Lewis v. Superior Court , 82 Cal. Rptr. 2d 85 ( 1999 )

KENNARD, J., Dissenting.

The majority holds that when a Court of Appeal grants a petition for a peremptory writ of mandate finally terminating a lawsuit, it may do so without giving the parties an opportunity for oral argument. I disagree.

Both the Code of Civil Procedure and our state Constitution guarantee a right to oral argument. Code of Civil Procedure section 1088 states that before a court may grant a mandate petition, “[t]he case must be heard by the court, whether the adverse party appears or not.” (Italics added.) Although this provision’s meaning is debatable, it is best interpreted, using normal rules of statutory construction, as recognizing a right to oral argument. Under the state Constitution, as construed by this court, there is not even room for debate. Our Constitution guarantees an opportunity for oral argument before a Court of Appeal renders a judgment. Because a decision granting a petition for writ of mandate is & judgment, a Court of Appeal may not grant a mandate petition without giving the parties a chance to argue their positions before the Court of Appeal justices who will render the decision.

The right to oral argument holds a cherished position in our legal tradition, and rightly so. As our society becomes increasingly depersonalized, it becomes ever more important to keep those methods of procedure that personalize and humanize the administration of justice. When advocates appear in a courtroom to explain their positions to the judge or judges who decide their case, the judicial process loses its arid, abstruse, and remote character. A lively interchange between counsel and the bench, not possible by the submission of written briefs, may lead a judge to rethink his or her position and even alter the outcome of the proceeding. As Justice Harlan of the United States Supreme Court has put it, there is “no substitute” for this “Socratic method of procedure in getting at the real heart of an issue and in finding out where the truth lies.” (Harlan, What Part Does the Oral Argument Play in the Conduct of an Appeal? (1955) 41 Cornell L.Q. 6, 7.)

I. Facts and Proceedings

Plaintiff Chester Green suffered serious injuries when the horse he was riding stumbled and plaintiff was thrown to the ground. The accident occurred on a deeply rutted dirt road that crossed land owned by defendant James T. Lewis.

Plaintiffs Chester and Robin Green sued Lewis, alleging that the dangerous condition of the road on Lewis’s land caused Chester Green’s injuries. Plaintiffs sought damages for personal injury (Chester) and loss of consortium (Robin). In his answer to the complaint, Lewis claimed the protection of Civil Code section 846, which states that, with certain exceptions, an owner of property “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose”; it defines “recreational purpose” as including “animal riding.”

Lewis moved for summary judgment, arguing that the immunity granted by Civil Code section 846 barred plaintiffs’ action. The trial court denied the motion, explaining in its statement of reasons that, because Lewis’s road provided the only access to plaintiffs’ property, there was a triable issue concerning whether, at the time of the accident, Chester Green was using the road for a “recreational purpose” within the meaning of Civil Code section 846.

Lewis sought review in the Court of Appeal by a petition for a writ of mandate. The Court of Appeal invited plaintiffs to file a response to the petition, warning that a peremptory writ might issue “[ujnless good cause is shown.” Plaintiffs filed timely opposition to the petition and requested oral argument if the Court of Appeal did not summarily deny the petition. Four days after the filing of plaintiffs’ written opposition, the Court of Appeal, without benefit of oral argument, rendered a decision granting a peremptory writ of mandate that directs the trial court to vacate its order denying the motion for summary judgment and to enter a new order granting summary judgment for defendant Lewis.

To determine whether the Court of Appeal erred in denying plaintiffs an opportunity for oral argument, and to determine whether the Court of Appeal had adequately stated the reasons for its decision, this court granted plaintiffs’ petition for review.

II. Statutory Analysis

The Code of Civil Procedure specifies the procedural requirements that litigants and courts must satisfy before a writ of mandate may issue. Section 1088 permits a court to issue a writ of mandate “in the first instance”—that is, without issuing an alternative writ or an order to show cause—but it states that “[t]he writ cannot be granted by default” and that “[t]he case must be heard by the court, whether the adverse party appears or not.” (Italics added.)

