Must One Contest a Tentative Ruling?

Josephine MasonPosted by on Feb 16, 2018 in Appellate Practice

The California Rules of Court allow superior courts to use  a tentative ruling procedure in law and motion matters. (See CRC 3.1308.) Many attorneys assume that they must contest an adverse tentative ruling to preserve their objections for appeal. While there may be good reasons to contest, it is not necessarily mandatory.

It is not “invited error” to submit on a tentative ruling. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401 (“Mundy”); see Jon B. Eisenberg et al., California Practice Guide: Civil Appeals and Writs ¶ 8:248.12 (“Rutter”).) The doctrine of invited error is based on a principle of estoppel; it “prevents a party from misleading the trial court and then profiting therefrom in the appellate court.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) But so long as a litigant asserts an issue in the trial court and does not actively invite error, the issue is preserved for appeal. (Mundy, supra, 203 Cal.App.4th at pp. 1405-1406; Rutter, supra, ¶ 8:248.12.)

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Peremptory Challenge Denied? Take a Writ

Josephine MasonPosted by on Nov 7, 2017 in Appellate Practice

In the Roman Republic, the right to appeal (provocatio, as in “provocation”) from a magistrate’s summary use of power was regarded as one of the most important safeguards of liberty. The democratic force of the right to appeal survives today. (See, e.g., Griffin v. Illinois (1956) 351 U.S. 12, 18; Cassandra Burke Robertson, The Right to Appeal (2013), 91 N.C. L. Rev. 1219.) Indeed, it is often said that everything may be reviewed on appeal, but as in almost every aspect of law, there is an exception: In California, a trial judge’s refusal to be recused by way of a peremptory challenge is reviewable only by writ. (Code Civ. Proc., § 170.6.) Here are some practical tips for optimizing the chances of obtaining review.

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