Appeals & Writs
The O’Brien Watters & Davis law firm’s appellate attorneys have handled appeals or writs in various areas of the law including the areas of anti-SLAPP litigation, family law, elder financial abuse, attorney misconduct, and the Uniform Fraudulent Conveyances Act, etc. For the specific names of and citations to some of the cases handled by the firm’s attorneys, please see the individual attorney bios.
O’Brien Watters & Davis’ Appellate Practice Group is headed up by Sonoma County Certified Appellate Specialist Joe Baxter and Certified Appellate Specialist Noreen M. Evans, a retired California State Senator. The Appellate Group includes Deirdre Taber Kingsbury, Sara Baxter Kaplan and Michael G. Watters. Ms. Evans, Ms. Kingsbury and Ms. Baxter Kaplan are experienced trial attorneys as well. As a State legislator for 10 years, former member of the Judicial Council, former chair of the Senate Committee on Judiciary, and author of numerous pieces of significant legislation, Noreen Evans is expert in establishing legislative intent for interpretation and application of California statutory law. The firm has the depth and breadth of appellate law experience to handle pretty much any kind of civil appeal.
Should a litigant in California in a state (or federal) court lose his or her case at trial, the litigant is guaranteed at least one level of (further) review by an appellate panel. In a case of limited jurisdiction, the review is by an appellate panel of three Superior Court judges (CCP §964.2; California Rules of Court, Rules 8.800 and following); in a case of unlimited jurisdiction ($25,000 or over), then the review is by the appropriate District Court of Appeal. Reviews by the California Supreme Court are, generally speaking, solely in the discretion of the Supreme Court and are rare. Similarly in the federal system—Federal District Court cases are reviewed by The Circuit Court of Appeals (in California and the other Western States it is the 9th Circuit) and any review by the U.S. Supreme Court by writ of certiorari (“certify the record”) is discretionary.
The basic authority for an appeal in California courts is set forth in the California Constitution art. VI, §11. Appeals are creatures of statute; in other words, a person can only appeal if an appeal is authorized by statute. Powers v. City of Richmond (1995) 10 Cal.4th 85, 89-90. See California Code of Civil Procedure §904.1 for the list of appealable judgments and orders that are appealable. Note that this code section also makes reference to orders in family law cases as well as probate cases that are appealable. See for example, Probate Code §1300, and following. There are also various other statutes that confer the right to appeal. See for example, CCP §1294 allowing certain appeals in contractual arbitration. CCP §906 covers the powers of the reviewing court.
Generally speaking, only parties to an action may appeal from a final judgment or the orders specified in California Code of Civil Procedure §904.1. County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737. Such appealable orders include orders for attorneys fees, injunctive relief, disqualification of an attorney and the like.
If a right to appeal is authorized and the aggrieved party does not timely appeal on those grounds, then that party cannot later appeal on those grounds. In other words, the right appeal is lost. The right to appeal can also be waived.
Only final judgments are appealable; interlocutory orders are not appealable. Many court orders are of this kind—this is just how the system is set up. Appeals are designed to review final judgments. There are some notable exceptions, such as contained in the family law where a particular issue that is decided in a bifurcated trial may have a significant impact on the trial of the rest of the case. Interlocutory appeals may be allowed in those situations. See Family Code §2025 and California Rules of Court, Rule 5.392. Of course, courts make intermediate or interlocutory orders all the time such as orders made as a result of pretrial discovery disputes including a motion to compel production. Such disputes are not appealable because there is no statutory authority granting that right. However, such court orders may need to be reviewed because of the importance of the issue involved. Thus, where there is no plain, speedy or adequate (appellate) remedy available to correct mistakes, a party can file a petition for a writ also known as a writ petition. California Code of Civil Procedure §1086. See CCP §17(b)(6), see also CCP §§1068-1069, 1086 and 1103.
Among the writs available is a petition for writ of mandamus (mandate), the purpose of which is to direct someone, such as a lower court, to do something such as enter an order or set aside an order. CCP §§1084(defined) and 1085. Petitions for writ of prohibition seek orders to direct someone not to do something. See CCP §§1102(defined) and 1103. There are various rules and procedures for deciding petitions for writ.
Unlike appeals, which the Court of Appeal must hear and determine, the decision whether to grant or deny a writ is completely discretionary. If a review is granted, the court may hear and determine the writ on its merits. However, few writs are ever granted. In actuality, they are very rare and most are summarily denied. A summary denial is not a denial on the merits and is therefore not controlling on the parties or the future actions of the trial court in the case. However, if the writ is decided on the merits, its decision could be controlling on what the trial court can do. This is known as “law of the case.”
Even if the reviewing court refuses to grant a petition for a writ, once there is a final judgment on the merits, the appellate court may then also review the issues raised in a writ petition as part of the overall appeal. CCP §906.
In addition, our legislature has specified that the writ process is to be used to review certain kinds of pre-trial court orders. For example, the denial of a motion for summary adjudication or a motion for summary judgment is to be reviewed by writ. See CCP §437c(m)(1)
Also, the writ process is utilized when a court refuses to sustain a demurrer (a legal challenge of the pleadings) without leave to amend, in pretrial discovery disputes involving such important things as right of privacy or important privileges such as the attorney-client privilege. If there were not an opportunity to immediately seek review by a writ petition, in such matters, than “the cat would be out of the bag” and the damage would be done before any opportunity to appeal.
Writs are also available in the appellate division of the local Superior Court. California Rules of Court, Rule 8.930 and following.
Writs can be either in the alternative or peremptory. See CCP §1087 and CCP§104.
The timely filing and service of a Notice of Appeal stays the proceedings in the trial court including enforcement of the judgment. CCP §916. But, see for example, Probate Code §1310. Generally, money judgments are not stayed unless a bond is posted. CCP §917.1 and following.
Santa Rosa appellate lawyers in the O’Brien, Watters & Davis Law Firm have successfully handled numerous appeals since the mid-1970s, including cases before the California Supreme Court. The firm has also handled various writ petitions and has done so with some success. See Asman v. Revlon (trial court ordered to sustain our demurrer without leave to amend), Flatt v. Superior Court (our motion for summary judgment granted by the California Supreme Court).
Our Northern California appellate lawyers handle appeals throughout the state because the work that is done is primarily research and writing since appellate courts don’t retry the case or re-determine credibility of witnesses. Appeals are based on such things as abuse of discretion by a trial court or whether or not there is substantial evidence to support the judgment below, erroneous rulings by the court on the law and so on. Our appellate lawyers are admitted to practice before all of the courts of the State of California, federal courts in the Northern, Eastern and Central Districts of California, the Ninth Circuit, and the United States Supreme Court.