When to take a writ and when to appeal

STEPHEN TEMKO CFLS, CALS, AAML

DENNIS TEMKO

Attorneys at Law

1620 5TH Avenue, Suite 800

San Diego, California 92101

(858) 275 3538

“I'm Unhappy with the Court's Decision”- Knowing When to Writ, or to Appeal or to Obtain a Certificate of Probable Cause.

JANUARY 20, 2016

NOON

FIRST WARNING: NEED A REPORTER’S TRANSCRIPT

WHEN ORDERS AND JUDGMENTS CAN BE APPEALED CCP 904.1

WHAT ARE THE TIME LIMITS TO APPAL RULES 8.104, 8.108

STATUTORY APPEALS

One judgment rule.

(a) An appeal, other than in a limited civil case, is to the

court of appeal. An appeal, other than in a limited civil case, may

be taken from any of the following:

(1) From a judgment, except (A) an interlocutory judgment, other

than as provided in paragraphs (8), (9), and (11), or (B) a judgment

of contempt that is made final and conclusive by Section 1222.

(2) From an order made after a judgment made appealable by

paragraph (1).

(3) From an order granting a motion to quash service of summons or

granting a motion to stay the action on the ground of inconvenient

forum, or from a written order of dismissal under Section 581d

following an order granting a motion to dismiss the action on the

ground of inconvenient forum.

(4) From an order granting a new trial or denying a motion for

judgment notwithstanding the verdict.

(5) From an order discharging or refusing to discharge an

attachment or granting a right to attach order.

(6) From an order granting or dissolving an injunction, or

refusing to grant or dissolve an injunction.

(7) From an order appointing a receiver.

(8) From an interlocutory judgment, order, or decree, hereafter

made or entered in an action to redeem real or personal property from

a mortgage thereof, or a lien thereon, determining the right to

redeem and directing an accounting.

(9) From an interlocutory judgment in an action for partition

determining the rights and interests of the respective parties and

directing partition to be made.

(10) From an order made appealable by the provisions of the

Probate Code or the Family Code.

(11) From an interlocutory judgment directing payment of monetary

sanctions by a party or an attorney for a party if the amount exceeds

five thousand dollars ($5,000).

(12) From an order directing payment of monetary sanctions by a

party or an attorney for a party if the amount exceeds five thousand

dollars ($5,000).

(13) From an order granting or denying a special motion to strike

under Section 425.16.

(b) Sanction orders or judgments of five thousand dollars ($5,000)

or less against a party or an attorney for a party may be reviewed

on an appeal by that party after entry of final judgment in the main

action, or, at the discretion of the court of appeal, may be reviewed

upon petition for an extraordinary writ.

AND APPEALS FROM COLLATERAL ORDERS

There are 3 elements to a collateral order. (Sjoberg v. Hastorf (1948) 33 Cal.2d 116,119; Apex LLC v. Kurusfood. com (2013) 222 Cal.App.4th 1010, 1016.)

1) Order final as to the collateral matter

2) the subject of the order is in fact collateral to the general subject matter of the litigation

3) The order directs the payments of money OR the performance of an act by or against the appellant.

Family Law Collateral Orders

Temp. Attorney fees (IRMO Skelly)

Temp. Child support

Temp. Spousal Support

But not Temp. Custody (Lester v Leanne)

IF you don’t appeal these issues after temporary order phase, they are waived.

Normally 60 days from Notice of Entry of Order or service of the Order.

Time can be extended upon filing a valid motion to reconsider, vacate or motion for new trial. YOU MUST READ THE RULE 8.108. VERY TRICKY IT IS THE EARLIER OF THE DATES!

WHEN CAN YOU BIFURICATE AN ISSUE AND APPEAL?

Bifurcated issues: prenupts, alternate valuation dates, post nupts, date of separation (Rule 5.380)
Motion for certificate probable cause (10 days) from order. (Rule 5.392)
Motion to appeal (Ct of Appeal) RUSH RUSH (Rule 5.392.)

WHEN CAN YOU FILE A WRIT?