As the majority points out, when used in a statute or other legal context to refer to an action by a court, the term “heard”—and its cognate forms such as “hear” or “hearing”—may have different meanings. It may mean a formal session of the court in a courtroom or in chambers at which the parties are represented and are permitted to address the court, for purposes such as oral argument or the submission of evidence. Or the term may, on occasion, refer simply to a court’s private consideration of the merits of a motion or a case. (Maj. opn., ante, at p. 1247.)

For a number of reasons, the term “heard” in Code of Civil Procedure section 1088 is better understood as requiring a formal court session at which the parties are afforded the opportunity for oral argument. For one thing, this is the more usual meaning of the term when applied in a legal context to describe a court’s action in relation to a motion or a lawsuit. To say that a particular judge “heard” a case most often means that the judge was physically present in a courtroom at a formally convened session of court at which the judge listened to and observed the parties or their legal representatives as they presented argument or evidence, or both, in support of their respective positions.

An examination of the term “heard” in the context of Code of Civil Procedure section 1088 confirms this interpretation. Section 1088 provides that a court may not grant a writ of mandate “by default,” after which this sentence appears: “The case must be heard by the court, whether the adverse party appears or not.” To grant a writ of mandate, therefore, a default— meaning the failure of the respondent or real party in interest to file a pleading in response to the petition—is insufficient and a hearing is essential. That the required hearing is a court session, and not merely a private consideration of the merits of the petition, is shown by the qualifying phrase, “whether the adverse party appears or not.” Logically and grammatically, the appearance to which this phrase refers must be an appearance at the hearing. Thus, the hearing must be one at which it is possible for parties to appear. A duly convened session of court is such a hearing; a court’s private consideration of a petition’s merits is not.

This interpretation is further confirmed by examining other sections of the Code of Civil Procedure relating to the procedure for issuing writs of mandate. It is an established rule of judicial construction that when a term appears in different parts of the same act, or in related sections of the same code, the term should be construed as having the same meaning in each instance. (Department of Revenue of Ore. v. ACF Industries, Inc. (1994) 510 U.S. 332, 342 [114 S.Ct. 843, 849, 127 L.Ed.2d 165]; Stillwell v. State Bar (1946) 29 Cal.2d 119, 123 [173 P.2d 313]; Gruschka v. Unemployment Ins. Appeals Bd. (1985) 169 Cal.App.3d 789, 792 [215 Cal.Rptr. 484].) In the chapter of the Code of Civil Procedure dealing with writs of mandate, the term “heard” or one of its cognate forms appears not only in section 1088, but also in sections 1094 and 1094.5. The meaning of the term in these sections is properly considered in determining its meaning in section 1088.

Code of Civil Procedure section 1094 states that “[i]f no return be made, the case may be heard on the papers of the applicant.” Viewed in isolation, this provision is not helpful, as the term “heard” could have either of the two meanings mentioned above. But the section goes on to provide that “[i]f the return raises only questions of law, or puts in issue immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case.” (Italics added.) There can be no doubt that as used in this provision, the term “hear” means a court session at which the parties, through counsel, are given a chance to argue their positions orally.

Subdivision (a) of Code of Civil Procedure section 1094.5 states: “Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer, the case shall be heard by the court sitting without a jury.” (Italics added.) This provision has been interpreted as referring to administrative proceedings in which an agency or board is required not merely to privately consider and decide the merits of a certain matter, but to hold a session at which interested parties have a right to appear and to submit at least argument. (Keeler v. Superior Court (1956) 46 Cal.2d 596, 599 [297 P.2d 967]; see also No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74, fn. 3 [118 Cal.Rptr. 34, 529 P.2d 66]; Los Angeles County Employees’ Assn. v. Sanitation Dist. No. 2 (1979) 89 Cal.App.3d 294, 298-299 [152 Cal.Rptr. 415].) If the phrase used in section 1094.5—“a hearing is required to be given”—embraces a party’s right to appear and argue, then the similar phrase in the interrelated Code of Civil Procedure section 1088—“[t]he case must be heard by the court”—ought to be construed as conferring the same right to appear and argue.

