Writ Practice

writWrit practice is a particularly tricky—and essential—component of California’s appellate review process. In California state courts, there are many instances in which the only path for an effective appellate remedy is by filing an immediate writ petition from an adverse interim trial court ruling. Such cases typically fall into one of the following two categories:

First, some interim trial court rulings may be challenged only by way of an immediate writ petition. In such cases, if the aggrieved party does not file a timely writ petition with the California court of appeal, then the party might be foreclosed from ever obtaining appellate review of the adverse ruling. For example, an aggrieved party’s single avenue to appellate review of an order on a lis pendens is via an immediate writ petition. An appellate court cannot review such an order in an appeal from the final judgment.

Second, because of California’s rules precluding so-called “piecemeal” appeals, an aggrieved party generally has just two pathways to appellate review of an interim trial court order: The party may wait until after the trial court enters a final judgment and then challenge the adverse ruling in the resulting appeal. But that approach sometimes isn’t practical. The case must first conclude in the trial court, and then the appeal must wind through the appellate processall of which might take years. The party’s other option is to file an immediate writ petition explaining why the appellate court should review the trial court’s interim order before the trial court enters final judgment. For example, there is no way to remedy an erroneous trial court order compelling disclosure of privileged information years after the information is produced in discovery.

One of the most challenging parts of appellate and writ practice is analyzing the appellate court’s jurisdiction. Specifically, it is imperative to parse out whether the interim ruling is immediately appealable or whether it must be pursued by a writ petition. The distinction is critical: The court of appeal must rule on an appeal. Not so with writ petitions; the court of appeal may deny a writ petition for any reason or for no reason at all.

Lara’s appellate expertise comes into play at each stage of this jurisdictional analysis.

It also important to recognize that California and federal jurisdictional rules are very different; Lara has deep experience in both forums.

And jurisdictional analysis is just the beginning. If a writ petition is warranted, the petition must be filed within a couple of weeks (or days) of the trial court ruling. Lara has extensive, successful writ experience allowing her to quickly and efficiently prepare a writ petition. Her experience includes:

  • A long-lived dispute ultimately spawned a malicious prosecution action against a Malibu homeowners’ association. The only issue was whether the plaintiff filed the malicious prosecution complaint against Lara’s client, the homeowners’ association, within the statute of limitations. The association filed a demurrer, arguing that the action was untimely. The trial court overruled the association’s demurrer. If the trial court’s order stood, the association would needlessly incur costly attorney’s fees defending against an untimely action. Lara filed a successful writ petition, persuading the appellate court to order the trial court to sustain the demurrer on timeliness grounds and dismiss the lawsuit.
  • Lara represented the seller in a complex real-estate deal involving the development of a subdivision on 25 acres of land near the Central California coast. Part of the deal required the seller to negotiate with the municipality to obtain the necessary approvals for the subdivision development. When the municipality ultimately rejected the permit applications, the developer sued the seller for breaching the contract and also placed a lis pendens on the seller’s property. Because of the economics of the deal, the lis pendens prevented Lara’s client from refinancing the loan, which translated into additional $250,000 monthly penalty payments. After the trial court refused to expunge the lis pendens, Lara prepared the writ petition, which the court of appeal granted, freeing up her client to refinance the loan.

Lara can be reached at (310) 975-8513 or at LKrieger@LaraKriegerLaw.com.

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