Writs

Writs

CEB has my article, “Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, Fourth District Holds”

Last updated on August 30, 2024 by Tim Kowal

CEB DailyNews has published my article, “Courts Cannot Limit Code of Civil Procedure Section 170.6 Challenges By Local Rule, Fourth District Holds.” The article is about the published opinion in *Lorch v. Superior Court* (D4d1 May 16, 2024 No. D083609), about peremptory challenges to a trial judge. In a “master calendar” court, rather than the...Read More >>

The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned

Last updated on June 6, 2024 by Tim Kowal

The first thing you do after filing a case is check the assigned judge. Once the judge has been assigned “for all purposes,” you have 15 days to file your peremptory challenge to disqualify that judge. There are a few wrinkles to that “all purpose assignment” deadline, however. The court addressed them in *Taylor v....Read More >>

Courts cannot limit 170.6 challenges by local rule

Last updated on May 23, 2024 by Tim Kowal

One reason trial prep is so stressful is you don’t know if you might get a different judge—or if you’ll have the right to make a CCP 170.6 peremptory challenge to the new judge. When you get an all-purpose assignment, you have 10 days to make a challenge. But if you’re in a “master calendar”...Read More >>

Denying an untimely but meritorious motion for reconsideration was reversible error

Last updated on February 19, 2024 by Tim Kowal

After the trial court compelled arbitration in a car-defect dispute, the plaintiff moved for reconsideration. But the trial court’s ruling was correct, and the plaintiff’s motion was untimely. So it was no surprise when the court denied the motion. That made it all the more surprising when the Court of Appeal in Contreras v. Superior...Read More >>

State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty

Last updated on January 2, 2024 by Tim Kowal

Just a couple months ago, when the Court of Appeal issued a rare writ on a discovery issue, I noted that this was unusual because appellate courts generally loathe discovery disputes. But here comes the court with another discovery writ. There are two things in common between that earlier case and the more recent case...Read More >>

In fight over short-term rentals, City could not challenge contempt fees either as an appeal or writ

Last updated on December 20, 2023 by Tim Kowal

Like many cities with neighborhoods unhappy with short-term rentals, Rancho Mirage issued a ban on the practice. In this suit by a group of short-term rental owners, Vacation Rental Owners & Neighbors of Rancho Mirage v. City of Rancho Mirage (D4d2 Dec. 15, 2023 No. E078784) [nonpub. opn.], the trial court issued a preliminary injunction...Read More >>

You can get documents in a Public Records Act, enforced via civil action, but you can’t use a discovery order

Last updated on October 17, 2023 by Tim Kowal

After the County of San Benito dragged its feet in responding to a natural resources group’s Public Records Act request about the controversial Strada Verde Project, the group sued for a writ of mandate to enforce their right to transparency. They did have that right, but the court in San Benito v. Superior Court (D6...Read More >>

City law held unconstitutional? Just amend! “See how easy it is to be a city attorney?”

Last updated on May 11, 2023 by Tim Kowal

Sometimes you CAN beat city hall. But the city, even after a court loss, can still win. Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city. The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will...Read More >>

HOA May Go Forward with Representative Action for Construction Defects

Last updated on March 8, 2023 by Tim Kowal

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...Read More >>

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

Last updated on February 24, 2023 by Tim Kowal

“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...Read More >>

Writ Petitions Are Won or Lost in the First Paragraph

Last updated on November 11, 2022 by Tim Kowal

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,...Read More >>

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

Last updated on October 11, 2022 by Tim Kowal

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...Read More >>

Why Family Law Writ Petitions Are So Hard

Last updated on May 12, 2022 by Tim Kowal

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...Read More >>

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

Last updated on December 14, 2021 by Tim Kowal

Appellate attorney and author 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...Read More >>

Increase Your Chances of Success on a Writ

Last updated on December 9, 2021 by Tim Kowal

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...Read More >>

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

Last updated on September 2, 2021 by Tim Kowal

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...Read More >>

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

Last updated on August 27, 2021 by Tim Kowal

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and Tim Kowal 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...Read More >>

A Writ Petition Summarily Denied May Be Raised Again Later

Last updated on August 4, 2021 by Tim Kowal

Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the...Read More >>

Is a Summary Denial of a Writ Petition Binding Precedent? Spitting from Authority, Second District Says Yes in Reversing Judgment

Last updated on March 10, 2021 by Tim Kowal

Here is an unsettling thought: You are successfully litigating a disputed legal point. You obtain a preliminary injunction in your favor. You then proceed to trial. But before the court issues its judgment in your favor, another county superior court, faced with the same legal question, issues a preliminary injunction deciding the question against you....Read More >>

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

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"A judge is a law student who grades his own papers." — H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia