Lewis v. Superior Court

• Decision Date: 08 February 1999
• Docket Number: No. S061240,S061240
• Citation: 970 P.2d 872,19 Cal.4th 1232,82 Cal.Rptr.2d 85
• Court: California Supreme Court
• Parties: , 970 P.2d 872, 99 Cal. Daily Op. Serv. 1031, 1999 Daily Journal D.A.R. 1291 James T. LEWIS, Petitioner, v. The SUPERIOR COURT of San Bernardino County, Respondent; Chester Green, et al., Real Parties in Interest

Page 85

82 Cal.Rptr.2d 85

19 Cal.4th 1232, 970 P.2d 872, 99 Cal. Daily Op. Serv. 1031,

1999 Daily Journal D.A.R. 1291

James T. LEWIS, Petitioner, v. The SUPERIOR COURT of San Bernardino County, Respondent Chester Green, et al., Real Parties in Interest.

No. S061240.

Supreme Court of California

Feb. 8, 1999.

Rehearing Denied March 31, 1999.

Howard, Moss, Loveder, Strickroth & Walker, Margaret M. Parker, James E. Loveder and Daniel G. Pezold, Santa Ana, for Petitioner.

No appearance for Respondent.

McIntire Law Corporation, Christopher D. McIntire and Michael V. McIntire, Big Bear Lake, for Real Parties in Interest.

Michael P. Fudge, Public Defender, and John Hamilton Scott, Deputy Public Defender, for Los Angeles County as Amicus Curiae on behalf of Real Parties in Interest.

Jay-Allen Eisen, Sacramento; Barry R. Levy, Encino; Michael M. Berger, Santa Monica; Peter W. Davis, San Francisco; Rex S. Heinke, Los Angeles; Wendy C. Lascher, Ventura; and Gerald Z. Marer, San Jose, for the California Academy of Appellate Lawyers as Amicus Curiae on behalf of Real Parties in Interest.

GEORGE, C.J.

When an appellate court considers a petition for a writ of mandate or prohibition, it is authorized in limited circumstances to issue a peremptory writ in the first instance, without having issued an alternative writ or order to show cause. (Code Civ. Proc., §§ 1088, 1105; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, 23 Cal.Rptr.2d 397, 859 P.2d 96 (Alexander ); Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178, 203 Cal.Rptr. 626, 681 P.2d 893 (Palma ).) In Palma, we held that even in such circumstances, a peremptory writ of mandate or prohibition should not issue in the first instance unless the adverse parties have received notice that such a writ in the first instance is being sought or considered. In addition, absent exceptional circumstances requiring immediate action, the court 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, 203 Cal.Rptr. 626, 681 P.2d 893.) In this case we decide whether, in those limited situations where the accelerated Palma procedure is appropriate, a court must provide an opportunity for oral argument before issuing a peremptory writ in the first instance.

As we shall explain, the statutes and rules governing peremptory writs of mandate and prohibition do not require an appellate court to afford the parties an opportunity for oral argument before the court issues such a writ in the first instance, and in the past this court and the Courts of Appeal have issued peremptory writs in the first instance without holding oral argument. Moreover, the reasoning underlying our decisions conferring a right to oral argument on appeal does not apply with equal force in the narrow circumstances in which a court appropriately may decide a cause by issuing a peremptory writ of mandate or prohibition in the first instance, and we decline to extend those decisions to such proceedings. Accordingly, we conclude that in the limited situations in which an appellate court may issue a peremptory writ of mandate or prohibition in the first instance, the court may do so without affording the parties an opportunity for oral argument. Our holding in this regard applies only to those proceedings in which an appellate court properly issues a peremptory writ of mandate or prohibition in the first instance, and does not affect the right to oral argument on appeal or after the issuance of an alternative writ or order to show cause.

We further conclude that the Court of Appeal's opinion directing the issuance of a peremptory writ of mandate in this case satisfies the requirement that "[d]ecisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated." (Cal. Const., art. VI, § 14.)

I

Real party in interest Chester Green sustained personal injuries when the horse he was riding stumbled on a road owned by petitioner James T. Lewis. Green sued Lewis for negligence, alleging that Lewis failed to maintain the road in a safe condition, thereby causing Green to fall to the ground when his horse stepped into a rut. Chester Green's wife, real party in interest Robin Green, alleged a cause of action for loss of consortium.

