Appellate Division Jurisdiction on Extraordinary Relief Proceedings
The appellate division has "original jurisdiction in proceedings for extraordinary relief in the nature of mandamus . . . directed to the superior court in causes subject to its appellate jurisdiction." (Cal. Const., art. VI, 10.)
Because the order recusing the city attorney in a misdemeanor case is subject to its appellate jurisdiction (Pen. Code, 1466, subd. (1)(A)), the appellate division had jurisdiction to entertain the writ petition in the case.
As a reviewing court, the appellate division was presented with three options in disposing of the petition for writ of mandate: "either (1) deny the petition summarily; (2) grant a peremptory writ in the first instance without a hearing, after compliance with the procedure set forth in Palma . . .; or (3) grant a hearing on the merits by issuing an alternative writ or order to show cause." ( Bay Development, Ltd. v. Superior Court (1990) 50 Cal. 3d 1012, 1024 269 Cal. Rptr. 720, 791 P.2d 290;
See also Lewis v. Superior Court, supra, 19 Cal. 4th 1232, 1239 (Lewis); Kowis v. Howard (1992) 3 Cal. 4th 888, 893-894 12 Cal. Rptr. 2d 728, 838 P.2d 250).
The second option, i.e., the peremptory writ in the first instance, is subject to severe restrictions. As the exception to the rule, the procedure may only be used in the limited situation where " ' "entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . ." ' " (Lewis, supra, 19 Cal. 4th at p. 1241, citing Alexander v. Superior Court (1993) 5 Cal. 4th 1218, 1223 23 Cal. Rptr. 2d 397, 859 P.2d 96 (Alexander), quoting Ng v. Superior Court (1992) 4 Cal. 4th 29, 35 13 Cal. Rptr. 2d 856, 840 P.2d 961 (Ng).)
Moreover, on those rare occasions that a reviewing court resorts to use of a peremptory writ in the first instance, it is constrained to comply with the procedural safeguards in Palma--that is, to receive or solicit opposition before directing issuance of the writ. (Lewis, supra, 19 Cal. 4th at p. 1239; Alexander, supra, 5 Cal. 4th at p. 1223; Ng, supra, 4 Cal. 4th at p. 35.)
As the Supreme Court explains: " 'Due notice' under Code of Civil Procedure section 1088 requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered.
In addition, 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, supra, 36 Cal. 3d at p. 180.)