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Do you know the way to the Court of Appeal – what’s the difference between an appeal and a writ petition?
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An appeal involves review by an appellate court as a matter of right.  In contrast, a writ petition addresses the appellate court’s discretion:  The court may hear the matter, but it is not required to do so.  If an appeal is not available, a writ petition is the only remedy.  Conversely, if an appeal is available, writ relief is ordinarily not available, because the party seeking review has an adequate remedy at law via the normal appellate process.  (See generally 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, §§ 56 et seq. & §§ 126 et seq.)

Appellate jurisdiction is entirely statutory; if there isn’t a statute making a particular order appealable, a writ petition is the only avenue for review.  “Because an appealable judgment or order is essential to appellate jurisdiction, the parties cannot by any form of consent make a nonappealable order appealable.”  (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 14, emphasis omitted.)  The principal authority is Code of Civil Procedure section 904.1.

Some classes of orders are appealable only under certain circumstances; for instance, an order granting a motion to quash service of summons is appealable, but not an order denying such a motion.  Some statutory schemes contain their own appeal provisions.  (E.g., Code Civ. Proc., § 1294 [appealability of certain orders concerning arbitration].)

Writ petitions are authorized by statute in some situations.  (E.g., Code Civ. Proc., §§ 170.3(d) [judicial disqualification], 405.39 [lis pendens orders], 437c(l) [summary judgment denial], 877.6(e) [good-faith determinations], 904.1(b) [sanctions awards under $5,000].)  But any non-appealable order can be the subject of a writ petition, such as an order overruling demurrers, a discovery order, etc.
 Decisional law suggests appealability in some limited situations that are not listed in Code of Civil Procedure section 904.1, typically on the basis that as a practical matter the orders are sufficiently final and dispositive as to the parties affected.  For instance:
 
  • Lawyer disqualification (Reich v. Club Universe (1981) 125 Cal.App.3d 965, 969, 178 Cal.Rptr. 473)  
  • Class certification (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 16)  
  • Good faith determinations in limited circumstances (see Rohr Industries, Inc. v. First State Ins. Co. (1997) 59 Cal.App.4th 1480, 1484-1487, 69 Cal.Rptr.2d 872 [order affecting party’s insurer])


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