A Writ Petition Summarily Denied May Be Raised Again Later

Timothy Kowal, Esq.
August 4, 2021

Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the court summarily denied the writ petition. Later, the court realized writ review was appropriate, and so treated the appeal as a writ.

The procedural curiosity probably came to nothing – the appeal-turned-writ was unsuccessful anyway – but it underscores how difficult it can be to get a writ petition off on the right foot.

LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.) involved appellant's fairly serious million mechanic's lien on real property, clocking in at over $3.1 million. But the trial court reduced appellant's $3.1 million lien to a paltry $55,000.

The appellant thought this a rather terminal blow to its lien, so it appealed. To be safe, it also filed a petition for a writ of mandate. But the Court of Appeal summarily denied that writ petition, without an opinion.

Orders Reducing a Mechanic's Lien Are Not Appealable:

The order reducing the mechanic's lien was an interlocutory order. The general rule is that only final orders are appealable. One corollary of the “one final judgment” rule is that ““ ‘interlocutory or interim orders are not appealable.’ ”” (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 133.) An order is interlocutory—and hence generally not appealable—if, notwithstanding the order, “issue[s are] left for future consideration” by the trial court. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.)

Here, the validity and amount of the debt that appellant claimed are still “left for future consideration.”

The appellant cited a good case, (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318 (Howard S. Wright Construction)), that held that removing a mechanic's lien is an appealable order. But the court distinguished that case here because the trial court here did not "remove" the lien, it just reduced it – albeit by 98%.

(Tip: If you are seeking to remove a mechanic's lien, consider reducing it to a fractional amount instead. This could stave off an immediate appeal.)

The appellant also argued the order reducing the mechanic's lien was a final appealable order, even though it was interlocutory, because the order directed the appellant to record the order in the public records. This made the order a mandatory injunction, the appellant argued, and injunctions are appealable. (Code Civ. Proc., § 904.1(a)(6).) The court did not buy this: the direction to record the order was merely a ministerial act, and nearly every order involves some ministerial act. Treating such ministerial acts as injunctions would turn every order into an injunction.

The appellant also raised a much stronger argument for the validity of the order reducing the lien: the appealability statute at Code of Civil Procedure section 904.1(a)(8) makes appealable all orders "to redeem real ... property from ... a lien thereon, determining the right to redeem and directing an accounting." That seemed to fit closely.

The court rejected this too. The court noted this was not an action to "determine the right to redeem," and the order did not "direct an accounting." So section 904.1(a)(8) did not fit.

The Court Reviewed the Nonappealable Order as a Petition for Writ of Mandate:

But wait: Is that really the right way to render section 904.1(a)(8)? The court did not cite any other authority. And the court offered no further textual analysis.

Rather than take up further analysis, the court took up review on a writ basis instead:

"We need not linger on this question of appellate jurisdiction, because we retain the discretion to construe A&R's appeal as a petition for a writ of mandate (Olson v. Cory (1983) 35 Cal.3d 390, 400-401), and elect to exercise that discretion in this case."

In a footnote, the court noted:

"We acknowledge that this court has already rejected a writ from A&R in this case which presented the same arguments asserted here. However, as that writ was summarily denied, we find it appropriate to issue this opinion and explicitly address the merits of A&R's arguments."

Interestingly, the court did not analyze the factors normally applicable before courts will review a direct appeal on a writ basis. (See the discussion in Freeman v. Channels.)

The court denied the writ.

The case prompts one to ask: How many other writ petitions that are legitimately worthy of writ review are getting waste-binned during the court's rushed initial review?

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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