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self-study / Appellate Practice

Avoid common mistakes to give your writ petition a better chance

Baumgold sharon web

Sharon Baumgold

Of Counsel, California Appellate Law Group LLP

Email: Sharon.Baumgold@calapplaw.com

Sharon spent nearly four decades as a lead writ attorney in the 2nd District of the California Court of Appeal in Los Angeles. Find out more about Sharon and the California Appellate Law Group LLP at www.calapplaw.com.

APPELLATE ZEALOTS

In my nearly 40 years as a writs attorney in the 2nd District Court of Appeal, I saw a flood of petitions that made two fatal mistakes: missing the statutory filing deadline and failing to give the appellate court a complete record.

1. Meeting your appellate writ deadline.

If you suspect that you might lose a critical motion and may need to file a writ petition, double check any applicable statute to determine whether there is a time limit for filing the petition. Some writ petitions must be filed only days after notice of the ruling, and where a statute states a time period for filing a writ petition, the appellate court has no jurisdiction to consider a petition filed outside that limit.

For example, on denial of your motion to disqualify a judge, you will have only 10 days after service of written notice of entry of the court's order to file your petition. Code Civ. Proc. Section 170.3(d). If the opposing party hands you such written notice at the end of the hearing, you will have only 10 calendar days from the hearing to file. If you are lucky and opposing counsel serves notice of entry served by mail, you will get a brief extension. Code Civ. Proc. Section 1013(a). So, instead of 10 days, you might have 15 days -- still a very short period of time.

If you seek to challenge the denial of summary judgment or grant or denial of summary adjudication, you will have only 20 calendar days after written notice of entry of the order to file your writ petition. You could have 30 days if, within the original 20-day period, you ask for, and the court chooses to grant, an extension of 10 days. Code Civ. Proc. Section 437c(m)(1).

If there is no statute that governs your motion, you may have a full 60 days to file your petition. However, as a practical matter, you will not have the full 60-day period if an important event is scheduled. For example, if you lose a discovery motion, you must act well in advance of any depositions or due dates for answers to interrogatories set before the expiration of the 60-day period. If you don't, then the Court of Appeal may see the delay as prejudicing the other party (laches) and deny your petition summarily without having reviewed it on its merits.

Unlike the situation with a statutory writ where the appellate court has no jurisdiction to review a late-filed petition, the Court of Appeal has discretion to review a petition filed after the 60-day period. But you will have to present a good reason for the court to exercise this discretion, such as the delay being due to settlement negotiations.

Although you may choose to file a motion for reconsideration in the trial court, note that the denial of a motion for reconsideration does not extend any statutory time period for your writ petition. However, if the superior court grants reconsideration, the time for filing a petition challenging the grant begins to run on the issuance of the new ruling.

When you calculate your time, remember that you are counting calendar days, not court days. The only occasion for including a court day in your calculation is where the last day to act lands on a day the courts are closed, such as a weekend or court holiday. Exclude that day and file the petition on the next day the court is open.

To maximize the time you have to prepare the petition, do not waive notice of ruling at the conclusion of the trial court hearing. It is likely that the successful party will be required to prepare and serve notice on you. With a statutory writ, the time to file a petition begins to run upon service of written notice, so you might gain a day -- or several days.

Finally, given these short deadlines, you should begin work on the petition as soon as you see an adverse tentative ruling, which can also serve as a starting point to develop issues for your petition. If appellate work is not something you're especially comfortable with, consider calling an appellate writs expert then if not before. The Court of Appeal can deny writ petitions summarily without any reasons stated, and writs are procedurally tricky, so you want to do everything you can to get the court to give full consideration to your petition.

2. Preparing the appellate writ record.

After calculating your time to file a writ petition, prepare your record. You should have file-stamped copies of everything you're submitting and will need to submit them yourself.

At a minimum, you need to provide the subject motion and all opposing papers. Cal. Rules of Court, rule 8.486. You will also need to provide any additional documents that the superior court considered in reaching its ruling. Cal. Rules of Court, rule 8.486. For example, on a demurrer or summary adjudication motion, you will need to provide the operative complaint in addition to the motion.

Your record must also include the superior court's minute order and any final orders. You should always have a court reporter for any important hearings. The reporter's transcript gives the court a complete and accurate record of all counsels' arguments and the court's comments, can show how the parties' arguments developed during the hearing and, possibly, the trajectory of the superior court's reasoning to show how it arrived at its ruling. The transcript is particularly helpful where the tentative ruling is in your favor, but, at the end of the hearing, the court does a 180 and rules against you.

If for some reason you do not have a court reporter, you can submit your own declaration of the course of proceedings in support of the petition. You must fairly summarize the proceedings, presenting both your argument and opposing counsel's argument, as well the court's statements that support its ruling. Cal. Rules of Court, Rule 8.486(b)(3)(A). You may also add any of the court's statements that are important to its reasoning or decision. The biggest downside to using your declaration instead of a court reporter's transcript is the chance that the other side may challenge the accuracy of your declaration in its opposition to the petition. Thus, if you do not have a reporter, take meticulous notes during the hearing so that your declaration will be accurate. If opposing counsel challenges the accuracy of your declaration, make sure to file a reply to refute such a challenge.

Finally, if the hearing is reported, order the transcript immediately after the hearing ends, especially since by then you should have a sense of what the court is going to do. If the transcript is not ready when you file your petition, the petition must set forth the date you ordered the transcript and the date you expect to provide it to the appellate court. The filing date "must be a date before any action requested of the reviewing court other than issuance of a temporary stay supported by other parts of the record." Cal. Rules of Court, Rule 8.486(b)(3)(B).

Accordingly, although a successful writ petition will involve much more complexity, keeping these two issues in mind will help you avoid some of the most common mistakes that ruin petitioners' chances.

#318

Ben Armistead


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