Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are so slim.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.

Can your trial judge give you a boost toward getting appellate review of a non-appealable order?

In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Services Group, Inc. v. Superior Court, case no. B256266 (2d Dist., Jan. 22, 2015) is a reminder that this tool for obtaining early appellate review is at the disposal of parties aggrieved by a non-appealable order and reluctant to petition for writ relief because of the generally long odds against having a writ petition heard on the merits.

Section 166.1 provides:

Upon the written request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in any interlocutory order a belief that there is 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. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal.

Audio Visual Services Group cites Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1330, fn. 6: “The intent is evidently to encourage the appellate court to review the issue on the merits if the losing party files a petition for extraordinary relief.”

Why do I qualify my answer to the the question posed in the title of this post? It is because I wonder how often such certifications actually convince the appellate court to review a petition on the merits when it would not have done so otherwise. After all, every writ petition tries to convince the court that the particular circumstances are “special” enough to warrant appellate review, frequently citing the same factors stated in section 166.1 (particularly when it comes to orders overruling demurrers or denying summary judgment or summary adjudication).

So, does the concurrence of the trial judge offer any real assistance? It is a question I will pose in future discussions with appellate justices. But until then, my approach is that it sure can’t hurt.

If you think your case has been helped or hurt by a section 166.1 certification, let me know in a comment to this post.

Update: AAAArrrggghhh! I cannot get comments opened up in WordPress at the moment. No matter how many times I change the setting, comments remain closed. But I would still like to hear from you if you have experience with section 166.1 influencing your case. Email me at I will update the post, as appropriate, to reflect your experience.

Collateral Estoppel and the Exhaustion Doctrine

Must a whistleblower whose claim is denied at the administrative level exhaust his judicial remedies by petitioning for mandamus in the Superior Court before he may file a civil suit under the Whistleblower Act? That was the apparent question in CALPERS v. Superior Court, case no. C054168 (3d Dist. Feb. 15, 2008), where CALPERS contended that its demurrer to the civil suit should have been upheld because the plaintiff, whose whistleblower administrative claim had been denied by the State Personnel Board, did not challenge the SPB executive officer’s findings by petitioning for mandamus.

The answer is, “it depends.” That’s because the issue isn’t so much whether the statute requires exhaustion — it doesn’t — but because the findings have collateral estoppel effect. If the findings are not enough to bar a civil claim, then the plaintiff can proceed despite not petitioning for mandamus. But if the administrative findings preclude the civil claim, the whistleblower needs to challenge adverse findings successfully to preclude their collateral estoppel effect:

If, as plaintiff would like, the statute and the amended regulation were divorced from a complicated body of case law on the binding effect of administrative findings in subsequent litigation, we could accept the plain reading of the statute, bolstered by the regulation, and conclude a whistleblower need not be encumbered by the administrative findings of the SPB in his civil action under the Whistleblower Act. We are not, however, at liberty to pretend the thorny problems posed by collateral estoppel do not exist. As a result, even if we were to accord great weight to the SPB’s construction of [Government Code] section 8547.8’s administrative exhaustion requirement, we conclude that the plain language of the statute simply does not resolve the more difficult dilemma posed by collateral estoppel.

The court affords collateral estoppel effect to the executive officer’s findings — and thus finds the civil claim barred —  even though the findings were based solely on documentary evidence and argument and the whistleblower’s request for a full evidentiary hearing was denied:

Thus, it appears the investigation became a contested proceeding based on opposing evidentiary submissions. The executive officer served as a neutral adjudicator and was required to and did consider the parties’ documentary evidence as well as arguments. “[S]o long as the agency is required by law to accept and consider evidence from interested parties before making its decision,” the proceedings, even if entirely documentary, satisfy the hearing requirement of Code of Civil Procedure section 1094.5. [Citations.]

Since, as we have concluded, the SPB’s decision was made as the result of a proceeding in which evidence was required to be given and considered by the executive officer, its validity can be challenged by a petition for a writ of mandate. Here, plaintiff chose not to challenge the adverse findings by way of a petition for a writ. As a result, those findings cannot be relitigated in a whistleblower civil action and respondent court erred by overruling PERS’s demurrer.

