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.