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Kowis v. Howard

Supreme Court of California

November 5, 1992, Decided

No. S024012


 [*891]  [**251]  [***729]    We are called upon to decide when, if ever, summary denial of a pretrial petition for extraordinary relief establishes law of the case precluding reconsideration of the issue on appeal following final judgment. We conclude that the denial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ.


Plaintiff Keenan Kowis [****2]  sued Malk, Ltd., and its sole shareholder, Thornton M. Howard (collectively defendant), for damages allegedly suffered when plaintiff slipped on a patch of oil on property owned by defendant. Maryland Casualty Company intervened. During the course of the litigation, plaintiff served defendant with a request to admit (1) that plaintiff was injured when he slipped on defendant's property, (2) that plaintiff injured his lower back as a result of the fall, (3) that defendant was negligent in not inspecting the property, and (4) that defendant's negligence was a proximate  [*892]  cause of plaintiff's injuries. After defendant failed to respond timely, plaintiff moved for an order that the request for admissions be deemed admitted. The motion was granted.

Defendant obtained a new attorney, and moved for relief from the order on the basis of the first attorney's neglect. The motion was denied. Defendant then filed a petition for writ of mandate in the Court of Appeal contending the trial court abused its discretion in denying the motion for relief.  The Court of Appeal denied the petition with the following order: "The petition for writ of mandate and request for stay and the opposition [****3]  have been read and considered by Presiding Justice Kremer and Justices Wiener and Huffman. The petition is denied. ( Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 [187 Cal.Rptr. 592, 654 P.2d 775].)"

The case proceeded to trial. Since the court accepted the admissions as conclusive on the question of liability, trial was limited to the issue of damages. The jury, by special verdict, found negligence on both sides, and fixed the total amount of damages at $ 210,000. It allocated 21 percent of the fault to defendant and the remaining fault to plaintiff.

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3 Cal. 4th 888 *; 838 P.2d 250 **; 12 Cal. Rptr. 2d 728 ***; 1992 Cal. LEXIS 5378 ****; 92 Daily Journal DAR 15009; 92 Cal. Daily Op. Service 9084

KEENAN KOWIS, Plaintiff and Respondent, v. THORNTON M. HOWARD et al., Defendants and Appellants; MARYLAND CASUALTY COMPANY, Intervener and Respondent.

Prior History:  [****1]  Superior Court of San Diego County, No. BE539056, J. Michael Bollman, Judge.

Disposition: The Court of Appeal erred in finding that the earlier summary denial of the petition for writ of mandate established law of the case. The judgment of the Court of Appeal is therefore reversed, and the matter is remanded with instructions to consider the issues on the merits (upon which we express no opinion).


pretrial, issuance

Civil Procedure, Methods of Discovery, Requests for Admissions, General Overview, Judgments, Preclusion of Judgments, Law of the Case, Governments, Courts, Rule Application & Interpretation, Remedies, Writs, Common Law Writs, Mandamus, Criminal Law & Procedure, Standards of Review, De Novo Review, Jurisdiction