Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Writ Petitions

In light of split on appealability of orders on motions for good faith settlement, this appeal is dismissed as untimely

While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the denial of its motion in Armstrong Townhomes, LLC v. Milgard Mfg. (D1d2 Mar. 9, 2023 No. A164469) (nonpub. opn.).

The problem with the notice of appeal was it was filed 68 days after the notice of entry of order—too late. (Recall, however, that writ petitions are not subject to the jurisdictional filing deadlines.)

So the Court of Appeal asked the defendant to file a letter brief explaining why the appeal should not be dismissed. Here, the defendant had taken the position that the appeal was filed only after the Court of Appeal had summarily denied a writ petition—yet there was no writ petition in the record. What, the court wanted to know, was the defendant talking about?

But the defendant did not file the invited letter brief. Counsel sent the clerk an email indicating they “plan on submitting a letter brief,” but due to preparation for an upcoming trial, they needed an extension, which the court declined.

The requested brief having never been filed, the court dismissed the appeal as untimely.

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HOA May Go Forward with Representative Action for Construction Defects

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule.

But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may be reviewed on a petition for writ of mandate.

But there was still one more problem with the homeowner’s association’s writ petition in River’s Side at Washington Square Homeowners Ass’n v. Superior Court (D3 Mar. 6, 2023 no. C095860) 2023 WL 2364423. After the trial court sustained the defendants’ demurrer on the HOA’s construction defects claims on standing grounds, the HOA filed an unsuccessful motion for reconsideration. By the time the HOA filed its writ petition, it had been 95 days since the notice of entry of the order, and 33 days after the order denying reconsideration.

So the writ petition was untimely, right? And appellate deadlines are jurisdictional, right?

No, not on writ petitions. The delay was not unreasonable.

One more useful bit from the case: Another reason the Court of Appeal readily granted writ review was that the Superior Court certified its order sustaining the demurrer under Code of Civil Procedure section 166.1, indicating that the threshold standing issue “raises a controlling question of law as to which there are substantial grounds for difference of opinion, and there was virtually no chance the case would settle until that issue is resolved.”

This factored in the Court of Appeal’s analysis in granting writ review.

If a key question of law is involved in an interlocutory order denying a demurrer, motion for judgment on the pleadings, or motion for summary judgment, consider asking the trial court to certify the question for review. You might entice the trial judge further if resolution of the issue would facilitate a settlement.

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"Is it going to matter?” Justice Zelon’s big criteria on writ petitions

“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely.

If the issue is going to be dispositive of the case so that the case would have to be retried, however, that is a good candidate for a writ. “The court does understand that the last thing you want to have happen is to have a case get fully tried and then retried.”

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A Timely MSJ Is Entitled to a Timely Hearing, Appellate Court Holds

Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial court denied it, telling the defendant that, even though his MSJ was technically timely, he still should have filed it earlier.

That’s wrong, and the Court of Appeal published its opinion granting a peremptory writ. The trial court’s “calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion.”

The court published the decision “to provide guidance on the deadline for filing a summary judgment motion that is served electronically.”

The Upshot: The court’s refusal to hear a timely-filed motion is one of the few areas where the Court of Appeal may be inclined to grant writ relief. So if you have a timely righteous motion, don’t let the trial court deny you a hearing just because of local rules or department calendaring preferences.

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Writ Petitions Are Won or Lost in the First Paragraph

When you have a legal emergency and you need the Court of Appeal to act right away, you need writ relief. But less than 10% of writ petitions are granted. So how do you get the court’s attention?

Justice David Thompson spent more time on his court’s writ panel over the last decade than anyone, and here is his advice:
You have to demonstrate why your case is writ-worthy in the first paragraph.

The first paragraph.

And the big thing you have to explain is: You are going to get a chance to appeal at the end of the case—why isn’t that enough? Why do you get to jump the line?

Also consider highlighting an interesting legal issue: some justices may be inclined to grant writ review to write on an issue they find interesting (though Justice Thompson does not endorse this school of thought).

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“You Know It When You See It”: Justice Thompson (Ret.) on Writ Relief and Judicial Philosophy

Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and tends to be direct—particularly at oral argument.