This interpretation is consistent with the understanding of our appellate courts as conveyed in published decisions. This court has long recognized that if a petition for a writ of mandate fails to state a prima facie case, a court may deny it “out of hand”—that is, without a hearing. (Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790, 797 [136 P.2d 304].) But, at least when this court has focused its attention on the relevant statutory provisions,¹ we have generally declined to recognize a judicial power to grant a peremptory writ of mandate without affording at least the opportunity for oral argument.

In an early case, this court quoted the relevant provisions of Code of Civil Procedure sections 1088 and 1094, construing them as permitting “a hearing and a submission of the cause on the pleadings of the parties in a proceeding for mandamus as in any other,” and it concluded that the hearing requirement had been satisfied in that case because “the judgment recited that the ‘cause came on regularly for hearing on the twenty-first day of May, 1894,’ ” even though the responding party had failed to appear at the hearing. (Town of Hayward v. Pimental (1895) 107 Cal. 386, 390 [40 P. 545].) Thus, the hearing was sufficient to satisfy the statutory hearing requirement because it had afforded the parties an opportunity to appear and to argue orally, whether or not they availed themselves of the opportunity. (See also Lotus Car Ltd. v. Municipal Court (1968) 263 Cal.App.2d 264, 267 [69 Cal.Rptr. 384] [stating that in a mandate proceeding “the court may hear the matter upon the papers filed and the argument when only a question of law is raised” (italics added)]; Lassen v. City of Alameda (1957) 150 Cal.App.2d 44, 47-48 [309 P.2d 520] [same].)

For all of these reasons—the term “heard” usually embraces a right to oral argument; the qualifying phrase “whether the party appears or not” implies a formal court session; and in related provisions the words “hear” and “hearing” include a right to oral argument—Code of Civil Procedure section 1088 is best understood as requiring a court, including a Court of Appeal, to hold a hearing that includes an opportunity for oral argument before rendering a decision to issue a peremptory writ of mandate.

III. Constitutional Analysis

The California Constitution provides that in a Court of Appeal, “[concurrence of 2 judges present at the argument is necessary for a judgment.” (Cal. Const., art. VI, § 3, italics added.) This court has twice authoritatively construed this constitutional provision as conferring a right to oral argument.

The first decision involved a criminal prosecution in which, on the defendant’s appeal from a superior court judgment of conviction, the Court of Appeal had summarily affirmed the judgment without giving the defendant an opportunity for oral argument. (People v. Brigham (1979) 25 Cal.3d 283, 285 [157 Cal.Rptr. 905, 599 P.2d 100] (Brigham).) This court determined that the Court of Appeal had acted outside its authority by proceeding in this manner. (Id. at p. 289.) In particular, this court declared in no uncertain terms that “[t]he Constitution of the State of California recognizes a right to oral argument on appeal,” and this court identified the source of this constitutional right as the language of article VI, section 3, providing that “[concurrence of 2 judges present at the argument is necessary for a judgment” in the Court of Appeal. (25 Cal.3d at p. 287.) As construed by this court, this constitutional provision guarantees the opportunity for oral argument; the parties may, of course, waive argument and submit the matter on the briefs, or they may stipulate to the participation of a justice not present at the argument. (Id. at p. 288; accord, Ops. Cal. Legis. Counsel, No. 4364 (Apr. 11, 1966) Revision of Article VI, Cal. Const.: District Court of Appeal, Sen. J. (1966 1st Ex. Sess.) pp. 1048-1050.)

