Appellate Insights

Nov 12, 2019 Alana H. Rotter
Tough Questions

Interlocutory rulings generally are not appealable—the Court of Appeal will review them only on appeal from the final judgment.  Many litigators know they can seek immediate discretionary review via a writ petition.  But fewer know of a procedural tool that can improve the chances of getting writ review:

  • Code of Civil Procedure section 166.1 permits the trial court to indicate 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.”
  • Although a section 166.1 finding does not make a ruling appealable—review is still by a writ petition—it signals to the Court of Appeal that the writ petition is worth serious consideration.
  • Even without a section 166.1 finding, trial court comments to the effect of, “This is a close call” or “I’d appreciate appellate guidance on this” may help tip the scales in favor of writ review.  If the court says something along these lines, incorporate it into your petition.

►  The practical message:  If you are considering a writ petition on a significant issue where the law is uncertain, consider asking the trial court to make a Code of Civil Procedure section 166.1 finding.  When trying to persuade the Court of Appeal to grant discretionary review, every little bit helps!