This decision initially struck me as fundamentally unfair. No one could complain of collateral estoppel effect for findings made after a full evidentiary hearing. But in this case, the whistleblower’s request for an evidentiary hearing had been denied and the findings were based exclusively on documentary submissions. Even the court, in light of inherent flaws it notes in the administrative procedure, seems to regret that it must issue this decision :

Without exempting whistleblowers from pursuing the administrative proceedings it requires them to commence, we must apply traditional principles of collateral estoppel, and despite the distinct infirmities present in the administrative proceedings, we conclude that any adverse findings rendered by the SPB have a preclusive effect in subsequent civil litigation unless challenged by a writ of administrative mandamus.

Review Granted Regarding “Suggestive” Palma Notice

A hat tip to Ben Shatz for promptly alerting me last week that the Supreme Court granted review in Brown, Winfield & Canzioneri, Inc. v, Superior Court (Great American Insurance Co.), case no. S156598. I haven’t posted until now because I’ve been mulling over the implications of the case — and I’ve been otherwise swamped.

Review was granted on an interesting issue regarding writ practice — an area that is mysterious enough for many litigators even without the extra twist thrown in by the Court of Appeal in this case. This is a tough one to follow, as the Court of Appeal did not issue a decision. So, there’s nothing on Westlaw. What happened must be gleaned from the Court of Appeal docket and Supreme Court docket.

If you are not familiar with writ procedure, you may want to check out this article at LACBA’s site before reading any firther.

What the Court of Appeal did in Brown — at least, as far as I can make out from the dockets — resulted in a weird disposition of the case that did not follow any of the usual “tracks” in a writ proceeding. The Court of Appeal issued a Palma notice indicating its intent to issue a peremptory writ in the first instance, but the notice apparently was “suggestive” to the respondent court (in the manner set out in the Supreme Court’s review order, reproduced in part below) and gave the trial court the “power and jurisdiction” to change its order. Apparently as a result, on the very next day after the Palma notice issued — before the real party in interest could file an opposition — the superior court vacated its prior order.

The Supreme Court designated the following issues for briefing and argument:

(1) May a Court of Appeal issue a “suggestive Palma notice” (see Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171) – that is, a notice that discusses the merits of a writ petition with citation to authority, determines that the trial court ruling was “erroneous,” and gives the trial court the “power and jurisdiction” to change its order?

(2) If such an order is proper, absent exceptional circumstances, may it be issued without giving the real party in interest an opportunity to file opposition?

The biggest issue here seems to be the suggestiveness of the Palma notice, since the Court of Appeal usually doesn’t write in depth on the merits until it has considered an opposition. Any Palma notice implies that the Court of Appeal has made at least a preliminary determination that the trial court ruling was incorrect, and real parties are always at risk that the trial court will vacate its ruling, but it’s the extra “push” given by the Court of Appeal in this case that seems to have caught the attention of the Supreme Court.

Medical Marijuana Buzz . . . and Writ Standing, Too

Looks like the new marijuana radio talk show on Inland Empire radio station KCAA (which is also available via podcast, and which I learned about from this post at Drug Law Blog) will have plenty to talk about tomorrow. Yesterday, in City of Garden Grove v. Superior Court (Kha), case no. G036250 (4th Dist. Nov. 28, 2007) the Court of Appeal denied a writ petition by the City of Garden Grove (joined by 4 law enforcement associations and 15 cities all over the state as Amici Curiae) seeking to vacate a trial court order to its police department to return medical marijuana seized from a person that the DA declined to prosecute for lack of evidence once the DA confirmed that the marijuana was legally possessed under California’s medical marijuana law at the time it was seized.

Noting that the city’s predicament of being caught between the state’s medical marijuana law and the federal illegality of marijuana presented “terra incognita” that required “analytical accouchement,” the court summarized its holding at the outset of its opinion:

[W]e are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less.

