Opinion
No. B137690.
Filed May 1, 2000. Certified for Publication.
Original Proceeding. Publication request denied, No. BC178385.
Brian M. Brown, for Petitioner.
No appearance on behalf of Respondent.
Gibson, Dunn Crutcher and John J. Swenson, for Real Parties in Interest, Aetna U.S. Healthcare Inc. and Aetna U.S. Healthcare of California, Inc.
Real Parties in Interest and defendants, Aetna U.S. Healthcare Inc. and Aetna U.S. Healthcare of California, have filed a request for publication of an order summarily denying a mandate petition filed by petitioner, Kathryn Provost. We conclude that the procedure for requesting publication of unpublished opinions in rule 978(a) of the California Rules of Court is inapplicable to an order summarily denying a mandate petition where no order to show cause or alternative writ has been issued and oral argument has not been held. As a result, we deny the request and decline to forward it to the Supreme Court as provided by rule 978(a).
All future references to a rule are to the California Rules of Court.
On August 26, 1999, the respondent court denied petitioner's motion for leave to file a fifth amended complaint in her wrongful termination lawsuit. On December 22, 1999, petitioner filed a mandate petition which challenged the August 26, 1999, denial of the amendment motion. On January 6, 2000, we summarily denied the mandate petition in a two and one-half page order. ( Provost v. Superior Court (Jan. 6, 2000) B137690 [nonpub. order].) On February 23, 2000, real parties in interest filed a request for publication of the January 6, 2000, order summarily denying the mandate petition. On March 7, 2000, petitioner, who did not file a petition for review, requested that the two and one-half page order not be published. A plaintiff in an unrelated federal wrongful termination action has requested that the January 6, 2000, two and one-half page order not be published.
The applicable procedure for seeking publication of unpublished opinions is set forth in rule 978(a) which states in its entirety: "(a) [Request procedure; action by court rendering opinion] A request by any person for publication of an opinion not certified for publication may be made only to the court that rendered the opinion. The request shall be made promptly by a letter stating the nature of the person's interest and stating concisely why the opinion meets one or more of the publication standards. The request shall be accompanied by proof of its service on each party to the action or proceeding in the Court of Appeal. If the court does not, or by reason of the decision's finality as to that court cannot, grant the request, the court shall transmit the request and a copy of the opinion to the Supreme Court with its recommendation for disposition and a brief statement of its reasons. The transmitting court shall also send a copy of its recommendation and reasons to each party and to any person who has requested publication." Clearly, rule 978(a) applies when there is a request to publish an "opinion."
We conclude that the January 6, 2000, two and one-half page order in the present case summarily denying the writ petition did not constitute an "opinion" within the meaning of rule 978(a). When a writ petition is filed, the California Supreme Court described the procedure that typically occurs in this state's courts as follows: "When an appellate court considers a petition for writ of mandate or prohibition, the court may: (1) deny the petition summarily, before or after receiving opposition; (2) issue an alternative writ or order to show cause; or (3) grant a peremptory writ in the first instance, after compliance with the procedure set forth in Palma [v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,] 178-180. ( Kowis v. Howard (1992) 3 Cal.4th 888, 893-894 ; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024 .)" ( Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239-1240). In Lewis v. Superior Court, supra, 19 Cal.4th at page 1241, the Supreme Court described what occurs if a trial court fails to comply with an option in the alternative writ as follows: "Unless the court summarily denies the petition or the respondent performs the act specified in an alternative writ, the matter becomes a `cause' that must be decided `in writing with reasons stated.' ( Palma [v. U.S. Industrial Fasteners, Inc.], supra, 36 Cal.3d at p. 178 fns. 5 and 6; Cal. Const., art. VI, § 14.)" In Kowis v. Howard (1992) 3 Cal.4th 888, 895, the California Supreme Court held that ordinarily a short statement of reasons or a citation which explains grounds for the denial of the writ petition is not treated as an opinion under this state's law. Although the California Supreme Court was discussing the law of the case doctrine, its analysis is also is instructive in terms of what constitutes an opinion. The California Supreme Court held: "A short statement or citation explaining the basis for the summary denial does not transform the denial into a decision of a cause entitled to law of the case effect. As one court has explained: `[O]ur former denial of a petition for a writ of prohibition to stop the inquiry below was a summary denial without issuance of an order to show cause and without oral argument. While it is true that the court accompanied the summary denial with an explanatory comment, we do not regard that comment as a formal opinion (Cal. Const., art. VI, § 14) precluding this court from considering the issue anew upon this hearing at which the parties have had an opportunity to brief and argue the case in full. [Citations.]' . . . ( Ibid.) Similarly, in People v. Medina (1972) 6 Cal.3d 484, 490, the Supreme Court noted: "It is settled law that an appellate court's action denying without opinion a petition for a writ of mandate or prohibition is not the determination of a `cause' requiring oral argument and a written opinion. Rather, such minute order denials are made in chambers in the absence of the parties. Only when the appellate court issues an alternative writ or order to show cause does the matter become a `cause' which is placed on the court's calendar for argument and which must be decided `in writing with reasons stated.' ( Funeral Dir. Assn. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104, 106 .)" (Accord, Kowis v. Howard, supra, 3 Cal.4th at p. 894-895.) Finally, the California Supreme Court has repeatedly held that the summary denial of a writ petition does not constitute the law of the case. ( Lewis v. Superior Court, supra, 19 Cal.4th at p. 1259; Kowis v. Howard, supra, 3 Cal.4th at pp. 894-895.)
As noted previously, rule 978(a) applies to a request to publish an "opinion." Based on the foregoing summary of California law, we conclude the summary denial of a writ petition without issuance of an alternative writ or an order to show cause and an opportunity for oral argument, even with a statement of reasons, is generally not an "opinion" within the meaning of rule 978(a). In the present case, the two and one-half page summary denial order was filed without the prior issuance of an alternative writ or an order to show cause. Further, no oral argument was held. Therefore, the two and one-half page order was not an opinion for purposes of rule 978(a). Because rule 978(a) is inapplicable to the present matter, we may not forward the publication request to the Supreme Court as would otherwise occur in the case of an unpublished opinion. If the parties seriously desire to have our brief two and one-half page January 6, 2000, summary denial order published, they may file a petition for review from this order.
We concur:
ARMSTRONG, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.