Appeals and Writs

Publication year2021
AuthorPaul Killion


Paul Killion

Dean Bochner

Glenn Danas

Katy Graham

Jonathan Grossman

Josh Patashnik

Matthew Scherb

Jocelyn Sperling

Gary Watt

David Williams

Greg Wolff


After the California Supreme Court grants review, a published opinion of the Court of Appeal in that case "has no binding or precedential effect, and may be cited for potentially persuasive value only."1 This rule created an unintended consequence: when two published Court of Appeal opinions expressly disagree and the Supreme Court grants review in one to resolve the conflict, the grant of review deprived the published opinion of precedential value, leaving the other published decision as the sole binding precedent. This development temporarily, but unintentionally, resolved the conflict in authority while review was pending.

The California Supreme Court addressed this problem by issuing a standing order explaining that "when the Supreme Court grants review of a published Court of Appeal opinion, the opinion may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow superior courts to exercise discretion under Auto Equity . . . to choose between sides of any conflict."2 This order, which is now incorporated into a new comment that follows the rule, gives a superior court the authority "to follow a published review-granted Court of Appeal opinion, even if that opinion conflicts with a published, precedential Court of Appeal opinion."3 As a result, the conflict in authority now lives on until the Supreme Court resolves it.


In a once rare move, the Supreme Court granted review on its own motion for the second year in a row.

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In People v. Martinez,4 the Court of Appeal addressed an administrative regulation issued by the Insurance Commissioner prohibiting a bail licensee from entering into an agreement with a jail inmate "or with any other persons" to inform the licensee of an arrest or criminal complaint.5 In a published decision, the Court of Appeal held that this regulation was invalid on its face because it "is content-based and regulates protected speech [and] fails to survive even an intermediate level of judicial scrutiny."6

The People did not seek review, but the Insurance Commissioner sought depublication. The Supreme Court denied the request for depublication but granted review on its own motion.7 The case is fully briefed and awaiting oral argument.

The previous year, the Supreme Court granted review on its own motion in another criminal case after the Court of Appeal ruled that "serial denials of parole" had rendered defendant's sentence of life in prison "constitutionally excessive."8 Again, the People did not seek review, but the California District Attorneys Association sought depublication. And again, the Supreme Court denied the request for depublication but granted review on its own motion, ultimately ruling that a determination that a defendant's prison term constituted cruel or unusual punishment does not guarantee automatic termination of the statutory parole period.9

These cases demonstrate the Supreme Court's willingness to reach out and decide an interesting issue, even when no party has sought review. They further illustrate the Court's reluctance to depublish an opinion that is not clearly wrong, in order to shape the law. There is no reason this scenario could not play out in a civil case. Appellate practitioners should take note.


The deadline to file a notice of appeal is jurisdictional, meaning the courts lack the power to extend it.10 This jurisdictional barrier is almost, but not absolutely, impenetrable.

Under the constructive filing doctrine, incarcerated litigants can overcome the bar when they diligently try to file a notice of appeal, but the notice is filed late through the fault of a guard, counsel, or someone else upon whom appellant necessarily relied.11 To overcome the jurisdictional problem, the diligent but futile efforts of the incarcerated person are treated as tantamount to actual filing, bringing the appeal within the court's jurisdiction.12

In In re A. R.,13 the Court has now allowed parents to overcome the bar when they diligently instruct court-appointed counsel to appeal from orders terminating parental rights, but counsel fails to timely file a notice of appeal. A unanimous Supreme Court fashioned reinstatement of the appeal as a "logical remedy" for violation of the parent's statutory right to competent counsel in dependency proceedings.14

Applying for reinstatement, parents will no longer need to use habeas corpus procedures. They may instead submit a simple "application" directly to the Court of Appeal, under procedures to be determined in that court's "substantial discretion," or by the Legislature, or by the Judicial Council.15 Their untimely appeal will be reinstated on a showing that they would have filed a timely notice of appeal absent attorney error and that they diligently sought relief from default.16 They need not show probability of success on the merits.17 How this procedure avoids the jurisdictional problem is not entirely clear, but it demonstrates a willingness by the court to penetrate technical barriers to justice, at least when important rights are concerned. This decision should be considered when representing individuals who confront seemingly impenetrable barriers to access to justice.


In general, a party may appeal only from a final judgment or an order or judgment made appealable

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by statute There is a narrow, common-law exception, however, that allows a party to appeal from a collateral order, which finally resolves a matter that is distinct and severable from the subject matter of the litigation. On three separate occasions in 2021, appellate courts concluded that orders were not appealable under the collateral order doctrine.

In Dr. V. Productions, Inc. v. Rey, the Court of Appeal followed the "modern formulation" of the doctrine and "the 'majority view'" that an order must direct the payment of money or require the performance of an act to qualify as a collateral order.18 Applying this requirement, the court held that an order denying attorney fees on a dismissed claim was not appealable when other claims were still pending.19 The court explained that even under the minority view, which looks to an order's relationship to the merits of the case, the order was not collateral. Unlike an order disqualifying counsel, which is unrelated to a suit's merits, the fee order here addressed a claim that shared common facts with the claims that were still pending.20 Therefore, it was not collateral.

In Reddish v. Westamerica Bank, the Court of Appeal determined that the collateral order doctrine did not apply for a different reason—the supposedly collateral matter was not final.21 Defendant had been ordered to share deposition costs, and appealed from the cost-sharing order.22 The matter was not final because defendant could still ultimately prevail in the action and recover those costs.23 The court declined to follow other cases that had permitted appeals of interim costs orders because those cases did "not consider whether a final cost allocation could make the interim order moot"24

Finally, in Curtis v. Superior Court, the Court of Appeal held that the collateral order doctrine did not apply to a discovery order compelling a nonparty to identify a Doe defendant in the action.25 While the court recognized that the doctrine can apply to discovery orders issued in California that compel a party to produce information in actions pending in other jurisdictions, the order at issue was not appealable because the identity of the Doe defendant was directly related to the pending action.26 Again, it was not a collateral matter.

These cases also illustrate a further point In both Dr. V. Productions and Reddish, the courts, after determining that the orders were not appealable, declined the invitation to treat the appeals as writ petitions, concluding there was an adequate remedy on appeal from the final judgment27 or there were no extraordinary circumstances warranting such treatment.28 Curtis, by contrast, treated the appeal as a writ petition.29 Thus, these cases are a good reminder that if counsel asks that an appeal be treated as a writ petition in the event the order is deemed not appealable, counsel should explain why writ relief would be appropriate, such as a need for immediate relief or an absence of an adequate remedy on appeal from the final judgment.


A claimant sought damages from the California Victim Compensation Board for wrongful incarceration.30 The board denied relief, and the claimant petitioned for a writ of administrative mandate.31 The superior court: (1) remanded the matter for a new hearing because the board failed to support its decision with sufficient facts; (2) rejected the claimant's argument that he was entitled to relief without a hearing; and (3) concluded that some federal court findings were not binding on the board.32 The claimant appealed the rulings adverse to him and also contended that certain stipulations and federal court findings required a finding of factual innocence, which would bear on his entitlement to compensation.33

"An order granting or denying a petition for writ of mandate that disposes of all of the claims between the parties is an immediately appealable final judgment."34 But in light of the remand order, the Court of Appeal considered appealability sua sponte.35 Citing Dhillon v. John Muir Health,36...

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