We may soon learn how persuasive the opinion is. Drug Law Blog posted just yesterday about a Colorado case in which a trial court ordered the return of marijuana seized from a couple who grew it for their own medical use and also dispensed it to others for medical use. The Colorado appellate court (should the case get there) is sure to examine Garden Grove (as well as State v.Kama (2002) 178 Ore. App. 564).

There is an appellate procedure angle to the case, as well. (I’ll leave any detailed discussion of the merits to Drug Law Blog or others sure to cover them). The issue is standing.

The attorney general challenged the city’s standing to bring the petition, which required a lengthy explanation from the court about whether the city had the “beneficial interest” normally required to confer standing on a petitioner. As the court notes, for a party to be “benefically interested,” it must have “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”

The court notes initially that the city’s purely ministerial role in returning the marijuana precludes a beneficial interest generally, and that the city cannot claim a beneficial interest arising from the risk of prosecution for violating federal law because that risk does not exist in light of the federal immunity statute (21 U.S.C. § 885(d)). Moreover, the city has nothing to lose by returning the marijuana because it was not needed as evidence or to further an investigation.

But the court finds standing anyway:

That said, we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use Higher Grounds marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.

Moreover, media reports indicate the question of whether local authorities must return lawfully seized marijuana to its owner once state criminal proceedings have been terminated in the owner’s favor is a topical issue that has produced inconsistent outcomes throughout the state. [Citing news coverage of inconsistent actions taken by various law enforcement agencies throughout the state.]

These considerations militate strongly in favor of granting the City standing. [Citations.] So does the fact this case implicates constitutional concerns respecting the relationship between state and federal law. Courts have recognized that, consistent with our federalist system of government, state political subdivisions should be given standing to invoke the supremacy clause to challenge a state law on preemption grounds. [Citations.] Standing is also favored if an interested party may otherwise find it difficult or impossible to challenge the decision at issue. [Citations.] And here it appears quite likely the City will not be able to obtain judicial review of the trial court’s order unless it is afforded standing in this proceeding. For all these reasons, we conclude the City has standing to challenge the trial court’s order.

When considering writ review, don’t forget the importance of public interest considerations. After all, you need all the help you can get in beating that 90%+ summary denial rate.

UPDATE (11/29/07): As expected, Alex Coolman weighs in on Garden Gove in this post at Drug Law Blog. It’s a good discussion of the merits, and Alex suggests the Supreme Court should consider Garden Grove’s reasoning as it decides Ross v. Ragingwire, which has already been argued.

UPDATE (11/30/07): More coverage of the case:, Los Angeles Times, Medical Marijuana of America.

Court of Appeal to the Rescue Again

My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting.  Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week.

The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575.  While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.”  The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the trial court order pending appeal).

After the appeal was fully briefed (apparently), respondent moved to dismiss the appeal on the ground that the genetic testing order was not appealable.  The court of appeal declined to decide the appealability of the order, opting instead to exercise its discretion to treat the appeal as a petition for writ of mandamus:

We do not reach this issue [of appealability] because we exercise our discretion to treat the appeal as a petition for a writ of mandate, in the interests of justice and judicial economy.  [Citation.]  The merits of the issue have been fully briefed by the parties, and this is a case in which the failure to consider the issue at this juncture would be a dereliction of our duties as a reviewing court.  We deny the motion to dismiss the appeal as moot.

The Opening Brief‘s Tom Caso poses some logical questions in light of these procedural irregularities:

This raises an interesting question with regard to conversion of the first writ into a writ of supersedeas.  As noted above, the purpose of that writ is to preserve the court’s appellate jurisdiction (Cal Rule of Court 8.112; CCP § 923).  If the court was going to treat the matter as a petition for writ of mandate in the end, was it necessary to convert the first writ into a writ of supersedeas?  Does this give the real party grounds to argue that the court acted in excess of its jurisdiction in granting that writ and the immediate stay?

I suspect that the real party in interest (the respondent, before the court of appeal decided to treat the appeal as a writ petition) wouldn’t get very far with this “excess of jurisdiction” argument.  A party may seek an immediate stay pending the outcome of a writ petition.  Assuming the supersedeas writ somehow dissolves with the conversion of the appeal to a writ petition, that “conversion” apparently did not take place until the court filed its opinion ordering the issuance of the writ of mandamus.  Any stay, valid or not, became moot at that point.

