Written by attorney Herb Fox

Extraordinary Writ Petitions in the California Courts of Appeal

Writ petitions at the state Courts of Appeal are called “extraordinary" for good reason. They are frequently futile – but often provide the only hope for relief from a devastating interlocutory order. They are sometimes mandatory (i.e., the order cannot be appealed even after entry of judgment) but remain discretionary with the Court of Appeal. They can be expensive but necessary. Many interlocutory orders can only be reviewed by way of a writ petition, and the deadline for filing that petition can be hair-trigger short. An order denying or granting a motion to disqualify a judge, for example, can only be reviewed by a writ petition filed within 10 days of service of the written order (Civ. Pro. §170.3(d)). See also orders denying a motion to quash service of summons (10 days – Civ. Pro. §418.10(c)); orders granting or denying motions to expunge a Lis Pendens (20 days – Civ. Pro. §405.39); orders on good faith settlements (20 days – Civ. Pro. §877.6(e)); and orders on motions to change venue (20 days – Civ.Pro. §400). Other interlocutory orders may be appealable after judgment, but by then the damage has long been done (e.g., discovery orders, motions to continue trial date, etc.). These petitions must be filed as soon as possible, but no later than the time for filing a Notice of Appeal if the order was appealable. Finally, still other interlocutory orders are appealable as a matter of right. These include orders on Special Motions to Strike (anti-SLAPP – Civ. Pro. §425.16(i)) and orders granting or denying injunctive relief – including spousal and child support and move-away case in family law. For these orders it is inappropriate to seek discretionary writ relief and a Notice of Appeal must be filed within the applicable deadline, or the right to appeal is forever lost. Thus whenever you are facing an important motion that may adversely affect your client and/or your case, be sure to ascertain whether review is available by writ or by appeal and calendar the deadlines. Call an appellate specialist if you need help. If you expect to seek the assistance of appellate counsel, do so as early as possible to assure that there is adequate time to assess the merits of and prepare the writ petition.

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