The second decision involved a civil action in which, on the plaintiff’s appeal from a superior court judgment denying a petition for a writ of mandate, the Court of Appeal altered the composition of the panel assigned to the appeal after oral argument to include a justice not present at the argument. (Moles v. Regents of University of California (1982) 32 Cal.3d 867, 869 [187 Cal.Rptr. 557, 654 P.2d 740] (Moles).) Finding this procedure in violation of the state Constitution, this court retransferred the matter to the Court of Appeal “for reargument and decision by a properly constituted panel.” (Id. at p. 874.) Unless the parties stipulate to the participation of a justice not present at oral argument, or waive argument entirely, “ ‘a judge not present at the argument is barred from participating in the decision.’ ” (Id. at p. 870, quoting 6 Witkin, Cal. Procedure (2d ed. 1972) Appeal, § 490, p. 4442.) This court affirmed that our state Constitution recognizes “the right to oral argument in civil—as well as criminal—cases . . . .” (32 Cal.3d at p. 872.)

Although both of these prior decisions of this court concerned judgments that a Court of Appeal rendered on appeal, whereas here the Court of Appeal rendered its judgment in an original proceeding for a writ of mandate, the language of the relevant constitutional provision applies alike to all judgments rendered by the Court of Appeal, and it admits of no distinction based on whether the judgment is rendered on appeal or in an original mandate proceeding. The majority concedes, as it must, that a decision of the Court of Appeal granting a peremptory writ of mandate in the first instance is a judgment of the Court of Appeal. (Maj. opn., ante, at p. 1256.)

To summarize, the Constitution provides that the “[c]oncurrence of 2 judges present at the argument is necessary for a judgment.” (Cal. Const., art. VI, § 3.) A decision of the Court of Appeal directing issuance of a peremptory writ of mandate in the first instance is a judgment of the Court of Appeal, the same as a decision of the Court of Appeal affirming or reversing a superior court judgment on direct appeal. If article VI, section 3, guarantees a right of oral argument in the one situation (direct appeal), it must equally guarantee a right of oral argument in the other situation (peremptory writ in the first instance). After careful consideration of the matter, this court has twice decided that article VI, section 3, does guarantee a right of oral argument in all appeals decided by the Court of Appeal. Therefore, necessarily, article VI, section 3, guarantees a right of oral argument when a Court of Appeal issues a peremptory writ in the first instance. The logic is ironclad. There is no sound basis upon which our prior decisions may be distinguished.

IV. Other Considerations

The majority’s decision produces anomalous results.

A superior court must give the parties an opportunity for oral argument before granting a motion for summary judgment. (Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 262-264 [77 Cal.Rptr.2d 781].) Yet the majority’s decision means that the Court of Appeal may direct entry of summary judgment, by issuing a peremptory writ of mandate in the first instance, without giving the parties a chance to orally argue their positions. If oral argument is essential for a trial court to rule on a motion for summary judgment, why is it not also essential before a Court of Appeal directs a trial court to enter summary judgment? The majority provides no satisfactory answer.

If the superior court grants summary judgment for one party and the other appeals, the Court of Appeal may not affirm the superior court’s judgment without granting the losing party an opportunity for oral argument. Yet, if the trial court has denied summary judgment, and the unsuccessful moving party seeks review by petition for a writ of mandate, the majority would permit a Court of Appeal, without giving the opposing party an opportunity for oral argument, to direct the superior court to vacate the order denying summary judgment and to enter a new order granting judgment. Thus, the party who loses in the superior court is guaranteed a right to oral argument in the Court of Appeal, but the party who wins is not. Why should the right to oral argument turn on whether a party won or lost in the superior court, and why should the right be given to a party who lost in the superior court but denied to a party who won in that court? The majority provides no satisfactory answer.

I see no reasonable basis for distinguishing these situations. The right to oral argument should not depend on whether the summary judgment is finally adjudicated on the merits in the superior court or in the Court of Appeal, nor should the right to orally argue in the Court of Appeal be granted to one who lost in the superior court but denied to one who prevailed in that court. In logic and fairness, the right to oral argument should be equally available in all of these situations.

