Palma v. U. Industrial Fasteners, Inc.

Decision Date07 June 1984
Citation36 Cal.3d 171,203 Cal.Rptr. 626
CourtCalifornia Supreme Court
Parties, 681 P.2d 893 Richard PALMA, Plaintiff and Appellant, v. U.S. INDUSTRIAL FASTENERS, INC., et al., Defendants and Respondents. L.A. 31725.

Brian D. Depew, Engstrom, Lipscomb & Lack, Los Angeles, for plaintiff and appellant.

Douglas M. Degrave, Stockdale, Peckham, Estes & Werner, Santa Ana, for defendants and respondents.

GRODIN, Justice.

We are called upon to consider the circumstances and procedure appropriate to the issuance, by an appellate court, of a peremptory writ of mandate in the "first instance," i.e., without prior issuance of an alternative writ.

Plaintiff in this negligence action appeals from a summary judgment for defendants which the trial court entered in obedience to such a peremptory writ from the Court of Appeal. The petition which defendants filed in the Court of Appeal did not seek a peremptory writ in the first instance, and the court did not notify plaintiff that such relief was being considered. The record does not reflect an invitation by the court to respondent or real party in interest to file opposition, and none was filed. Finally, instead of an order for the writ, the appellate court issued a document purporting to constitute the writ itself.

Plaintiff questions the propriety of the summary judgment, contending that there are triable issues of material fact, but the preliminary question we must decide is whether he is precluded from raising that question now, by reason of his failure to seek review of the appellate court's prior action. Defendants argue that when plaintiff failed to petition this court for a hearing the "writ" became final, was res judicata, and constituted the law of the case.

For reasons we shall explain, a peremptory writ ought not be issued in the first instance by an appellate court unless the respondent, and real party in interest, have notice that such a procedure is being considered, or at least requested, and have either filed a response on the merits or been given the opportunity to do so. Moreover, the proper procedure is for the appellate court to issue an order or decision calling for issuance of the writ, rather than the writ itself, so as to provide opportunity for review before the writ becomes operative. Since the form in which the writ was issued in this case combined elements of both an order and a writ, and because the order was not filed as an order or decision of the court, it did not appear, at least, to be a decision subject to the provisions of rule 28(b) of the California Rules of Court. Accordingly, we shall conclude that plaintiff's failure to petition this court for a hearing on the writ did not require that the writ be given res judicata effect. Reaching the merits of the appeal, we shall also conclude that because triable issues of fact are present the judgment must be reversed.

Procedural History

On April 25, 1980, Richard Palma, appellant herein, filed a complaint for damages in the Los Angeles County Superior Court. Count one sought recovery for personal injuries naming as defendants U.S. Industrial Fasteners, Inc. (Fasteners), Maynard Greenberg, Victor R. Castro, David Valdez, and "Does 1 through 50 inclusive." That count alleged that on May 6, 1979, Fasteners owned a truck which Castro and Valdez drove negligently causing it to run over and injure Palma.

Count two alleged negligent hiring and supervision of, and entrustment to, Castro. Count three alleged negligent supervision by three "Doe" defendants of premises on which the conduct of certain Does constituted a threat to the safety of others and caused damage to Palma.

Fasteners moved for summary judgment pursuant to Code of Civil Procedure section 437c, 1 supporting the motion with affidavits showing that Castro, a former employee of Fasteners, had stolen the truck and had driven it to the home of Castro's former wife where the injury to Palma occurred. Fasteners asserted that Castro had not been negligent, that he was neither a permissive user of the truck nor an agent or employee of Fasteners, and that as the victim of a theft Fasteners was neither negligent nor liable for the injury caused by the stolen truck.

Castro also moved for summary judgment, but on April 26, 1982, the trial court denied both motions 2 in an order reciting that triable issues of material fact were presented on the issue of negligence.

Fasteners and Greenberg thereupon filed in the Court of Appeal their petition for writ of mandate contending that the superior court had abused its discretion in denying their motion for summary judgment. They prayed for issuance of an alternative writ of mandate and, upon the return thereof, issuance of a peremptory writ of mandate commanding the superior court to set aside its order and enter a new order granting the motion. The petition was filed on July 14, 1982. No alternative writ issued, but on the following day the court issued a stay of the superior court proceedings as to the petitioners only. On an unspecified date the presiding justice wrote on the cover of the petition a directive that a "writ issue as per order," below which were entered his signature and those of two other justices of the division. On July 26, 1982, the clerk of the division issued a peremptory writ commanding the superior court to grant the motion for summary judgment. The initials of the three justices were entered below the attestation of the clerk. In the body of the writ there also appeared an order directing: "Pending the finality of this writ, the stay previously issued by this court shall remain in full force and effect." 3

The superior court complied with the writ on October 7, 1982, by entry of a minute order granting summary judgment. This appeal followed.

I.

The Court of Appeal has original jurisdiction over petitions for writs of mandate, jurisdiction which it shares with this court and the superior courts. (Cal. Const., art. VI, § 10.) In the exercise of that jurisdiction it 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. (§ 1087.) 4 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. (§ 1089; Cal.Rules of Court, rule 56(c).) The matter is then a "cause" to be decided "in writing with reasons as stated," as required by article VI, section 14 of the Constitution. 5 The issues joined by the petition and return must therefore be decided by the Court of Appeal in a written opinion. (People v. Medina, supra, 6 Cal.3d 484, 490, 99 Cal.Rptr. 630, 492 P.2d 686.) 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.

In lieu of an alternative writ, the Court of Appeal is authorized by section 1088 to issue a peremptory writ in the first instance, thus dispensing with the need to await the filing of a return, oral argument, and the preparation of an appellate opinion. 6 Although this procedure was once considered appropriate only when unusual circumstances required immediate action (see Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 93 Cal.Rptr. 719; but see, People v. Turner (1850) 1 Cal. 144, 151), in recent years Courts of Appeal have increasingly resorted to issuance of a peremptory writ in the first instance when 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. (See, e.g., Leach v. Superior Court (1980) 111 Cal.App.3d 902, 169 Cal.Rptr. 42; Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 163 Cal.Rptr. 39; Tahoe Forest Inn v. Superior Court (1979) 99 Cal.App.3d 509, 160 Cal.Rptr. 314.)

A court's authority to issue a peremptory writ in the first instance is limited, however, to those cases in which the opposing parties have received "due notice" 10 days beforehand. (§ 1088.) That notice, like the alternative writ, must be served on each person against whom the writ is sought. (Ibid.) An application for such a writ is required to be accompanied by proof of service upon both the respondent and the real party in interest, and both are given five days within which to file points and authorities in opposition. (§ 1107.) 7

The Code Commissioner's notes to section 1088 indicate that a 1907 amendment to that section "[r]equires a copy of the petition for a writ of mandate to be served with the alternative writ, or with the notice of application for the peremptory writ " (emphasis added), and an early case makes reference to a "relator" (petitioner) who "proceeds by petition and notice for the peremptory writ, without procuring an alternative writ." (People v. Supervisors of San Francisco (1865) 27 Cal. 655, 684, emphasis added; see also People v. Turner, supra, 1 Cal. 144, 151 ["notice of the application having been given, and copies of the papers served, the court may award either an alternative or peremptory mandamus, according to the exigency of the case"].) Thus, it appears that the notice requirement in section 1088 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.

Defendants contend that a formal request for issuance of a peremptory writ in the first instance is unnecessary because a party served with a petition for writ of mandate should be charged, as a...

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