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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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,…
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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…
- Appellate Jurisdiction, Appellate Procedure, California Court of Appeal, California Procedure, Elections, Writ Practice, Writ Review
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…