This article originally appeared in The Recorder on January 8, 2019.
Writ relief is notoriously hard to get — 90 percent of writ petitions are denied. But that, it turns out, is by design. In Omaha Indemnity Co. v. Superior Court, one of the seminal opinions on writ relief, Justice Arthur Gilbert explained “[w]rit relief, if it were granted at the drop of a hat, would interfere with an orderly administration of justice at the trial and appellate levels.” Too “lax” a view of the extraordinary nature of writs runs the “risk of fostering the delay of trials, vexing litigants and trial courts with multiple proceedings, and adding to the delay of judgment appeals pending in the appellate court.”
A writ petition is an isolated sliver of the larger litigation. The first petition in a case might be filed upon the denial of a motion to quash service. At that very early stage in the proceedings, the ultimate issues are uncertain and the final parties unknown. Even a writ petition arising much later, such as one challenging the denial of an in limine motion, does not present a complete picture to the Court of Appeal: the only brief that is before the appellate court is petitioner’s, and the only record is the set of exhibits prepared by petitioner. And a petition is “cutting in line,” jumping ahead of all the appeals waiting their turn for decision. These factors all mean that the Court of Appeal will not consider a petition unless it has a compelling reason to do so.
But appellate courts do grant the other 10 percent of writ petitions, and the reasons Justice Gilbert set out in Omaha Indemnity remain the gold standard for assessing writs. As Justice Gilbert explained, writ relief is warranted when: (1) the issue is of widespread interest or presents a significant and novel constitutional issue; (2) the ruling deprived petitioner of the opportunity to present a substantial portion of petitioner’s cause of action; (3) conflicting trial court interpretations of the law require a resolution of the conflict; (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case; (5) petitioner lacks an adequate means, such as a direct appeal, by which to attain relief; and (6) the petitioner will suffer harm or prejudice that cannot be corrected on appeal.
These factors are the gateway to a grant. Your writ petition must demonstrate at least one Omaha Indemnity factor — or more if you want a better chance that the appellate court will grant your writ.
Showing that the trial court erred, for instance, will not by itself convince the Court of Appeal to grant your writ. Litigation is a long process, and, without extraordinary reasons for stepping in, an appellate court will choose to let the matter proceed along to trial and address any legal issues on appeal. But if you set your case within the Omaha Indemnity framework, the court is much more likely to take your petition and grant it. If you’re convinced the trial court decision is dead wrong, for instance, you should not only demonstrate clear error but also explain how the ruling will cause substantial prejudice if it is allowed to stand. In Ramos v. Superior Court, a recent case, the appellate court determined that the challenged ruling compelling arbitration was legally erroneous, but that reason, alone, would not have been sufficient to reverse the superior court’s order. The crucial factor convincing the Ramos court to issue the writ was to avoid cost and trouble to both sides — without the writ, the parties would have to arbitrate the case and then, after appeal, start all over again in court. Similarly, in another recent case, Contractors’ State License Bd. v. Superior Court, the appellate court granted relief to a defendant where the plaintiff’s failure to exhaust administrative remedies could not be cured. The court did not stop there, but explained that it issued the writ because to allow the litigation to proceed would substantially prejudice the defendant.
Even where the trial court has broad discretion, Omaha Indemnity factors may convince the appellate court to grant relief. In Padda v. Superior Court, a trial court denied a continuance of trial where defendant’s expert fell seriously ill. After acknowledging that a continuance is generally a matter of discretion, the appellate court reversed the trial court’s order. The appellate court explained that the loss of the expert so close to trial constituted “an untenable burden.” Using the Omaha Indemnity factors, we see that the loss of the expert witness so close to trial severely prejudiced the defendants. Waiting to correct the error on post-judgment appeal would be useless.
If your case does not fit within Omaha Indemnity parameters, you generally can’t fool the court by trying to squeeze it in. In my decades as a writ attorney, I have read hundreds of petitions dealing with common issues which try to claim that the challenged ruling presents a significant issue of widespread interest. The court summarily denied these petitions. For example, don’t say your petition presents issues of widespread importance that cannot be addressed on appeal if you challenge attorney fees (like petitioner did in Henry M. Lee Law Corp. v. Superior Court), or a discovery order that does not involve privilege (like the petitioner in Labor & Workforce Development Agency v. Superior Court).
What is an issue of widespread importance? One in which many lawsuits arise out of the same occurrence and present the same central issue, as was the case in Southern California Gas Leak Cases. Another example is the existence of conflicting superior court decisions on the issue, like in Abbott Laboratories v. Superior Court.
Justice Gilbert’s list of “grant” factors in Omaha Indemnity remain as compelling as they were in 1989. To ensure that the Court of Appeal considers your petition on its merits — and to have any shot at a grant — make sure that your petition demonstrates one or more of these factors.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. 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.