That said, I probably come out somewhere slightly in between the opinion of Chief Justice George, who authors the majority opinion, and Justice Werdegar, who authors the dissent.
The California Supreme Court here is basically discussing what should happen with writ petitions. Usually this is no problem; someone files a writ and it gets a postcard denial. Sometimes they get granted, and even then, this is usually no problem; the Court of Appeal invites briefing, decides the thing, etc. Easy, regular stuff.
But what sometimes happens is that the Court of Appeal wants to act quickly. At which point it issues a Palma notice that basically says: "We're thinking about issuing a writ, and doing so in the first instance. So you better get on it."
But sometimes -- allegedly rarely, but I've seen 'em with increasing frequency -- the Court of Appeal issues what's called a "suggestive" Palma notice. Which is a slight misnomer, since it's more than just a little bit suggestive. Those notices essentially say: "We think this case is so freaking clear that we're thinking about granting writ relief even without an opposition unless the trial court reverses itself. So do you really want to make us pull the trigger?"
When one of those things comes out, guess what often happens? Exactly what happened in the present case; namely, within 24 hours, the trial court reversed itself. Thereby mooting the writ.
The problem, of course, is that all of this often transpires before the respondent has written even a single word in opposition to the writ. They could -- but typically don't -- write an opposition to the writ itself. And there's nothing to "oppose" once the suggestive Palma notice comes out, as the trial court's reversal isn't technically required, but is instead done on its own.
So the California Supreme Court grants review to decide whether this practice is okay, either as a matter of due process or simply as a matter of fairness and equity.
Chief Justice George holds that this practice is okay, but (1) reiterates that it should be rare, and (2) holds that before the trial court sua sponte reverses itself, it needs to provide notice and an opportunity to be heard. Justice Werdegar, by contrast, doesn't think this goes far enough, and would use the California Supreme Court's supervisory powers to ban suggestive Palma notices.
If I had to choose, I think that Justice Werdegar has the better of the argument. Chief Justice George is right that suggestive Palma notices are somewhat akin to tentative rulings, so there's no due process bar to their use. Justice Werdegar rightly responds that with tentatives, you at least have a chance to argue against the tentative to the court that issued it. Whereas here, the adverse party can't even argue its position to the Court of Appeal because the trial court will moot everything by reversing itself in light of the suggestive notice.
This same problem is inherent in Chief Justice George's holding that the trial court has to give notice that it's going to reverse itself. The problem being: What's the point? Sure, this may be "due process" of a sort. But what's a party going to say? Even if they defend the merits in the trial court, the trial court will almost certainly say: "But the Court of Appeal clearly doesn't see it your way." All that this holding does is give a party the opportunity to argue the matter to the lower court -- a court that now knows which way the wind blows because the Court of Appeal has expressly told 'em. Without, mind you, any opposition.
Plus, as a practical matter, if we're going to require (as the California Supreme Court does) that a party be allowed to file an opposition before the lower court reverses itself, why don't we at least let that opposition be filed in the Court of Appeal? Let the rule be: "Before the Court of Appeal issues a suggestive Palma notice, they've got to at least give the adverse party a couple of days to write a brief in a last ditch effort to persuade 'em otherwise." After all, if we're going to delay things, we might as well delay them in the right tribunal -- the one where the briefing at least has a chance of making a difference.
That's probably where I would come out. Admittedly, if forced to choose between the majority and the dissent, I would go with the latter. Especially since I think that Justice Werdegar has a very good point that the possibility of suggestive Palma notices to which parties will not be able to effectively respond may well lead them to inefficiently front-load work and oppose a petition at the outset for fear that this may be their only shot.
But at the same time, I do think there may perhaps be a value to allowing suggestive Palma notices in at least some cases. Sometimes, reversal does seem totally clear and warranted, and delay of anything more than a couple of days a needless waste. So I'm not sure that I would completely agree with Justice Werdegar that we should categorically abolish the option. For me, if we could strongly curtail the use of such a response -- and I'm completely in agreement with the view that several divisions currently go way overboard with suggestive Palma notices -- as well as provide a limited ability of the parties to file an opposition in the Court of Appeal, that's the option I might go with. Even at the risk of creating "Brown Winfield" notices.
But, if forced to choose, I'd be with the 3 here, not the 4. And think they've got clearly the better of the argument.