But suppose the court of appeal had issued an order on the motion to dismiss stating that it was denying the motion as moot because it was treating the appeal as a petition for writ of mandamus, then did not decide the petition for several more weeks.  In that situation, the respondent/real party might have a case that the supersedeas writ issued earlier was no longer in effect.

However, I doubt this technical point would avail the respondent/real party.  It seems unlikely that a trial court would treat the writ of supersedeas as having lapsed without an order from the court of appeal.  In addition, I think it highly unlikely the court of appeal would have left that issue unresolved.  Upon issuing its order denying the motion to dismiss as moot and treating the appeal as a writ petition, it most likely would have construed the first writ petition and the converted appeal together as a petition for writ of mandamus with a request for immediate stay and issued an order granting the stay.

The reason I suspect this is that the court of appeal usually goes out of its way to save appeals and its jurisdiction, and will jump through hoops to construe procedure the way that best resolves the case.  If memory serves, in the case I blogged about here, for example, the court stretched to construe the order appealed from as several alternate orders in a vain effort to find appellate jurisdiction.

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Mandate Unavailable to Compel Property Reassessment

In Little v. Los Angeles County Assessment Appeals Boards, case no. B195610 (2d Dist. Sept. 27, 2007), the court of appeal holds that a property owner may not challenge a property assessment by way of petition for writ of mandate under Code of Civil Procedure section 1085.

During the real estate downturn of the 1990s (check this out for more details), Little had successfully sought a reduction in the assessment roll base year value for his multi-unit property from $790,000 to $480,000, based on a decline in value. He then sought and obtained a second reduction to $288,000, which increased to $304,000 by 2003 from annual 2 percent increases. When the asessor’s office notified him in 2004 that it was reinstating the assessed value to $480,000, Little filed an application for a change in assessment back to $304,000. He contended that the $480,000 base year value was incorrrect because the assessor mischaracterized the type and size of the units. When that application was denied, Little filed a petition for writ of mandate in the superior court.

The assessor demurred to the petition, contending that because Little had an adequate remedy at law by way of a complaint for refund of property taxes, mandate did not lie. The superior court overruled the demurrer and denied the petition on the merits.

The court of appeal holds that the demurrer should have been sustained:

Little’s petition below sought the issuance of a peremptory writ directing the Assessor to correct the property’s base year value on the assessment roll to the 1996 base year value of $288,000, and to assess the property for 2004, 2005 and all subsequent years based upon the base year value of $288,000. Thus, Little’s petition impermissibly sought to enjoin the collection of future taxes.

California Constitution article 13, section 32, provides: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.”

(Emphasis in original.)

Writ Review Appropriate where Discovery Ruling Threatens Privilege

You’ve seen me complain before about the court of appeal reviewing writ petitions on the merits without saying why.  After all, there has to be something special in every instance of review, as more than 90% of writ petitions are summarily dismissed.

Ombudsman Services of Northern California v. Superior Court, case no. C054737 (3d Dist. Sept. 5, 2007), the court is very explicit about why it reviewed the writ petition on the merits (citations omitted):

“Although writ review of discovery rulings is generally disfavored, interlocutory review by writ is the only adequate remedy when, as here, a court compels the disclosure of documents or information that may be subject to a privilege, because ‘once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.’ [Citation.]”  Writ review is particularly appropriate here to protect the confidential records of third persons who are not parties to the underlying litigation below, who have had no notice of the ordered disclosure, and who, as a result, have had no opportunity to object. OSNC properly asserted the privacy rights of those third persons affected by the discovery order of the trial court.

It figures that the court of appeal would be very explicit in a case where the reason for review would probably have been rather obvious without the explanation.  But I won’t look a gift horse in the mouth.  Instead, I shall just politely ask: “More of this, please.”

Grand Jury Secrecy vs. Civil Rights Plaintiff’s Right to Discovery

If your civil rights lawsuit alleged you were imprisoned for 24 years for a murder you didn’t commit and your conviction was based on the perjured testimony of a jailhouse informant, you might want to take a peek at the records of a grand jury investigation into the misuse of such informants during the time you were convicted.  But there’s that pesky issue of grand jury secrecy, so the trial court rules that you have no right to access those records.