There is another reason for preferring a rule that recognizes a right to oral argument when a Court of Appeal issues a peremptory writ of mandate in the first instance. This rule would be consistent with this court’s decisions on two related issues—when a Court of Appeal decision must be in writing with reasons stated and when a Court of Appeal decision establishes the law of the case.

This court has held that a decision of the Court of Appeal summarily denying a petition for a writ of mandate does not establish the law of the case, but that a Court of Appeal decision granting a petition for writ does establish the law of the case, irrespective of whether the peremptory writ is granted in the first instance or only after issuance of an alternative writ or an order to show cause. (Kowis v. Howard (1992) 3 Cal.4th 888, 894-895, 899 [12 Cal.Rptr.2d 728, 838 P.2d 250].)

The rule for written opinions is the same. The California Constitution states that “[decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” (Cal. Const., art. VI, § 14.) When a Court of Appeal summarily denies a petition for a writ of mandate, it does not determine a cause, and therefore it need not explain the ruling in a written opinion. (People v. Medina (1972) 6 Cal.3d 484, 490 [99 Cal.Rptr. 630, 492 P.2d 686].) But when a Court of Appeal decides to issue a peremptory writ of mandate in the first instance, as the Court of Appeal did here, it does determine a cause and so must give an explanation in a written opinion.² (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178, fn. 6 [203 Cal.Rptr. 626, 681 P.2d 893].)

If a Court of Appeal decision is significant enough to establish the law of the case and to require explanation by a written opinion, it should be rendered only after the Court of Appeal has given the parties an opportunity for oral argument. Having separate rules for determining law of the case, written decision, and oral argument is unnecessarily confusing. A single test should govern all three.

Last but not least, recognizing a right to oral argument when a Court of Appeal issues a peremptory writ of mandate in the first instance acknowledges and reaffirms the worth of oral argument in the appellate process. Oral argument in the Courts of Appeal promotes confidence in those courts’ decisions, on the part of the litigants, counsel, and the public, by ensuring that the justices whose decisions will bind the litigants have indeed heard and considered, and perhaps debated, the merits of the litigants’ argument. The tremendous growth in the caseload of the Courts of Appeal, and their increasing use of professional legal staff, may give litigants cause to doubt that justices personally read all the briefs the litigants submit and personally write all the opinions the court issues. But oral argument removes all intermediaries and gives counsel an opportunity to make personal contact with the justices who will decide their case and to engage them in a dialogue on the merits of their respective positions. Speaking to litigants’ attorneys, Chief Justice Rehnquist explained the importance of oral argument for them in this way: “ ‘You could write hundreds of pages of briefs, and, you are still never absolutely sure that the judge is focused on exactly what you want him to focus on in that brief. Right there at the time of oral argument you know that you do have an opportunity to engage or get into the judge’s mental process.’ ” (Bright, The Power of the Spoken Word: In Defense of Oral Argument (1986) 72 Iowa L.Rev. 35, 36-37.) However brief, this direct personal interaction between court and counsel deserves to be preserved and protected.

Only three points in the majority’s tedious analysis require comment.

The majority asserts that this court’s construction of the state Constitution in Moles, supra, 32 Cal.3d 867, and Brigham, supra, 25 Cal.3d 283, may be tossed aside here because “[o]ur holdings in those decisions also depended upon statutes and rules referring to oral argument on appeal.” (Maj. opn., ante, at p. 1257.) I do not agree that the reasoning of those decisions may be dismissed so easily. In both Moles and Brigham, this court stated unequivocally that the state Constitution, by requiring that the “[c]oncurrence of 2 judges present at the argument is necessary for a judgment” (Cal. Const., art. VI, § 3, italics added), gives litigants a right to oral argument in the Court of Appeal. This court’s additional reliance on statutes and rules of court does not lessen the precedential force of the constitutional interpretation because “[i]t is well settled that where two independent reasons are given for a decision, neither one is to be considered mere dictum, since there is no more reason for calling one ground the real basis of the decision than the other.” (Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 650 [20 P.2d 940]; accord, Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3 [14 Cal.Rptr.2d 491, 841 P.2d 1011].)

