Filed 11/21/17 Gallo v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


LISA GALLO et al.,
Petitioners,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;
RUDY GALLO et al.,
Real Parties in Interest.



A152663

(Contra Costa County
Super. Ct. No. MSC16-01300)

THE COURT:*
Petitioners Lisa Gallo, Mary Sherfey, and Denise Thompson filed this writ proceeding to challenge a portion of respondent superior court’s order granting petitioners leave to amend their complaint against real parties in interest Rudy Gallo and Gina Komaroff. Having considered the petition, record, and the parties’ briefs, we determine petitioners are entitled to writ relief.
In granting petitioners leave to amend their complaint, respondent conditioned its order on petitioners “bear[ing] all discovery costs and fees (including attorneys’ fees) otherwise borne by [real parties in interest] in response to [petitioners’] discovery demands” and “resulting from [real parties’] need to defend against allegations” in the amended pleading. Additionally, respondent required petitioners to “bear the costs and fees (including attorneys’ fees) stemming from discovery propounded by [real parties].”
It is undisputed that in opposing petitioners’ motion to amend, real parties did not request, nor provide a predicate factual foundation for, imposition of any conditions (much less discovery expenses) upon the granting of petitioners’ motion. Instead, the subject of conditions was raised by respondent, sua sponte, at the hearing on petitioners’ motion and its order thereafter imposed conditions when it granted petitioners’ motion. Since respondent did not proceed in accordance with due process in imposing the challenged conditions upon the granting of leave to amend, we will grant writ relief. (See Bricker v. Superior Court (2005) 133 Cal.App.4th 634, 638–639.)
In accordance with our prior notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180.) Petitioners’ right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing, and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236–1237, 1240–1241; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240–1244.) In our order requesting briefing, we provided Palma notice and specifically asked that the parties address whether respondent violated petitioners’ due process rights by the manner in which it imposed conditions and, if so, what the remedy should be. Real parties’ opposition brief raised a host of unmeritorious objections to the granting of writ relief, and not only failed to answer the question we posed, but also did not discuss whether such conditions are permitted by case law and the underlying facts. Such briefing would have been the first airing of real parties’ view on that subject, given their failure to brief the point below. Under these circumstances, we reject real parties’ suggestion that we remand this matter to permit respondent to consider how to limit the scope of the conditions. (Cf. Bricker v. Superior Court, supra, 133 Cal.App.4th at p. 639 [requiring respondent to vacate its dismissal of petitioner’s small claims appeals and to decide the dismissal question consistent with due process principles, where the parties’ briefs and evidentiary submissions in this court discussed the merits of the dismissal issue].)
Let a peremptory writ of mandate issue directing respondent superior court to vacate the portion of its order filed August 31, 2017, imposing conditions upon the granting of leave to amend. In the interests of justice and to prevent further delays, this decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Petitioners are entitled to recover costs. (Id., rule 8.493(a)(1)(A).)