Lewis moved for summary judgment on the ground the Greens' claims are barred by the recreational use immunity found in Civil Code section 846, which provides that landowners generally have no duty to keep their land safe for use by others for any recreational purpose. ¹ In opposition, the Greens argued that there is a question of fact regarding whether Chester Green was using the road for a recreational purpose. They asserted that because the only means of access to their property is over Lewis's road, Green was not using that road for recreational horseback riding, but rather merely to reach his own property. The superior court denied the summary judgment motion, finding a triable issue of fact regarding whether Green entered or was using Lewis's property for a recreational purpose at the time of the accident.

Lewis filed a petition for writ of mandate, prohibition, or other appropriate relief in the Court of Appeal. He requested that the court issue an alternative writ commanding the superior court to vacate its order denying the motion for summary judgment and to enter an order granting that motion, or to show cause before the Court of Appeal why it should not do so and why a peremptory writ should not issue. Lewis further requested that on the return of the alternative writ and a hearing on the order to show cause, the Court of Appeal issue a peremptory writ directing the superior court to grant his motion for summary judgment. Finally, Lewis asked the Court of Appeal to grant such other relief as the court deemed just and proper.

Before receiving opposition from the Greens, the Court of Appeal filed and served a document that stated in relevant part: "Good cause appearing therefor, [p] Real party is invited to file a response to the petition for writ of mandate/ prohibition on file herein.... Unless good cause is shown, the court may issue a peremptory writ." Accordingly, the Greens filed an "Opposition to Petition for Writ of Mandate/Prohibition; Or Request for Alternative Writ," which contained 30 pages of points and authorities. Their opposition included a separately numbered and captioned argument explaining that the issuance of a writ of mandate in the first instance would establish law of the case and finally dispose of their claims, precluding them from raising the issue on appeal; "[y]et, in the ordinary course of appeal, the Greens would be entitled to a complete briefing schedule and oral argument." Therefore, they requested that, if the Court of Appeal intended to entertain the petition further, "an alternative writ be issued, a briefing schedule established, and the case calendared for oral argument."

Four days after the Greens filed their opposition, and without issuing an alternative writ or order to show cause, or hearing oral argument, the Court of Appeal filed a three-page written decision directing the issuance of a peremptory writ of mandate, instructing the superior court to set aside its order denying Lewis's motion for summary judgment and to enter a new order granting the motion. The decision begins with the following comments: "The court has read and considered the petition and the opposition thereto which we conclude adequately address the issues raised by the petition. We have reviewed the record and concluded that no factual dispute exists. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of an alternative writ would add nothing to the presentation already made. Accordingly, the issuance of a peremptory writ in the first instance is appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178, 203 Cal.Rptr. 626, 681 P.2d 893; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, 23 Cal.Rptr.2d 397, 859 P.2d 96.)" The Court of Appeal's decision does not address specifically the Greens' request for complete briefing and oral argument.

The Greens then filed a "Petition for Judicial Rehearing; Request for Oral Argument." They asserted, among other things, that the Court of Appeal's "abbreviated opinion" fails to discuss the evidence and legal authority supporting the trial court's ruling, and that it improperly weighs disputed facts. The Greens also noted the "anomalous situation" that they would have been afforded more complete consideration of their arguments through direct appeal, including full briefing and oral argument, had the superior court ruled against them and granted Lewis's motion for summary judgment. The petition for rehearing requested "the judicial consideration routinely provided by the Appeals Division of this Court...." The Court of Appeal denied without comment the petition for rehearing.

The Greens petitioned for review, raising several issues regarding both the procedural and substantive questions involved in the Court of Appeal's resolution of the petition for writ of mandate. We granted the petition for review but limited briefing and oral argument to the following issues: "(1) Is there a right to oral argument prior to issuance of a peremptory writ in the first instance? (2) Does the Court of Appeal decision satisfy the requirements of article VI, section 14, of the California Constitution ('Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.')?" In light of our order limiting the issues on review, we have no occasion to consider whether the Court of Appeal properly determined that this was an appropriate case for the issuance of a peremptory writ in the...