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Code of Civil Procedure section 166.1, which went into effect January 1, 2003, 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.” As this article will explain, this statute in effect enables a trial judge to recommend writ review of one of his or her own orders.
Although section 166.1 does not provide a right to appellate review, it may increase the chances of obtaining discretionary writ review. Litigants seeking to avail themselves of the benefit of the section must do two things: (1) persuade the trial judge to include in the disputed order the findings set forth in section 166.1 and (2) persuade the appellate court to grant writ review of the order.
Step 1: Trial court “certification”
As yet no reported case has explicated the application of section 166.1. An electronic search discloses four cases citing the section. None of these, however, construes the section’s language or provides any useful insight into its operation.
The operative language of section 166.1, however, is taken virtually verbatim from title 28 U.S.C. section 1292, subdivision (b). It is therefore logical to draw upon federal case law construing section 1292(b) in attempting to persuade a state trial judge that a particular ruling fits the requirements of section 166.1.
Section 1292(b) permits a district judge to “certify” for appeal an otherwise nonappealable interlocutory order by making the same three findings required under section 166.1: (1) that the order involves a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) that an immediate appeal from the order may materially advance the ultimate termination of the litigation. (28 U.S.C. § 1292, subd. (b); see In re Cement Antitrust Litigation (MDL No. 296) (9th Cir. 1982) 673 F.2d 1020, 1026.) Although section 1292(b), unlike section 166.1, provides for review by appeal rather than extraordinary writ, the distinction is merely one of terminology. Under section 1292(b), an appellate court has discretion to refuse an appeal from an interlocutory order, even if it is certified by the trial court. In other words, review under both procedures is ultimately discretionary.
Case law applying section 1292(b) has yielded few firm guidelines concerning the statute’s three certification requirements. Of the three, the controlling-question-of-law requirement appears to have received the most attention and is probably the most important. (See Katz v. Carte Blanche Corporation (3d Cir. 1973) 496 F.2d 747, 754-755 [“The ‘controlling question of law’ requirement is the source of whatever difficulty may arise as to the propriety of an interlocutory appeal”].) It has been held that this requirement encompasses “at the very least every order, which if erroneous would be reversible error on final appeal.” (Id. at p. 755; see In re Cement, supra, 673 F.2d at p. 1026.) What it may encompass beyond this is unclear. The Ninth Circuit has held that all that must be shown in order for a question to be “controlling” is that resolution of the issue on appeal could “materially affect” the outcome of litigation in the district court (In re Cement, supra, 673 F.2d at p. 1026) – not a particularly instructive legal standard.
But the absence of clear guidelines concerning the three certification requirements may be of little significance because many federal courts (including the Ninth Circuit) focus more on whether a case comes within the policies and intent underlying section 1292(b) than on a mechanical application of its requirements. In Katz, supra, the court said, “The key consideration is . . . whether [the order] truly implicates the policies favoring interlocutory appeal. The determination of what orders are properly reviewable under § 1292(b) must be made by a practical application of those policies . . . .” (496 F.2d at p. 756.) Those policies include “the avoidance of harm to a party pendente lite from a possibly erroneous interlocutory order and the avoidance of possibly wasted trial time and litigation expense.” (Id.) Similarly, the Ninth Circuit has said that section 1292(b) “was not intended merely to provide review of difficult rulings in hard cases,” but was instead intended to be used only in “extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation.” (United States Rubber Co. v. Wright (9th Cir. 1966) 359 F.2d 784, 785; see also In re Cement, supra, 673 F.2d at p. 1026.)
Thus, in urging the trial court to invoke section 166.1 counsel should point out, for example, how an early appellate resolution of the issue might enhance settlement possibilities, narrow the scope of the litigation, shorten the potential length of trial or possibly eliminate the need for trial altogether. (See Katz, supra, 496 F.2d at p. 755.)
