Following up on Avenida San Juan Partnership v. City of San Clemente: Judges' reluctance to issue a writ prior to final judgment demonstrates need for clarification of Palma footnote

March 8, 2012

By Matthew Hinks

In an earlier article on the California Land Use Blog, I wrote about the recent decision in Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), in which the court of appeal affirmed in large part a verdict in favor of a developer granting a writ of mandate and awarding damages as a result of a finding of a partial regulatory taking given what the court viewed as the "spot-zoning" of plaintiff's property. I noted there that the trial court conducted its proceedings in two phases: the writ of mandate phase and the damages trial on the inverse condemnation claim. I also noted that the trial court issued the writ of mandate while the damages claim remained pending and before a final judgment was entered.


Though the Avenida San Juan Partnership court did not discuss this aspect of the case, I mentioned that trial courts are often reluctant to issue writs of mandate before a final judgment is entered. This can have a dramatic impact on a developer's case against a local agency or city.


In a typical lawsuit filed by a developer to challenge the denial of, or a condition imposed upon, a land use entitlement, the developer's complaint will often include a petition for writ of mandate, generally brought under Cal. Civ. Proc Code § 1094.5 (though the Avenida San Juan Partnership case was one in traditional mandamus), and claims for damages sustained as a result of the denial or condition based upon a takings, denial of procedural and/or substantive due process, denial of equal protection or some other theory. Those claims are generally bifurcated and the writ cause of action tried first.


If the trial court agrees with the developer and determines that a writ of mandate is appropriate and should issue, the developer is left with a difficult decision. Pursuing the damage claims means foregoing issuance of the writ of mandate until the damage claims are disposed of, which, unless the city or local agency defending the action chooses to voluntarily comply, could mean many months (or even longer) in project delays. The developer's other option is to simply dismiss the damages claims, which is often unsatisfactory for obvious reasons.


The source of these trial judge's reluctance to issue a writ prior to a final judgment is the California Supreme Court's decision in Palma v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171 (l984). Palma is a notable case especially for appellate lawyers. The Palma Court outlined the circumstances in which an appellate court may grant accelerated writ relief in the form of a peremptory writ in the first instance, in lieu of following the usual procedures associated with the issuance of an alternative writ or an order to show cause. The Court held that, at a minimum, a peremptory writ of mandate or prohibition may not issue in the first instance without notice (now generally referred to as a Palma notice) that the issuance of such a writ in the first instance is being sought or considered. In addition, the Court emphasized that an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected.


Palma, however, contains a strange, and all but undecipherable unfortunate Footnote 9, which reads in its entirety:

A superior court may direct that a writ of mandate issue contemporaneously with rendition of the judgment (see Weisman v. Board of B. & S. Commrs. (1927) 85 Cal.App. 493 [ 259 P. 768]), and in one recent case in which an appeal was attempted from a superior court writ of mandate, the Court of Appeal suggested that the writ issued in that case might be itself treated as a judgment. (Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444, 456 [ 129 Cal.Rptr. 216].) However, section 1095 requires that a judgment precede issuance of a writ of mandate. Therefore, when that judgment is rendered by a Court of Appeal both the California Constitution which authorizes this court to transfer a cause pending in a Court of Appeal to itself before the decision becomes final (art. VI, § 12) and the Rules of Court preclude issuance of the writ before the judgment or order directing that it issue has been filed and has become final.

The mystery of the Palma footnote is that Section 1095 of the California Code of Civil Procedure has nothing to say about entry of judgment and the timing of the issuance of a writ. In addition, the footnote is also plainly dicta at least to the extent it discusses writs in the superior courts. Nevertheless, given the clearness of the directive -- "a judgment [must] precede issuance of a writ of mandate" -- it is often enforced.


Notably, a prior case in the court of appeal (ignored by the Palma Court) concerning superior court writs -- Healy v. Stationers Corp., 228 Cal. App. 2d 601 (1964) -- had held that it is "well settled that a peremptory writ may properly issue after announcement of judgment and before final entry thereof." Some commentators have suggested that Healy is controlling on the issue and distinguish the Palma footnote on the basis that it deals only with appellate court writs. That distinction is not entirely satisfactory though in that the plain context of the Palma footnote is superior court writ practice.


There are certainly good arguments on both sides of the issue. The "one final judgment rule" precludes an appeal from an order directing the issuance of a writ of mandate. Thus, if the writ were to issue, an entity on the losing end of such an order would be required to comply with the writ without the right of an appeal. On the other hand, the entity could always seek a stay or a writ in the court of appeal to either overturn or suspend the order. Moreover, if the trial court has found that the entity subject to the order has abused its discretion or acted arbitrarily or capriciously (generally the necessary precursors for a finding in support of the issuance of a writ of mandate) why shouldn't the petitioner be entitled to immediate relief?


In any event, clearly there are fixes to the predicament, such as recognizing the right to appeal from an order granting the writ or from the issuance of the writ itself. Regardless, given the uneven practice in the superior courts, as reflected most recently by the Avenida San Juan Partnership case, the situation cries out for guidance from the appellate courts.