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[L.A. No. 31725. Supreme Court of California. June 7, 1984.] RICHARD PALMA, Complainant and Appellant, v. U.S. INDUSTRIAL FASTENERS, INC., et al., Defendants and Respondents (Opinion by Grodin, J., with Bird, C. J., Mosk, Kaus, Broussard and Reynoso, JJ., concurring.) COUNSEL Lee G. Lipscomb, Brian D. Depew and Engstrom, Lipscomb & Lack for Complainant and Appellant.
Werner, Douglas M. Degrave and Stockdale, Peckham, Estes & Werner for Offenders and Respondents. OPINION GRODIN, J. We are hired to think about the scenarios and procedure proper to the issuance, by an appellate court, of a peremptory writ of required in the "very first circumstances," i.e., without previous issuance of an alternative writ.
The petition which offenders filed in the Court of Appeal did not look for a peremptory writ in the very first circumstances, and the court did not notify complainant that such relief was being thought about. The record does not show an invite by the court to participant or genuine celebration in interest to file opposition, and none was filed.
Complainant concerns the propriety of the summary judgment, competing that there are triable issues of product truth, but the preliminary concern we must choose is whether he is prevented from raising that concern now, by factor of his failure to look for evaluation of the appellate court's previous action. [36 Cal.
For reasons we will discuss, a peremptory writ ought not be issued in the first instance by an appellate court unless the participant, and real party in interest, have notification that such a procedure is being considered, or at least asked for, and have either submitted a response on the benefits or been offered the opportunity to do so.
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Considering that the form in which the writ was released in this case combined aspects of both an order and a writ, and due to the fact that the order was not filed as an order or choice of the court, it did not appear, at least, to be a decision topic to the arrangements of rule 28( b) of the California Guidelines of Court.
Reaching the merits of the appeal, we will likewise conclude that because triable problems of fact exist the judgment needs to be reversed. Procedural History On April 25, 1980, Richard Palma, appellant herein, filed a grievance for damages in the Los Angeles County Superior Court. Count one sought healing for accidents calling as accuseds U.S.
( Fasteners), Maynard Greenberg, Victor R. Castro, David Valdez, and "Does 1 through 50 inclusive." That count declared that on May 6, 1979, Fasteners owned a truck which Castro and Valdez drove negligently triggering it to run over and injure Palma. Count 2 supposed negligent hiring and guidance of, and entrustment to, Castro.
Fasteners moved for summary judgment pursuant to Code of Civil Treatment section 437c, fn. 1 supporting the motion with affidavits revealing that Castro, a former employee of Fasteners, had stolen the truck and had actually driven it to the home of Castro's former partner where the injury to Palma occurred. Fasteners asserted that Castro had not been irresponsible, that he was neither a liberal user of the truck nor an agent or worker of Fasteners, and [36 Cal.
Castro likewise moved for summary judgment, but on April 26, 1982, the trial court denied both movements fn. 2 in an order reciting that triable problems of product fact existed on the issue of carelessness. Fasteners and Greenberg thereupon filed in the Court of Appeal their petition for writ of mandate competing that the superior court had abused its discretion in rejecting their motion for summary judgment.
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The petition was filed on July 14, 1982. No alternative writ provided, however on the following day the court released a stay of the superior court proceedings as to the petitioners just. On an undefined date the presiding justice wrote on the cover of the petition an instruction that a "writ issue based on order," listed below which were entered his signature and those of 2 other justices of the division.
The initials of the 3 justices were gone into listed below the attestation of the clerk. In the body of the writ there likewise appeared an order directing: "Pending the finality of this writ, the stay previously released by this court will remain in full force and impact." fn. 3 The exceptional court adhered to the writ on October 7, 1982, by entry of a minute order approving summary judgment.
I. [1a] The Court of Appeal has initial jurisdiction over petitions for writs of mandate, jurisdiction which it shows this court and the remarkable courts. (Cal. Const., art. VI, § 10.) In the exercise of that jurisdiction it may, upon ascertaining that the petition remains in appropriate type and mentions a basis for relief, issue an alternative writ which commands the participant to act in conformity with the prayer of the petition or, alternatively, reveal cause prior to the Court of Appeal why it ought to not be purchased to so act.
4 The respondent might pick to act in conformity with the prayer, [36 Cal. 3d 178] in which case the petition ends up being moot; otherwise, the respondent and/or the genuine party in interest may submit a composed return setting forth the factual and legal bases which justify the respondent's rejection to do so.
Guidelines of Court, rule 56( c).) The matter is then a "cause" to be chosen "in composing with reasons stated," as required by post VI, section 14 of the Constitution. fn. 5 [1b] The problems signed up with by the petition and return must for that reason be chosen by the Court of Appeal in a written viewpoint.
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Medina, supra, 113 Cal. App. 3d 399 [169 Cal. Rptr. 859]. The parties here have actually not argued that concern, nevertheless, and because of our conclusion we have no celebration to reach it.
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