issue on appeal following final judgment. We conclude that the denial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ.

I. FACTS

Plaintiff Keenan Kowis sued Malk, Ltd., and its sole shareholder, Thornton M. Howard (collectively defendant), for damages allegedly suffered when plaintiff slipped on a patch of oil on property owned by defendant. Maryland Casualty Company intervened. During the course of the litigation, plaintiff served defendant with a request to admit (1) that plaintiff was injured when he slipped on defendant's property, (2) that plaintiff injured his lower back as a result of the fall, (3) that defendant was negligent in not inspecting the property, and (4) that defendant's negligence was a proximate cause of plaintiff's injuries. After defendant failed to respond timely, plaintiff moved for an order that the request for admissions be deemed admitted. The motion was granted.

Defendant obtained a new attorney, and moved for relief from the order on the basis of the first attorney's neglect. The motion was denied. Defendant then filed a petition for writ of mandate in the Court of Appeal contending the trial court abused its discretion in denying the motion for relief. The Court of Appeal denied the petition with the following order: "The petition for writ of mandate and request for stay and the opposition have been read and considered by Presiding Justice Kremer and Justices Wiener and Huffman. The petition is denied. (Carrol [Carroll] v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 [187 Cal.Rptr. 592, 654 P.2d 775].)"

The case proceeded to trial. Since the court accepted the admissions as conclusive on the question of liability, trial was limited to the issue of damages. The jury, by special verdict, found negligence on both sides, and fixed the total amount of damages at $210,000. It allocated 21 percent of the fault to defendant and the remaining fault to plaintiff.

Defendant appealed. He reiterated the contention raised in the pretrial mandate proceeding that the trial court abused its discretion in denying the motion for relief. A different panel of the same division of the Court of Appeal held that the earlier denial of the petition for writ of mandate "was clearly on the merits," and thus found itself precluded from reconsidering the issue by the doctrine of law of the case. It rejected defendant's remaining contention, and affirmed the judgment. A dissenting justice disagreed that the denial of the writ petition established law of the case, and, as to the merits, would have reversed the judgment.

We granted review on the question whether the Court of Appeal erred in applying the law of the case doctrine based on a summary denial of an earlier petition for writ of mandate. We now reverse.

II. DISCUSSION

A. Background

As noted above, the Court of Appeal did not decide the merits of defendant's contention that the trial court erred in denying relief from the order deeming the request for admissions admitted. It considered itself bound under the doctrine of law of the case by the decision of a different panel which denied a pretrial writ petition raising the same issue. The law of the case doctrine states that when, in deciding an appeal, an appellate court "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal ..., and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular." (Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049; accord, Clemente v. State of California (1985) 40 Cal.3d 202, 211, 219 Cal.Rptr. 445, 707 P.2d 818, and People v. Shuey (1975) 13 Cal.3d 835, 841, 120 Cal.Rptr. 83, 533 P.2d 211.) ¹

The question we explore is when does the doctrine apply to pretrial writ proceedings. To place the issue in perspective, we first briefly explain the procedure an appellate court follows in deciding pretrial writs. When a party files a petition for writ of mandate or prohibition (for our purposes, the two are indistinguishable), the court may proceed in one of three ways.

First, it may deny the petition summarily, either immediately, or after receiving and considering opposition. Such a denial becomes final immediately as to that court. (Cal. Rules of Court, rule 24(a); see Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1023-1024, 269 Cal.Rptr. 720, 791 P.2d 290.)

Second, the court may, "upon ascertaining that the petition is in proper form and states a basis for relief, issue an alternative writ which commands the respondent to act in conformity with the prayer of the petition or, alternatively, show cause before the Court of Appeal why it should not be ordered to so act. The respondent may choose to act in conformity with the prayer, in which case the petition becomes moot; otherwise, the respondent and/or the real party in interest may file a written return setting forth the factual and legal bases which justify the respondent's refusal to do so. The matter is then a 'cause' to be decided in 'writing with reasons stated'.... The issues joined by the petition and return must therefore be decided by the Court of Appeal in a written opinion. If the court concludes that a peremptory writ of mandate should be granted, the opinion will direct that it issue. If not, the petition will be denied." (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-178, 203 Cal.Rptr. 626, 681 P.2d 893 (Palma ), citations and footnotes omitted.)

Third, upon proper notice, the court is authorized by Code of Civil Procedure section 1088 to issue a peremptory writ in the first instance. (Palma, supra, 36 Cal.3d at p. 178, 203 Cal.Rptr. 626, 681 P.2d 893.) As we explained in Palma, "the decision to grant a peremptory writ, unlike the summary denial of a petition seeking a writ, is determinative of a 'cause' "; thus "the order directing that it issue must ... 'be in writing with reasons stated.' " (Id. at p. 178, fn. 6, 203 Cal.Rptr. 626, 681 P.2d 893, citing Cal. Const., art. VI, § 14.)

Here, the Court of Appeal followed the first course; after obtaining and considering opposition, it summarily denied the petition with a brief supporting statement. It issued neither an alternative writ nor a peremptory writ in the first instance. Thus, it did not decide a cause. (See also People v. Medina (1972) 6 Cal.3d 484, 490, 99 Cal.Rptr. 630, 492 P.2d 686 ["It is settled that an appellate court's action denying without opinion a petition for a writ of mandate or prohibition is not the determination of a 'cause' requiring oral argument and a written opinion."].)

B. Pretrial Writs and Law of the Case: the General Rule

It is clear that the law of the case doctrine can apply to pretrial writ proceedings. When the appellate court issues an alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion. The resultant holding establishes law of the case upon a later appeal from the final judgment. (Palma, supra, 36 Cal.3d at p. 182, 203 Cal.Rptr. 626, 681 P.2d 893; Price v. Civil Service Com. (1980) 26 Cal.3d 257, 267, fn. 5, 161 Cal.Rptr. 475, 604 P.2d 1365.) That is not disputed, and it is not at issue here.

By contrast, it is the rule, at least in general, that the doctrine does not extend to summary denials of writ petitions. In People v. Medina, supra, 6 Cal.3d at pages 488-493, 99 Cal.Rptr. 630, 492 P.2d 686, we held that the summary denial of a pretrial writ after the trial court denied a motion to suppress evidence did not constitute law of the case for purposes of a later appeal from the final judgment. The issue turned on the proper interpretation of Penal Code section 1538.5. Although the holding is therefore not directly applicable here, our analysis is instructive:

"Important incidents of the right to appeal from a superior court's judgment are the right to present oral argument in the appellate court [citations] and the right to a written opinion pursuant to the state constitutional requirement that 'Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.' (Cal. Const., art. VI, § 14.) ... [p] It is settled law that an appellate court's action denying without opinion a petition for a writ of mandate or prohibition is not the determination of a 'cause' requiring oral argument and a written opinion.... Only when the appellate court issues an alternative writ or order to show cause does the matter become a 'cause' which is placed on the court's calendar for argument and which must be decided 'in writing with reasons stated.' [Citation.]" (People v. Medina, supra, 6 Cal.3d at pp. 489-490, 99 Cal.Rptr. 630, 492 P.2d 686; see also Resource Defense Fund v. Local Agency Formation Com. (1983) 138 Cal.App.3d 987, 989, fn. 3, 188 Cal.Rptr. 499; People v. Clark (1971) 17 Cal.App.3d 890, 894, fn. 1, 95 Cal.Rptr. 411; cf. People v. Pacini (1981) 120 Cal.App.3d 877, 882-887, 174 Cal.Rptr. 820 [...