Justice Thompson discusses his more stringent judicial philosophy when it comes to publishing opinions, and granting writ relief. But he does favor tentative opinions and the use of focus letters to make for more effective oral argument.

Justice Thompson also provides some hard-nosed advice to lawyers:

• On writ petitions: If you don’t convince the panel in the first paragraph, you’ve lost. (But some justices might be more lenient.)

• On briefing: Get the basics right. Follow the Rules of Court. Explain how the trial court’s error resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record.

• On using “signposts” in briefing: Transitions between sentences, paragraphs, and thoughts are the way good writers hold their reader’s hand through your brief. And “moreover” is a substandard signpost.

• On doomed appellate strategies: Rearguing the same theory that lost at trial.

• On settling on appeal: If the case hinges on a key legal issue, a neutral with experience on the appellate bench may soften a hard position and help bridge a previously insurmountable gap.

• On oral argument: Never waive. At least show up and offer to answer questions.

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Why Family Law Writ Petitions Are So Hard

We asked Victoria Fuller, a certified appellate specialist focusing on family law, about getting the appellate court’s attention in family law writ petitions. Showing extraordinary harm in money cases is a tough sell, but it should work in family cases, right?

Victoria explains that it is just just very hard, even when there is genuine irreparable harm like in move-away orders.

In another moment during our discussion, Victoria told us that even family law justices, upon being elevated to an appellate justiceship, have commented they had no idea just how vast is a family law judge’s discretion.

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Winning an Appeal: Our Interview with Author and Attorney Myron Moskovitz

Appellate attorney and author [Myron Moskovitz](http://moskovitzappellateteam.com/team/myron-moskovitz) joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:

- Why appellate courts should provide brief explanations when denying writ petitions.
- Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
- Statements of Decision
- Why the Appellant's Reply Brief may be the most important brief.
- Why you should moot your oral argument before writing your Appellant's Reply Brief.

We also discuss Myron's new book, *[Winning an Appeal](https://store.ceb.com/strategies-on-appeal-2)*. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.

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Increase Your Chances of Success on a Writ

Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there are always reservations in taking a writ. Anne shares some of those reservations with Jeff Lewis and me.

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Supreme Court Directs Appellate Court to Show Cause After Summarily Denying Writ Petition

You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted.

Promptly after the assignment of a judge who was potentially biased against him, the petitioner in Ionescu v. Superior Court (Contra Costa) (D1d3 Aug. 26, 2021) 2021 WL 3782724 (nonpub. opn.) made a challenge for cause under Code of Civil Procedure section 170.1. The judge rejected the petitioner's challenge out of hand as untimely, but on grounds that were pretty clearly faulty.

A writ petition in the Court of Appeal was summarily denied. But the Supreme Court granted a petition for review, and transferred the matter back to the Court of Appeal with directions to vacate its summary denial and to issue an order to show cause why relief should not be granted. The Court of Appeal ultimately issued the writ in favor of the petitioner.

Writ petitions are processed very quickly, which can increase the chances the Court of Appeal could get it wrong. If you have a righteous writ petition, be prepared to seek review in the Supreme Court immediately. As this case illustrates, these things can get turned around.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

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What Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff Calkins

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and me about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why the California appellate courts may tend to go easier on trial courts than federal appellate courts.

Jeff also shares his theory on why California appeals are not as much "fun" as federal appeals (hint: it has to do more with the legislatures than the judges), and disagrees with my proposal that Rule of Court 8.1115 be amended to allow parties to cite unpublished opinions.

Listen to the episode here: https://lnkd.in/gC2hWQJX

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

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Charles Manson's Grandson Not Required to Submit to DNA Testing, Court of Appeal Holds

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. After Manson died in 2017, the probate court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Manson penpal and "murderabilia" collector Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

But there is no authority to require genetic testing under section 6453. So held (and without much trouble, really) the Second District in Freeman v. Channels (D2d2 Apr. 13, 2021) no. B303594 (not published).

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. But the court exercised its discretion to treat the appeal as a writ petition because the improper genetic test "will involve an invasion of Freeman's privacy that cannot be undone," leaving Freeman with "no adequate remedy at law."

So Freeman will get to handle the disposition of Manson's remains. He is legally (perhaps strictly so) the prevailing party.

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