You have just returned from a law and motion appearance and have given your client the unpleasant news that the court ruled in favor of the opposing party. Your client, having heard you insist that the ruling is wrong, asked what could be done about it. You replied, "Well, we could file a writ." Your client has authorized you to do so. What do you do now?

This article assumes the basics: you have determined what type of writ to file and when you must file it, and you understand what must be done to comply with all of Rule of Court 56's technical requirements, including preparation of the appropriate appendix. This article focuses on how you may increase your chances of "success"; i.e., persuading the Court of Appeal that the adverse ruling in your case deserves appellate review now rather than on an appeal following entry of an appealable judgment or order. Of course, "success" at this stage does not mean you will prevail on the merits.

The argument why the ruling at issue is "writ-worthy" should be the first or second section of your petition. The argument warrants such prominence because, for both legal and pragmatic reasons, the Court of Appeal summarily denies most writ petitions filed. From the legal perspective, an appellate court may grant a writ petition only when it concludes that an appeal from an appealable judgment or order would not be an adequate remedy for the alleged error. C.C.P. §§ 1086, 1103. An appeal does not become an inadequate remedy merely because the ruling at issue is wrong. Nor is an appeal an inadequate remedy because the petitioner must wait until the trial court has entered an appealable judgment or order. See Phelan v. Superior Court, 35 Cal.2d 363, 370-71 (1950). And from a pragmatic perspective, the appellate courts have heavy caseloads that prevent them from granting every potentially meritorious writ petition. Further, the justices and writ attorneys know from long experience that, even though an interlocutory order is a potential ground for appeal, cases often settle before trial or before appellate briefing occurs. At the very outset of the petition, therefore, counsel should marshal all the reasons why the ruling at issue, in addition to being wrong, represents an exceptional circumstance in that it either would be effectively unreviewable on appeal or has one or more of the recognized characteristics justifying writ review.

There are a several types of rulings that are effectively unreviewable on appeal or are not appealable at all. For example, the appellate courts rarely grant petitions from discovery rulings. They are more inclined to do so, however, when the order compels the disclosure of privileged information, such as lawyer-client or physicianpatient communications. E.g., Mitchell v. Superior Court, 37 Cal.3d 591 (1984). In that circumstance, the very fact of disclosure would cause prejudice, which an appeal cannot remedy. Similarly, an order denying a motion to quash based on lack of personal jurisdiction is not reviewable on appeal. The reason - if the defendant does not file a writ petition, it must answer the complaint, which constitutes a general appearance and a waiver of the jurisdictional objection. C.C.P. § 418.10(b),(c). Orders that are not appealable, and thus are reviewable only by writ, include rulings regarding the disqualification of a judge [C.C.P. § 170.3(d)], and rulings regarding expungement of a lis pendens [C.C.P. § 405.39]. If the order in your case falls into one of these categories, be sure to emphasize that fact as the reason why writ review is justified.

However, the Court of Appeal will not automatically grant your writ merely because the order at issue fits within one of these categories. Further, the order at issue often will not be one in which an appeal by definition is an inadequate remedy or for which a writ petition is the exclusive avenue of appellate review. In virtually any case, therefore, you can improve the chances of success by demonstrating that the order has one or more of the characteristics that the appellate courts have relied on to justify writ review.

Justification for writ review often arises after new statutes or amendments to existing statutes take effect, especially when they dictate the requirements for a frequently asserted claim or procedures the trial courts and parties must follow. E.g., DeCastro West Chodorow & Burns, Inc. v. Superior Court, 47 Cal. App. 4th 410 (1996) (analyzing amendments to C.C.P. § 437c). In this circumstance, writ review can promote judicial economy because a published opinion will provide guidance on how the new legislation should be applied. A closely related justification for writ review often arises when a new wave of litigation involves novel issues about matters such as the meaning of standard insurance policy language or the reach of an existing cause of action. E.g., Bank of the West v. Superior Court, 2 Cal.4th 1254 (1992) (insurance policy language). This type of litigation frequently results in conflicting rulings on pivotal issues. Once again, writ review can provide helpful guidance before the early cases are resolved and prevent unnecessary appeals. In this situation, counsel should explain in detail that numerous pending cases involve the same issues and that the trial courts have issued conflicting rulings on them. To prove the point, you should collect and ask the appellate court to take judicial notice of these other orders. See Cal. R. Ct. 22(a). Writ review is not limited, however, to cases having such broad implications. The Court of Appeal will grant a writ when an order will prevent a substantial part of the case from being tried or result in a trial when a dispositive motion should have been granted. E.g., Fair Employment & Housing Comm'n v. Superior Court, 115 Cal. App. 4th 629 (2004) (demurrer erroneously overruled).

In sum, the argument why the Court of Appeal should grant your writ requires creative analysis. Place yourself in the shoes of the justices and writ attorney who will make the initial evaluation of your petition. Then explain in concrete terms why the order at issue deserves appellate review before the case is fully resolved. The more you can do to make your petition stand out from the run-of-the-mill petitions the court typically receives, the greater your chances of success will be.

January / February 2006