Friday, July 27, 2001
Page 7
PERSPECTIVES (Column)
Court Allows Defendant’s Writ Petition to Be Kept Secret From Plaintiff
By ROGER M. GRACE
Secrecy and silliness in the courts persist.
Here’s a new one: the Appellate Division last Friday issued a writ without letting the plaintiff know anything about the proceeding. That’s the secrecy part.
The silliness is that the case was decided despite mootness in light of “continuing public interest” in the issue before the court and the likelihood that it would recur — yet, the opinion was not published. So the public, despite its interest, will know nothing of the important utterances by the appellate panel. And if the issue does recur, neither parties nor trial judges will have the benefit of the court’s wisdom.
The holding in the case was that a fee waiver may not be denied absent a hearing. Judge Patti Jo McKay wrote the opinion. The court granted the writ petition but said that a writ didn’t have to be issued since the $89 fee had already been returned.
Filling in the details, a complaint in unlawful detainer was filed March 27 by Leonna McCullough against Artice Simpson and Alfreda Butler. Simpson, who was represented by the Legal Aid Foundation of Los Angeles, moved for a fee waiver based on indigency. Los Angeles Superior Court Judge Brett C. Klein examined her application, found it to be deficient, and denied the motion without holding a hearing. Simpson sought a writ. She did not name McCullough as real party in interest, or even serve her counsel with a copy of the petition, proclaiming that the plaintiff had no interest in the matter.
Simpson’s lawyer, Christian Abasto, told me that as he saw it, the controversy was “between the court and the person who had the fee waiver denied.” He remarked: “The only beneficiary of the court’s action was the court because it got to keep the $89.”
The Appellate Division apparently agreed. It issued a notice of intent to grant a peremptory writ in the first instance, with no service of that Palma notice on McCullough’s counsel.
Even if it’s assumed that Code of Civil Procedure §1107’s requirement of a proof of service on the real party in interest was not breached because the plaintiff was not a “real party in interest” in the writ proceeding, there was an infirmity in the procedure. No heed was taken of Los Angeles Superior Court Rules of Court, rule 11.10(d)(3), which governs the service of writ petitions filed in the Appellate Division. It says: “The petition must be served on all parties and the Presiding Judge of the superior court before filing.” There is nothing ambiguous about the words “all parties.” The plaintiff was, to state the obvious, a party in the underlying proceeding, entitled to notice of the writ proceeding.
Anyway, given that the plaintiff was left out of the picture, the respondent, Los Angeles Superior Court, filed a response to the petition. It was drafted by Klein, who has a bit of experience in writ matters. He ghost wrote decisions on writ petitions for Div. Two of this district’s Court of Appeal prior to his ascendency to the bench in 1990.
Klein said:
“On its face, the petition presents two issues of institutional concern to respondent:
“First: Can a litigant seek and obtain a writ from an appellate court without any notice to the opposing litigant?
“Second: Can a litigant ask an appellate court to decide a legal question that the litigant never asked the trial court to decide?”
Klein maintained that there was no authority for an ex parte proceeding in the Appellate Division. And he observed:
“Petitioner says plaintiff does not care about this petition. But perhaps plaintiff’s interest is an institutional one, the same as petitioner’s. Perhaps plaintiff’s counsel is Los Angeles County’s largest landlord firm and would wish to present, in plaintiff’s name, the point of view of owners of income property.”
Klein continued:
“Perhaps plaintiff might cite a case or statute or Rule of Court not cited by peitioner. Perhaps there are sunstantial matters of public policy or litigation practice that plaintiff would wish to bring to the Court’s attention.”
The judge also pointed out that the petitioner was complaining that her waiver had been denied without a hearing, but had not requested a hearing in the trial court.
Klein ended his brief by suggesting that if the Appellate Division were to grant the writ without notice to McCullough, it publish its opinion. He commented that “an opinion condoning ex parte writ petitions would fulfill the publication criterion of the first clause of Rule 976(b)(1)” (authorizing publication where the opinion “establishes a new rule of law.”)
