This article originally appeared in The Recorder on July 17, 2019.
Once in a while, in every piece of litigation, a seemingly small trial court order can mean the whole case. An order requiring your client to re-enact the scene of an accident. An order waiving privilege for emails about an expert witness. An order refusing to stay a sheriff’s sale before trial.
Following the courts’ ordinary, regular practice, you would need to await the court’s ruling to make your objection and preserve the issue for appeal after final judgment. In the appeal, the Court of Appeal is required to take jurisdiction, resolve the issues on their merits, and issue a written opinion after affording the parties an opportunity for oral argument. If the Court of Appeal determines there has been prejudicial error, it will reverse the trial court’s decision.
But diligent trial attorneys know about another option when a trial court’s ruling is erroneous and will wreak irremediable havoc in the case: in certain circumstances, the Court of Appeal will consider granting relief at midstream of litigation on a petition for extraordinary relief by writ.
But obtaining writ relief – in effect cutting into the front of the line of the many litigants who are waiting to have their mandatory appeals heard – is not an easy matter. Unlike appeals, the Court of Appeal is not required to address the merits of writ petitions; rather, the court has discretion to decide whether to take jurisdiction at all. So while an appellant’s burden is to demonstrate that there has been prejudicial error requiring reversal, an appellate writ petitioner faces the threshold burden to persuade the court to exercise its equitable power to rectify an injustice by demonstrating that the trial court’s order subjects the party to “irreparable harm” which cannot be cured by a later appeal, and also presents extraordinary circumstances requiring intervention by writ.
Thus, when a case-shattering motion arises, the diligent trial attorney should always be prepared to anticipate an adverse trial court ruling and to consider challenging the ruling by writ petition. And there are a few steps that trial attorney can take to make her chances stronger.
First, if the trial court has issued a tentative ruling or indicates at the hearing that it will rule against her, the diligent trial attorney will ask the court to indicate in its order that the motion presents “a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation” under Code of Civil Procedure section 166.1. Although the Court of Appeal is free to ignore a section 166.1 statement by the trial court, the statement often increases the odds that the appellate court will choose to take jurisdiction of the writ petition.
Second, in any writ filing, it is critical to ensure an adequate record is preserved. Failure to provide a proper record is the most common basis for summary denials of writ petitions. The record must include the trial court’s order, and should also include the operative complaint and answer, which frame the issues in the litigation; and the papers filed by your opponent that led to the trial court’s ruling. But most important to remember: if at all possible, the record needs a transcript of any oral proceedings. Thus, the diligent trial attorney makes sure a court reporter is at the hearing on her critical motion and request a transcript immediately after on an expedited basis.
Third, if a transcript is not available for whatever reason, the diligent trial attorney will not delay filing the petition – the passage of time will undermine the urgency that you present to the court. Rule 8.486(b)(3) of the California rules of court provides that, in exigent circumstances, a writ petition may be filed with a declaration of counsel in lieu of transcript, explaining why the transcript is unavailable and summarizing the proceedings, including the arguments made by the parties and any statement by the court in support of its ruling.
Fourth, the diligent trial attorney will always know in advance when the petition will be due. Nonstatutory, common law writs have no formal filing deadline; the time in which to file is governed by the doctrine of laches. But as a general rule, a petition will be deemed untimely if not filed within 60 days after the trial court’s order. There may be circumstances where the Court of Appeal will find justification for filing beyond the 60 days, and in some cases will deem a petition untimely even if it is filed less than 60 days after the challenged order, but the diligent trial attorney will always aim to file a petition within a month, and within 60 days at the most. Unless, of course, the petition is specifically authorized by a statute, in which case the filing deadline will usually be set out in the statute – and may be very short, barely over a week.
Fifth, the diligent trial attorney will consider involving an appellate lawyer before the critical motion is even heard. Appellate writ practice has developed over time by custom and lore, and as a result success seems to owe as much to art as to science. Experts tend to know about these things and can play a critical role in appellate writ victory.
Keeping these tips in mind, diligent trial attorneys will plan ahead when a critical motion comes on the horizon and set themselves up for writ petition success.
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. Pablo Drobny is of counsel with the firm. He served as the lead appellate research and writs attorney in Division Seven of the California Court of Appeal’s Second District for more than 36 years. Find out more about Pablo and the California Appellate Law Group 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.