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Appellate Law

: The California Blog of Appeal

Can your trial judge give you a boost toward getting appellate review of a non-appealable order?

By Greg May

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In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Services Group, Inc. v. Superior Court, case no. B256266 (2d Dist., Jan. 22, 2015) is a reminder that this tool for obtaining early appellate review is at the disposal of parties aggrieved by a non-appealable order and reluctant to petition for writ relief because of the generally long odds against having a writ petition heard on the merits.

Section 166.1 provides:

Upon the written request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal.

Audio Visual Services Group cites Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1330, fn. 6: “The intent is evidently to encourage the appellate court to review the issue on the merits if the losing party files a petition for extraordinary relief.”

Why do I qualify my answer to the the question posed in the title of this post? It is because I wonder how often such certifications actually convince the appellate court to review a petition on the merits when it would not have done so otherwise. After all, every writ petition tries to convince the court that the particular circumstances are “special” enough to warrant appellate review, frequently citing the same factors stated in section 166.1 (particularly when it comes to orders overruling demurrers or denying summary judgment or summary adjudication).

So, does the concurrence of the trial judge offer any real assistance? It is a question I will pose in future discussions with appellate justices. But until then, my approach is that it sure can’t hurt.

If you think your case has been helped or hurt by a section 166.1 certification, let me know in a comment to this post.

Update: AAAArrrggghhh! I cannot get comments opened up in WordPress at the moment. No matter how many times I change the setting, comments remain closed. But I would still like to hear from you if you have experience with section 166.1 influencing your case. Email me at gregATgregmaylaw.com. I will update the post, as appropriate, to reflect your experience.

Full post as published by The California Blog of Appeal on January 23, 2015 (boomark / email).