Neither Klein’s brief nor the reply to it was served on McCullough’s counsel. In fact, her lawyer, James McCone of Dennis Block & Associates, told me late Wednesday that he did not find out about the writ proceeding until that very afternoon. Acosta mentioned it when the two saw each other in the courthouse, he related.
Is his firm the “largest landlord firm” in the county? “I believe in volume, yes we are,” he said. He confirmed that his firm “would like to have had the opportunity to do research” on the issue before the Appellate Division and said that it might have offered its thoughts on that issue in a brief.
Another aspect to the case was that Klein, after receiving a copy of the writ petition, apparently became convinced that Simpson was entitled to the fee waiver. He ordered a return of the $89 answer fee to the defendant, and his clerk forwarded a copy of the order to the Appellate Division. Klein noted in his respondent’s brief that “this petition is a claim for a refund of an $89 filing fee — a claim that became moot on May 17 when respondent ordered the refund.”
Mootness there clearly was. Nonetheless, appellate courts do decide moot issues, on occasion, where an issue is of public interest and likely to recur. But, as I said at the start, there’s hardly any point to deciding such an issue in an unpublished opinion.
Someone unfamiliar with the record who picked up McKay’s opinion would probably find it perfectly sensible. In light of the true facts, however, it is defective…and, frankly, dishonest.
It does not allude to the non-service of notice on McCullough. To the contrary, it represents that there was such service. It says:
“By order dated May 11, 2001, the parties were notified that this court may elect to issue the peremptory writ in this matter and invited response thereto by real party in interest pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-183.”
Untrue. The plaintiff, a party, was not notified. The minute order of May 11, 2001 reflects service only on Abasto (and his cocounsel, Kenyon Dobberteen), on Klein, and on the Los Angeles Superior Court’s court counsel, Frederick R. Bennett.
Ordinarily, the plaintiff would have been denominated a real party in interest. That was not done. The caption used by the Appellate Division throughout the proceedings was Artice Simpson, Petitioner, v. Limited Civil Jurisdiction Court, Los Angeles Superior Court, Respondent. There’s no mention of a real party.
McKay announces in her opinion that Klein’s brief had been stricken. She cites recent cases limiting the circumstances where trial courts may interject their views in higher courts. And she remarks: “By custom, the real party in interest (rather than the respondent) is expected to respond to the petition.”
Klein is made to look like a fool.
McKay provides no clue as to how the real party in interest could have been expected to have responded when there was no real party in interest.
The court, in its Palma order, recited that the “parties are hereby notified” that a peremptory writ in the first instance might be issued. It invited a response by May 29. Klein and Bennett were served; McCone was not. What this communicated was that a response was being invited from the respondent court. Plainly, it was not being invited from the plaintiff who was not notified. The impression created was that the Appellate Division had embraced Simpson’s contention that the only parties to the proceeding were Simpson and the respondent court.
It might be that, under recent case law, the Superior Court was foreclosed from putting forth its views in a reviewing court. But for McKay and her colleagues (Judges Sandy Kreigler and Charles Lee) to beckon the respondent court to come forth, then pronounce it to be trespassing, was incongruous and daft
Acosta told me he will ask the Appellate Division to publish its opinion. If it is published, that would legitimize the deciding of the case despite mootness. But there’s also the matter of the opinion containing false implications. If it is to be published, the opinion should first be modified to comport with the truth. If that’s done, it would become incumbent on McKay to explain why a respondent’s brief is not welcome in the Appellate Division when it had been invited, why the plaintiff had not been given notice by that court of its intent to issue a peremptory writ in the first instance, and why the court did not require compliance by the petitioner with Rule 11.10(d)(3).
Going beyond the matters of the Appellate Division’s secrecy (shielding the writ proceeding from the plaintiff’s view) and silliness (deciding a moot matter in an unpublished opinion), a question arises as to whether the panel properly scrapped Klein’s brief. I’ll talk about that in my next column.
Copyright 2001, Metropolitan News Company