Here is an unsettling thought:
You are successfully litigating a disputed legal point. You obtain a preliminary injunction in your favor. You then proceed to trial. But before the court issues its judgment in your favor, another county superior court, faced with the same legal question, issues a preliminary injunction deciding the question against you. And then the Court of Appeal for that other district issues a summary denial of a writ petition, thus affirming that problematic ruling.
So what does that terse summary denial mean for your case? You know that "Decisions of every division of the District Courts of Appeal are binding upon all the . . . superior courts of this state." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
But: Is a summary denial of a writ petition a "decision"?
That is what happened in Ventura Cnty. Deputy Sheriffs' Ass'n v. Cnty. of Ventura (D2d6 Mar. 3, 2021) No. B300006. And the court answered the question: Yes, a summary denial is a decision binding on all lower courts.
Ventura County involved a new law effective January of 2019, providing that the public may now obtain disclosure under the Public Records Act of records concerning officer-involved shootings and other serious use of force, sexual assault, or dishonesty. Previously, these records were only available pursuant to a Pitchess motion.
But what about records prior to 2019? Is the statute retroactive to cover those records as well?
The Sheriffs Association was not waiting around to find out. The Association sued the Sheriff and the County to enjoin production of any earlier records. The trial court agreed with the Sheriffs Association and granted a preliminary injunction. But in the meantime, a similar lawsuit in Contra Costa County was litigating the very same issue, but the trial court had come out the opposite way. The officers' association in Walnut Creek Police Officers' Assn v. City of Walnut Creek (2019) 33 Cal.App.5th 940 filed a petition for supersedeas, but the First District summarily denied it, finding the statute retroactive.
After the First District's decision summarily denying the association's arguments in Walnut Creek, however, the trial court in Ventura County ignored it. Instead, the trial court agreed with the Sheriffs' Association, found the statute was not retroactive, and issued a permanent injunction in favor of the association.
This was a clear failure of a trial court to follow binding precedent of an appellate court. A clear failure, that is, only if a summary denial of a writ petition is a "decision" for purposes of Auto Equity Sales.
So is a summary denial of a writ petition a "decision"?
Yes, says Ventura County: "VCDSA claims Walnut Creek is non-binding because it was a summary denial of petitions for writ of supersedeas. We agree the decision is procedurally atypical, but the court did analyze and decide the same issue presented here."
The court gave no further analysis. And the court did go on to concur with Walnut Creek on the merits. But the court clearly believes summary decisions are still "decisions," and binding as such.
Is the Ventura County analysis correct?
I would not read too much into the Ventura County court's result here on the issue of the precedential effect of summary denials. Other cases have held that summary denials of writ petitions are binding only if a writ petition was the exclusive means of obtaining review of the issue. (Leone v. Medical Board (2000) 22 Cal.4th 660, 670.) Besides, a summary denial is not law of the case, so if it is not binding even on the litigants appearing before the court, why should it be binding on strangers to the lawsuit? (Kowis v. Howard (1992) 3 Cal.4th 888, 899; People v. Medina (1972) 6 Cal.3d 484.)
And if the summary denial is not accompanied by a written opinion, there is authority to support the argument that it "cannot properly be deemed a conclusive decision on the merits," because a petitioner "is entitled to an appellate court's determination ... `in writing with reasons stated' (Cal. Const., art. VI, § 14)...." (People v. Medina (1972) 6 Cal.3d 484, 493.)
So there are strong arguments that a summary denial of a writ petition, with or without an opinion, is not a judicial determination on the merits, as long as the writ petition was not the sole means of review of the issue (like a Public Records Act request, orders concerning expungement of a lis pendens, or rulings concerning a physician's license or on judicial disqualification, etc.). (People v. Jahansson (2010) 189 Cal.App.4th 202, 211.)
Takeaway: Litigants sometimes file writ petitions in the Court of Appeal to seek review of grievous but nonappealable orders that come down prior to a judgment. If the writ petition is summarily denied (as they usually are), you may need to be prepared to argue that the denial has precedential effect. Or, you may need to be prepared to argue that, no, in fact, it doesn't. The cases above should give you a start on either side of that split.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.
