Bay Development, Ltd. v. Superior Court

LUCAS, C. J.

I concur, but I write separately regarding the application of California Rules of Court, rule 24(a). As the majority notes, rule 24(a) contains an exception to the usual rule that a Court of Appeal decision becomes final 30 days after filing: “the decision becomes final as to that court immediately after filing upon the denial of a petition for a writ within its original jurisdiction or a writ of supersedeas, without issuance of an alternative writ or order to show cause.” (Italics added.) In this case, no alternative writ or order to show cause issued. Although I agree with the majority’s result on this question in this case, I cannot join in concluding that a Court of Appeal order setting a case for oral argument generally may serve as the equivalent of an alternative writ or order to show cause.

Although we have deemed issuance of a peremptory writ in the first instance a “rarity” (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 179 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ]), the Court of Appeal division here apparently follows a practice of not issuing alternative writs or orders to show cause as a matter of course. In Palma, supra, we explored the role of the issuance of an alternative writ and of the notice required when issuance of a peremptory writ in the first instance has been requested and is being contemplated. (36 Cal. 3d at pp. 179-180.) As we observed, the alternative writ’s issuance “conveys a tentative opinion of the court that a peremptory writ might be in the offing, while [a request for peremptory writ] reflects merely the hopes of a litigant.” (Id., at p. 179.) We observed that “in lieu of an alternative writ, the Court of Appeal is authorized by [Code of Civil Procedure] section 1088 to issue a peremptory writ in the *1036 first instance, thus dispensing with the need to await the filing of a return, oral argument and the preparation of an appellate opinion.” (Id., at p. 178, fn. omitted, italics added.)

Despite these clearly drawn distinctions, since at least August 10, 1982, rule 3 of the Local Rules of the Fourth Appellate District has expressly recited that “Division One will accept for filing only those petitions for writs of mandate and prohibition which pray solely for a peremptory writ. If meritorious, upon due notice by petitioners, the court can grant them in the first instance. The court will not accept for filing petitions praying for alternative writs." (Ct. App., Fourth Dist., Local Rules, rule 3 [West’s Cal. Rules of Court (State ed. 1990) p. 684], italics added.) Appellants who seek extraordinary relief in the Fourth Appellate District thus enter a separate land with independent rules whose singular nature causes the very problem with which we are here confronted.

Although the applicable local rules clearly forbid filing of requests for alternative writs or orders to show cause, the Internal Operating Practices and Procedures of Division One of the Fourth Appellate District expressly provide that when a petition for writ is filed and a response received or time therefor has elapsed, “the writs attorney will prepare a written presentation to the panel of judges to determine if the matter should be made a cause by issuing an alternative writ, order to show cause, or, in appropriate cases, whether a peremptory writ should issue in the first instance, [fl] If the matter becomes a cause, it will be assigned to a member of the panel for the preparation of an opinion ....[][] Once the writ has been assigned to a judge . . . , it will be placed on calendar if oral argument is desired by the court or by the parties.” (Ct. App., 4th Dist., Div. 1, Internal Operating Practices & Proc., IV, Original Proceedings [West’s Cal. Rules of Court (State ed. 1990) pp. 725-726].) In this case, of course, no peremptory writ was issued. The only provision for calendaring writ matters contemplated in the Internal Operating Practices and Procedures indicates that a matter becomes a “cause” only on issuance of an alternative writ or order to show cause and will be calendared only after becoming a cause.

This confusion about the effect of an order scheduling oral argument was further exacerbated by the Court of Appeal’s consideration of the merits of a petition for rehearing. Rule 24 of the California Rules of Court provides that “When a decision of a reviewing court is final as to that court, it is not thereafter subject to modification or rehearing by that court . . . .” The Court of Appeal’s action here further muddied the procedural waters.

In my view, the fault lies not so much with the parties as with the Court of Appeal because of its failure to conform its practices with those required *1037 statewide by the general procedures and rules governing writ practice. (See Palma, supra, 36 Cal.3d at pp. 177-178 [describing exercise of writ jurisdiction in Court of Appeal].) Because the confusion was engendered by inconsistent and incompatible practices and rules by the court, I concur with the majority’s conclusion that we have jurisdiction in this case. It appears it would have been a futile, if not fatal, gesture for the petitioner to have filed a request for issuance of an alternative writ or order to show cause. The court’s action in calendaring the matter made it appear as if the matter had become a “cause”—and the court’s own internal operating procedures indicated that a writ matter became a cause only upon issuance of an alternative writ or order to show cause. 1 Under the circumstances, I therefore agree that we must treat the proceeding here as if an alternative writ or order to show cause had issued and the petition for review thus was timely filed.

Where I depart from the majority is in its intimation that the Court of Appeal’s procedures here may be acceptable, albeit not preferable. Thus, the majority suggests that “To avoid any possible confusion, in the future all Courts of Appeal should follow the contemplated statutory procedures by issuing an alternative writ or order to show cause before setting a writ matter for oral argument.” (See maj. opn., ante, at p. 1025, fn. 8.) Instead, in my view, the procedures described in the local rules precluding requests for alternative writs or orders to show cause are inconsistent with statute and rule and should be disapproved. The language of rule 24 of the California Rules of Court should be read according to its plain meaning: a denial of a petition for writ when no alternative writ or order to show cause has been issued is final immediately. 2 Our holding here must stand for the proposi *1038 tion that, henceforth, parties and lower courts should be on notice pursuant to rule 24(a) that denial of a petition for writ in which no alternative writ or order to show cause has issued requires that a petition for review be filed within 10 days of the filing of the denial, regardless of the length or complexity of any Court of Appeal opinion or order that may be issued in regard thereto.

Eagleson, J., and Arabian, J., concurred.

Reading the two applicable local rules together leaves one to ponder what purpose is served by a refusal to accept petitions requesting alternative writs. It appears from its internal operating procedures that the court contemplates issuing alternative writs and holding argument when it wishes to consider matters fully on their merits before deciding whether or not to issue a writ. If it wishes to issue a peremptory writ in the first instance, it can give Palma notice and do so. If it wishes to deny summarily, it may do so as well. The preclusion of alternative writ prayers apparently was not intended to limit the court’s issuance of such writs in undefined instances. The court’s action here in scheduling oral argument without issuance of an alternative writ amounted in effect to an unfortunate and unnecessary hybrid of alternative writ procedures and Palma notice procedures.

The majority describes another situation in which rule 24(a) had a harsh and anomalous effect. (Maj. opn., ante, at p. 1025, fn. 7.) Under the rule, a criminal appeal and consolidated habeas corpus petition had different dates of finality for purposes of filing a petition for review. The existing language was not read “creatively” to cure the problem; instead, rule 24(a) was amended to expressly provide the same date of finality.

An amendment to the rule could cover the situation faced by petitioner here and provide that when the Court of Appeal holds argument and issues a full written opinion, the decision is final 30 days after the filing of the opinion as is true in an ordinary appeal. I am not convinced such an amendment is necessary. Confusion can be avoided by simply adhering to the plain language of the rule and by requiring the lower courts, in their local procedures, to adopt methods that comport with generally applicable statutes and rules.

Because the majority opinion will bar recovery for breach of a contractual promise to perform, whether express or implied, the fact the warranty in this case was implied is not sig-

*1039 nificant. Moreover, if a party seeking recovery has proved the existence of a contractual provision, his right to recover does not depend on whether the provision was express or implied.

The majority acknowledges that settlement does not bar enforcement of an express indemnity provision. (Maj. opn., ante, at pp. 1031-1032.)