This is what happened to Thomas Lee Goldstein, but he has a second chance after Goldstein v. Superior Court, case no. B199147 (2d Dist. August 23, 2007), in which the Court of Appeal reverses and remands to the trial court to consider Goldstein’s motion under the appropriate test.  The test announced in Douglas Oil Co. v. Petrol Stops Northewest (1979) 441 U.S. 211, 222 governs because Goldsteing is not seeking public disclosure and is willing to abide by a protective order.

Under that test, parties seeking grand jury material in federal court must make a particularized showing that (1) the material they seek is needed to avoid a possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only material so needed.

This case also illustrates a principle of writ review.  As the court notes at footnote 1 of its opinion, Goldstein filed a contemporaneous appeal from the order denying his motion for access to the grand jury records.  The court decided the issue on review of the writ petition because “it appears the issue “is one of importance that should be resolved promptly.”

Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action

The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites.  Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA.

The Ninth Circuit explains the prerequisites for application of the exception (citations omitted):

Jurisdiction exists in only a “small class” of cases that are deemed “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”  To qualify as a collateral order suitable for appellate review, an order must: 1) “conclusively determine the disputed question”; 2) “resolve an important issue completely separate from the merits of the action”; and 3) “be effectively unreviewable on appeal from a final judgment.”

The court finds that the order denying the motion to issue a notice of collective action would not be “unreviewable on appeal.”  This standard is met only where “the legal and practical value of [the right at stake will] be destroyed if [ ] not vindicated before trial.”  (Citations omitted.)  The court rejects plaintiffs’ claims that some employees may lose their chance to litigate:

Appellants argue that the statute of limitations will continue to run, and that some employees may lose their opportunity to participate in a collective action if they wait until after an appeal from final judgment. Although employees who may be similarly situated but have not opted in to the action are not bound by its conclusion, and may pursue their actions individually, [citation], we understand Appellants’ concern. However, these arguments have been made in the context of class action suits as well, and it is well established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23.  [Citations.]  Although, as we have pointed out, there are differences between a collective action brought pursuant to § 216(b) and a class action brought under Rule 23, those differences are not relevant to whether we may exercise collateral order jurisdiction.

Another interesting point about the case is that the plaintiffs filed an appeal and a writ petition — a practical tactic when the appealability of the order is in doubt.  Here, however, it doesn’t pay off.  The same factors that defeat appellate jurisdiction also defeat the writ petition.

Writ Opinions

When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits.  Too frequently, a writ opinion is silent on this question.

I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions.  This is probably because its decisions usually evaluate the Bauman factors, as we are reminded by Douglas v. United States District Court for the Central District of California, case no. 06-75424 (July 18, 2007):

Because a writ of mandamus is an extraordinary remedy, we have developed five factors that cabin our power to grant the writ:

1. “The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.”

2. “The petitioner will be damaged or prejudiced in a way not correctable on appeal.”

3. “The district court’s order is clearly erroneous as a matter of law.”

4. “The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.”

5. “The district court’s order raises new and important problems, or issues of law of first impression.”

Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977).

I wish the California Court of Appeal was as methodical.  It would make for a much better developed body of law on when the court will exercise its discretion to review a writ petition on the merits.

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An Appealable Discovery Order

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

Election Contest Not Appropriate for Writ Review

In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges.  In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been sworn in to office.  But the court also evaluates the classic factors for determining the appropriateness of writ review (see Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266) — at least, those that it finds applicable to a petition brought after trial, when appeal is readily available.  Since the legislature had specifically provided for relief by way of appeal (Elections Code section 16900) and expedited that relief by giving election cases preference on appeal (Code of Civil Procedure section 44), , the court finds that the petitioner has an adequate remedy by way of appeal.  In the absence of any constitutional question, conflict in trial court decisions, or impending elections that might be affected by the statewide ramifications of an ultimate ruling, the court holds that writ review is inappropriate in this case.

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