The majority argues that “if an unusual urgency requires acceleration of the normal process, the writ petition might become moot before the court could schedule and hear oral argument, thereby depriving the court of jurisdiction where a stay or writ of supersedeas could not preserve the status quo.” (Maj. opn., ante, at p. 1259.) Situations in which the status quo may not be preserved by a stay or a writ of supersedeas are exceedingly rare, and in those rare situations I am confident that modem technology, particularly telephone and computer communications, will allow the Court of Appeal to give the parties an opportunity for oral argument before the matter is mooted by the passage of time.

The majority maintains that requiring Courts of Appeal to give litigants an opportunity for oral argument before granting a peremptory writ in the first instance “needlessly would add to the workload of already overburdened appellate courts,” and that, to escape the crushing burden of oral argument in these cases, Courts of Appeal would decline “to correct even the clearest and most obvious error by extraordinary writ, and instead might relegate the aggrieved party to a remedy on appeal” thereby causing “unnecessary delay and increased litigation costs.” (Maj. opn., ante, at p. 1260.) But what is this crushing burden of which the majority writes? As this court has emphasized, Courts of Appeal should grant writs of mandate in the first instance only rarely. When the right to relief is truly obvious, parties may well waive oral argument, knowing their cause is hopeless. And even when the parties assert their right to oral argument, a hearing takes at most a single hour of the court’s time. Before issuing a writ of mandate, a Court of Appeal court must in any event devote several hours to reviewing the petition and the informal opposition, if any, and to drafting an opinion setting forth the reasons for the court’s decision. The additional time required for oral argument is relatively modest, and I am confident, as the majority apparently is not, that Court of Appeal justices are too conscientious to allow this modest additional burden to dissuade them from rendering a decision that would save the trial court and the litigants the much greater expenditure of time and resources required for holding a needless trial and perhaps also a subsequent appeal. Finally, concerns of judicial efficiency carry little force when weighed against fairness to the litigants and obedience to constitutional commands.

V. Conclusion

As Second Circuit Judge Irving R. Kaufman has written: “An oral argument is as different from a brief as a love song is from a novel. It is an opportunity to go straight to the heart!” (Kaufman, Appellate Advocacy in the Federal Courts (1977) 79 F.R.D. 165, 171; see Mediterranean Construction Co. v. State Farm Fire & Casualty Co., supra, 66 Cal.App.4th 257, 264.) Our statutory law recognizes the importance of oral argument by requiring that before a court may grant a peremptory writ of mandate, “[t]he case must be heard.” (Code Civ. Proc., § 1088.) Our Constitution recognizes the importance of oral argument by specifying that the “[c]oncurrence of 2 judges present at the argument is necessary for a judgment” in a Court of Appeal. (Cal. Const., art. VI, § 3.) In obedience to the command of these laws, I would reverse the judgment of the Court of Appeal because it granted a peremptory writ of mandate in the first instance without giving the parties an opportunity for oral argument.

1 An opinion I authored for the court has a statement that the statutory provisions governing petitions for writs of mandate give Courts of Appeal three options, one of which is to “grant a peremptory writ in the first instance without a hearing . . . .” (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024 [269 Cal.Rptr. 720, 791 P.2d 290], italics added.) After further examination of the issue, I regretfully conclude that this statement, which addressed an issue not raised and which was unnecessary to the court’s holding, was simply wrong.

2 Here, plaintiffs contend that the Court of Appeal’s written explanation for its decision failed to satisfy the written opinion requirement because the court’s reasoning was not explained in sufficient detail. The majority agrees with plaintiffs that the Court of Appeal’s decision was one of those that the Constitution requires to be in writing with reasons stated, but the majority concludes also that the Court of Appeal complied with this requirement. (Maj. opn., ante, at pp. 1261-1264.) I do not disagree with these conclusions.