Monday, February 1, 2010

Suggestive Palma Notices Survive

Courts of Appeal may continue to issue suggestive Palma notices, the California Supreme Court held today. But trial courts must give the parties notice and an opportunity to be heard before following the "suggestions."

From Brown, Winfield & Canzoneri v. Superior Court (S156598):

"[W]e conclude that it is not improper for an appellate court to issue a suggestive Palma notice, and that it may do so without first having received or solicited opposition from the real party in interest. A suggestive Palma notice is not the equivalent of a peremptory writ, which requires both notice and an opportunity for opposition before the writ may issue in the first instance. Although a suggestive Palma notice may be styled as an order, such a notice in no way commands or otherwise obligates the lower court to follow the course of action suggested by the appellate court. Rather, a suggestive Palma notice is analogous to a tentative ruling, in that it sets forth the appellate court’s preliminary conclusions with respect to the merits of the writ petition — conclusions that, similar to those reflected in a tentative ruling, are not binding upon either the trial court or the appellate court.

It appears, however, that upon receiving a suggestive Palma notice from an appellate court, a trial court often will quickly vacate, modify, or otherwise reconsider the challenged ruling in order to conform its action to the views expressed in the notice — all before the party adversely affected has filed (or has had an opportunity to file) any opposing papers in response to the Palma notice. When the trial court takes such action, the Court of Appeal will dismiss the writ petition.

We conclude that if a trial court decides on its own motion to revisit its interim ruling in response to a suggestive Palma notice — an action within its inherent authority (see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109 (Le Francois)) — that court must inform the parties of its intent to do so, and provide them with an opportunity to be heard. (See id. at pp. 1108-1109.) Requiring adherence to this procedure is consistent with our relevant case law, and reasonably balances the interests of conservation of scarce judicial resources with the parties’ right to notice and an opportunity to be heard."