This article originally appeared in The Recorder on May 21, 2021.
In my nearly 40 years as a senior writ attorney in the California Court of Appeal, I reviewed over ten thousand writ petitions. Most civil writ petitions that crossed my desk sought reversal of pretrial civil orders. The Court of Appeal denied most summarily. However, a significant number of petitions would have been considered on their merits if only they had been timely filed. Because of the tardy filing, the Court of Appeal had no jurisdiction to consider the merits of those petitions – and in some cases, writ review was the only authorized method for an appellate challenge, meaning the issue could not later be raised on appeal.
So here are a few vital tips to avoid the dreaded deadline demon for appellate writ petitions.
At the outset, before you begin to figure out the time limit for seeking writ review, you must determine whether the petition is “statutory” or “non-statutory.” If a specific statute authorizes the writ petition, it may set forth the time period for filing the petition. That’s a statutory petition.
If there is no time limit in the statute – or there is no statute – then the petition is (no surprise here) non-statutory, and the time limit for seeking review is found in case law.
Statutory writ petitions
When a motion is authorized by statute, you should always start by checking the language of the statute carefully. That may give you a lot of guidance about whether appellate writs are allowed or even the exclusive means of appellate review, and what the timing requirements may be. For example, you have to get all the way down to subdivision (m) of Code of Civil Procedure section 437c to learn that an order denying summary judgment, or granting or denying summary adjudication, is reviewable by an appellate writ petition, which must be filed within weeks of the order’s issuance.
So you should carefully examine the statute for the deadline. Be aware the time period for filing a statutory writ petition can be strikingly short. A petition on a motion to disqualify a judge for cause is due 10 calendar days after service of written notice of the denial of the motion. The time is equally short to file a petition challenging an order denying a motion to quash service of summons for lack of jurisdiction, or to stay or dismiss an action on the ground of inconvenient forum or delay in bringing the matter to trial.
Most statutes give the trigger for the time beginning to run as “service of written notice of the ruling.” Where the court has ordered a party other than your client to give notice, it is safe to start calculating the time for filing a petition from the date the notice was electronically sent, faxed, mailed, or hand delivered. While most courts order the prevailing party to provide notice, it’s possible that you might be ordered to give notice even if you lost the motion. If that happens, then your time for filing may begin to run from actual notice – when the judge orally pronounces the ruling – or when the minute order is generated.
And the statutory language can be tricky. On an order determining whether a settlement is in good faith under Code of Civil Procedure section 877.6, the 20-day period for filing a petition runs from service of “written notice of the determination.” Under case law, this has been held to start the time running with the court clerk’s mailing of notice of the minute order, and not by service of notice by a party. So read carefully. But, as with motions, the time for filing is often extended if written notice is served by mail.
Some statutes allow you to request the superior court to extend the filing period, but you must request that extension within the original period. For example, the summary judgment statute requires an appellate writ to be filed within 20 days, but gives the superior court discretion to allow up to 10 additional days for filing a petition as long as the request is made during the initial 20-day period.
Some statutes, like the summary judgment statute, require a showing of good cause to obtain one of these extensions, but others, like the good-faith settlement statute, do not. If you need an extension – and you almost always do – be quick to ask for it. If you can, make the request at the hearing, if possible, so you don’t have to go in ex parte later.
Some practitioners mistakenly believe that moving for reconsideration in the superior court gives them extra time for seeking writ review in the Court of Appeal. Not so. Case law is clear that the mere filing of the reconsideration motion does not extend the time.
If you have a short period for filing and want to ask for reconsideration, there’s no harm in doing both. Make sure to file a timely writ petition, but let the Court of Appeal know that you have filed for reconsideration, and keep it apprised of what transpires in the superior court. You can always request dismissal of the petition as moot if the superior court changes its mind and goes your way.
Above all, be aware that the time limits set forth in the statutes are jurisdictional. The Court of Appeal has no jurisdiction to consider the merits of a statutory writ petition if it is filed even one day too late.
Non-statutory writ petitions
If there is no statute that expressly authorizes a writ petition, then (again, no surprise), the petition is non-statutory. Most appellate writ petitions are non-statutory, including challenges to rulings on pleadings, discovery, and issues arising during trial.
The party that is dissatisfied with such a ruling generally has 60 days to file a petition in the Court of Appeal to challenge the ruling. The 60-day limit tracks the time limit for filing a notice of appeal. While that time is not jurisdictional, the Court of Appeal will rarely consider a petition filed after 60 days, unless petitioner demonstrates exceptional circumstances and has sought relief diligently.
As a practical matter, the period is often far shorter than 60 days. That might simply be because the act to be performed will occur in fewer than 60 days – for example, if your client is ordered to produce documents in 30 days, you can’t wait for 60. You can’t really even wait for 30, since the Court of Appeal needs some time to review your petition and issue a ruling.
But even without a short practical deadline, the Court of Appeal wants to see that you have acted diligently. You want to show how important the issue is to you, and one way is to file the petition quickly. Since writ petitions are entirely discretionary for the Court of Appeal, if you’re not showing that the issue is such an important one for you and your client to drop what you’re otherwise doing to work on it, why should the justices and their research attorneys think it’s important enough to drop what they’re otherwise doing to work on it?
The 60-day period usually begins to run from the day after the date of the hearing, not from service of notice of the ruling. While there are a few exceptions, the safest route is to count your days without including service.
Avoiding the dreaded deadline demon can be complicated. Depending on the kind of case you’re dealing with, the smartest move may be to involve someone who specializes in appellate writs even before you get a ruling on a critical motion. Whether you do that or not, though, when it comes to appellate writs, delay is your enemy.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Sharon Baumgold is of counsel with the firm. She spent nearly four decades as a lead writ attorney in the Second District of the California Court of Appeal in Los Angeles. Find out more about Sharon and the California Appellate Law Group LLP at www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
This article is copyright © in the year of publication above.