Excellent discussion in Omaha Indem. Co. v.Super Ct (1989) 209 Cal.App.3d 1266

A writ is an order issued by the reviewing court to an inferior tribunal directing it to do something or prohibiting it form doing something. There are two types of writs, Common law writs and statutory writs. Statutory writs have filing deadlines! Common law writs have equitable time limits such as laches, but considering emergency nature of a writ petition, sooner is much better than later. Rule of thumb 60 days is the outside limit on a common law writ.

Must appear there is no “adequate remedy in the ordinary course of law.” (CCP 1086, 1103) Adequacy generally not tested by speed or expense but need for exceptional circumstances and presentation of irreparable injury if the writ is not granted. (Phelan v. Super Ct. (35 Cal.3d363, 370.) As on appeal, issue must be presented first to the trial court.

1 Temporary award of child custody (Lester v. Leanne)

2 Attorney Disqualification (spector should not be allowed to “hover” over proceedings)

(Apple Computer v. Super Ct. (2005) 126 Cal.App.4th 1253, 1263)

3 Conviction of Contempt (no appeal, writ of habeas corpus only)

4. Sanctions less than $5000 (904.1 (b).)

5. Ruling on Severance Motions

6. Prohibition to prevent court action barred by jurisdictional time limit. (Santa Barbara v. Super Ct. (1966) 240 Cal.App.2d 612.); Enforcement of a void order (De Luca v. Super Ct. (1968) 262 Cal.App.2d 254, 261.)

7. Jurisdictional issues

8. Privilege issues.

9. Stay of trial court order in the appellate court. (Supersedeas Writ Petition)

Statutory Writs. – fail to file writ, no appeal

10. Order denying motion to quash service of process (CCP 418.10 (c); 10 days plus another 20 if requested.)

12. Challenge to grant to disqualify a judge (CCP 170.3(d): 10 days.)

13. Challenge of grant or denial of motion to expunge lis pendens. (CCP 405.39.)

Other Statutory Writs

14. Denial of Summary Judgment (CCP 437c(m)(1)) Note Grant SJM is reviewable by appeal (20 days from entry of order)

15. Venue rulings (CCP 400, 20 day limit)

All time limits must be checked and rechecked.

See Stephen & Dennis Temko article on Family Law Writs for additional examples of when writs have been filed in Family Law cases.

DIFFERENCES IN PROCEDURE BETWEEN AN APPEAL AND A WRIT

Appeal: Notice of Appeal (60 days) & $790, Designation(10 days), Record, Briefs (can be 90 days), Oral Argument Opinion, Petition for Rehearing (15 days), Petition for Review (40 days)
Writ prepare entire record, P&A in 15 days; RUSH RUSH $790, all electronic filing; Red cover, Reasons for Relief!!; Personal Service. KISS rule

2A. Denied, or request informal response, Dismissal or Alternative Writ =Order to Show Cause why relief should not be granted. Return & Reply, written opinion.

Peremptory Order: may issue without OSC. “Obvious relief where 1) unusual urgency or 2) relief so obvious. (See Alexander v. Super.Ct (1993) 5 Cal.4th 1218.)Need to give notice of Peremptory order = Palma notice (36 Cal.3d 171,180.)

2B Denied, 10 days to file for Petition for Review or remand to Ct of Appeal

2C Response to writ: do nothing until court calls (4th DCA Rule 11(A)(3), then normally 10 days to respond : make informal=formal

2D Cost of writ must be balanced against narrow likelihood of success

DIFFERENCES IN POST ORDER OUTCOME

Opinion vs NO OSC, then one liner denial: no res judicata effect from one liner (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171.)
Any decision is final on issuance only 10 days to seek Petition for Review (Rule 8.500 (e)(1) vs. Appeal 40 days from opinion.

SECOND WARNING: NEED A REPORTER’S TRANSCRIPT

YOU MUST HAVE A REPORTER PRESENT IF YOU ARE PLANNING ON WINNING ANY APPELLATE LITIGATION