Step 2: Obtain writ review
What can a litigant do with the section 166.1 “certification” language? In other words, how might section 166.1 impact the grant or denial of writ review? Such interim review is of course discretionary, and is granted rarely and only under extraordinary circumstances. In Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271-1275 [258 Cal.Rptr. 66], the Court of Appeal summarized the various criteria that can justify the grant of writ relief, culled from Supreme Court precedent:
^(1) the issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue; (2) the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action; (3) conflicting trial court interpretations of the law require a resolution of the conflict; (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case; (5) the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief; and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal. The extent to which these criteria apply depends on the facts and circumstances of the case.^
(Id. at pp. 1273-1274.)
Section 166.1 is silent as to how it might affect an appellate court’s decision to grant writ review of an interlocutory order which satisfies the section’s three conditions. Does “certification” alone justify writ review, or must the case also satisfy one or more of the traditional Omaha Indemnity criteria?
There is no clear answer to this question. Counsel would therefore be well-advised to argue it “both ways” wherever possible. Thus counsel should argue on the one hand that section 166.1 creates a separate and sufficient ground for writ relief in and of itself – that the statute reflects a legislative determination that where a trial court certifies an interlocutory order, such certification by definition satisfies the threshold requirements for writ review.
However, counsel should also argue on the other hand the trial court’s section 166.1 certification in a particular case also necessarily satisfies one or more traditional grounds for extraordinary review set forth in Omaha Indemnity. For example, in some cases a ruling that involves a “controlling question of law” under section 166.1 necessarily “substantially prejudices petitioner’s case” under Omaha Indemnity. Similarly, an issue “as to which there are substantial grounds for difference of opinion” under section 166.1 may in some cases also be one of “widespread interest” or one which “presents a significant and novel constitutional issue” or yields “conflicting trial court interpretations of the law requir[ing] a resolution of the conflict.” (Omaha Indemnity, supra, 209 Cal.App.3d at p. 1273, criteria 1 & 3.) And a case in which “appellate resolution” of the issue might “materially advance the conclusion of the litigation” (Code Civ. Proc., § 166.1) may also be one in which direct appeal is an inadequate remedy and the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal. (Omaha Indemnity, supra, 209 Cal.App.3d at p. 1274, criteria 5 & 6.)
The Omaha Indemnity factors may of course be invoked without reference to section 166.1. What the new statute adds to the analysis, however, is the trial court’s imprimatur, which may carry significant weight with the Court of Appeal. In other words, counsel can argue that the trial court has made findings, which, by definition, satisfy the Omaha Indemnity threshold requirements under the particular circumstances of the case.
Counsel should also, however, be alert to potential conflicts between the section 166.1 criteria and the Omaha Indemnity criteria, which may make it difficult to argue in the alternative. For example, in some cases it may be entirely inconsistent to argue alternatively that an order is either “clearly erroneous” (Omaha Indemnity, supra, 209 Cal.App.3d at pp. 1273-1274, criterion 4) or one “as to which there are substantial grounds for difference of opinion” (Code Civ. Proc., § 166.1).
Moreover, alternative arguments may be tactically undesirable even when they are not inconsistent. In granting writ review, appellate courts tend to favor issues that are simple, clean and straightforward. Alternative arguments may add unnecessary layers of complication and verbiage. Counsel should analyze the potential tactical advantages and disadvantages early, so that a decision can be made whether to seek inclusion of section 166.1 language in the interlocutory order.
Conclusion
Significant questions remain concerning the circumstances under which section 166.1 will apply and how it may affect the grant or denial of writ review. But the new statute clearly does add the trial court’s imprimatur to a litigant’s petition for writ relief. And that alone may make it a powerful new tool for obtaining such relief.
Summary:
Code of Civil Procedure section 166.1, which became effective last year, is a potentially powerful new tool for obtaining extraordinary writ review of interlocutory orders.
Biography:
Gerald Clausen is certified as an appellate specialist by the State Bar Board of Legal Specialization. He handles appeals, writs, and complex and dispositive motions in state and federal courts, with an emphasis in the substantive area of tort law. He has offices in San Francisco and Los Angeles.
Gregory R. Ellis leads the appellate practice at Geragos & Geragos in Los Angeles and is certified as a specialist in appellate law by the State Bar Board of Legal Specialization. He handles appeals and writs in criminal, civil and family law matters in all state and federal courts.
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