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…
“Octa-Mom” wins one in court
“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010). Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss,…
Got a stay? Challenge the judge anyway!
Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case. No dice. And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court. Tri Counties asserted that the the judge…
- Appellate Procedure, California Procedure, Discovery, Mandamus/Prohibition, Standard of Review, Writ Practice
An Important Discovery Ruling Overcomes a Deferential Standard of Review
For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.) Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision…
Reviewing State Administrative Agency Decisions
If you wanted to find out the scope of review and the standards of review employed in administrative mandate proceedings generally, you could do a lot worse than look at the discussion at pages 13-14 of Schutte & Koerting, Inc. v. Regional Water Quality Control Board, case no. D048830 (4th Dist. Jan. 16, 2008), which sums it up very nicely.
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…
Which Bystanders to Personal Injury Can Claim Emotional Distress?
a interesting issue of tort liability is presented by Ra v. Superior Court, case no. B19766 (2d Dist. August 15, 2007). The opening paragraph of the opinion does such a good job of framing the issue that I quote it in full here: In Thing v. La Chusa (1989) 48 Cal.3d 644, 667 (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specificallylimited recovery to a plaintiff who “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to…