Can they do that??

Today's Appellate Zealots column in the DJ comes from Susan Horst, who knows something about writs (having served as a writ attorney in the 1st District for over 30 years). Her piece, The New 'Non-Summary Summary Denial,' focuses on People v. Superior Court (Lara) (2017, 4th Dist. Div. 2) 9 Cal.App.5th.

In situations where both a writ petition and a post-judgment appeal are permitted, the Courts of Appeal traditionally had two options to resolve writ petitions. First, they could issue an order to show cause or alternative writ, followed by oral argument and a written opinion granting or denying the petition. A ruling after such an order became law of the case, and the issue could not be raised again on appeal.
Second, they could summarily deny the petition, sometimes with explanation. A summary denial, with or without explanation, was not law of the case.

In 1984, a third option was approved: "a peremptory writ to the trial court - no alternative writ or order to show cause, no chance for opposition from real party in interest, no oral argument, and no written opinion - but still law of the case." See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.

In 2010, another option was approved: "strongly worded" alternative writs to suggest the trial court correct its mistake on its own. "If the trial court changed its order, the petition was summarily denied as moot. Again, the Supreme Court imposed procedural protections - a trial court must allow argument prior to changing an order. Brown, Winfield & Canzoneri, Inc. v. Superior Court, 47 Cal. 4th 1233 (2010)."

Recently, the 4th District invented a yet new tool - the "non-summary summary denial." This matters because a non-summary summary denial creates law of the case and a decision on the merits, but from proceedings that lack all the due process protections specified by Palma and related cases. The new procedure may create confusion and costly future litigation concerning whether the right to appeal is foreclosed.
Division Three of the 4th District first introduced this new tool in Frisk v. Superior Court, 200 Cal. App. 4th 402 (2011). Just last month, Division Two of that court followed with Lara.

But with this new "non-summary summary denial" procedure, the Court of Appeal has simply declared - with no statutory support - that appellate courts may create law of the case without a full opportunity to litigate the issues first. Whether the "non-summary summary denial" is a valid timesaver and new tool for the Courts of Appeal is a question important enough to writ practice for the California Supreme Court to clarify its contours. Hopefully, soon.