What Every Lawyer Should Know about Writs
by Laura Boudreau
(County Bar Update, November 2005, Vol. 25, No. 10)

 

What Every Lawyer Should Know about Writs

 

By Laura Boudreau, a lawyer with the civil appellate law firm of Greines, Martin, Stein & Richland LLP. The views expressed are her own.

 

Originally a writ was a command from the king, written in Latin and sealed with the Great Seal. Writ practice still retains something of its formal, antiquated flavor with special pleading and procedural requirements. And with something that can seem like the king's prerogative, courts of appeal deny most writ petitions without a hint of explanation.

 

Understanding writ procedures and your odds of obtaining relief can help you decide the most important question: Whether it is worth your time and your client's money to file a writ petition at all. It may well be worth it to your client to consult an experienced appellate practitioner to help answer that question.

 

1. What is a writ petition?
A writ petition is, in effect, a request by the petitioner (the party aggrieved by an order in the trial court) to jump to the front of the line in the court of appeal instead of waiting for an appeal after final judgment. Omaha Indemnity Co. v. Superior Court, (1989) 209 Cal.App.3d 1266, 1273. Most writs issued by the court either direct the trial court to do something (writ of mandate), Code Civ. Proc., Sec.1085; or prohibit it from doing something (writ of prohibition), Code Civ. Proc., Sec.1102.

 

2. What is so extraordinary about writs?
Writs are issued when the petitioner has no other "plain, speedy, and adequate remedy, in the ordinary course of law." Code Civ. Proc., Sec. 1086 (mandate); see also Code Civ. Proc., Sec.1103 (prohibition). They are "extraordinary" forms of relief, 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, Sec.1, 782; and appellate courts take that limitation seriously. It is no secret that an appellate court would rather address a petitioner's issue on appeal after the record has been fully developed, and it has more time for deliberation. Omaha Indemnity Co. v. Superior Court, supra, 209 Cal.App.3d at 1273. Plus, from the court of appeal's perspective, there may be no real urgency: The error might be cured before trial or have little or no effect on the trial's outcome. Id.

 

Last year, petitioners filed more than 8,000 writ petitions statewide. Nearly one-third were filed in Los Angeles, where each division received around 31 petitions a month (criminal, civil, and juvenile). Ninety percent were denied. Getting extraordinary writ relief truly is an extraordinary achievement.

 

3. Why should the court issue a writ in your case?
To maximize the odds of getting writ relief, a petitioner needs to get to the point fast. And the point must not be just that the trial court erred--every petitioner says that--but that the issue falls squarely within one of the two categories:

 

(a) Public or legal significance: The issue is of "widespread interest," "conflicting trial court interpretations need resolution," or "a novel or constitutional question is presented." Science Applications Internat. Corp. v. Superior Court, (1995) 39 Cal.App.4th 1095, 1100.

 

(b) Prejudice: The petitioner will be harmed because the trial court's determination "imposes unusually harsh and unfair results for which ordinary appellate review is inadequate." Id. at 1100-01. For example, the court of appeal might issue a writ when the trial court has ordered the disclosure of privileged information--harm that cannot be undone on appeal. Titmas v. Superior Court, (2001) 87 Cal.App.4th 738, 744, n. 4. But usually a writ won't issue just because the court overruled your demurrer and you have to go to trial. Ordway v. Superior Court, (1988) 198 Cal.App.3d 98, 101, n. 1.

 

4. What does a writ petition look like?
A writ petition usually begins with an introduction--ideally no more than a page or two--that describes the issue and why relief is needed to avoid irreparable harm. Next is the petition, with numbered allegations, a prayer, and verification. The final part is the memorandum of points and authorities. See generally Cal. R. of Ct. 56(b).

 

There are special names for the parties. The petitioner is the party seeking relief, the respondent is usually the trial court, and the real party in interest is generally the party that prevailed below and will--rather than the respondent trial court--file any opposition.

 

The petition is accompanied by a separate appendix containing the parts of the record the court needs for review. See generally Cal. R. of Ct. 56(c).

 

5. What are the deadlines?
Writs specifically provided for by statute must be filed by the deadline prescribed in the statute, and the deadline is generally jurisdictional--meaning the appellate court has no power to grant relief if you are late, e.g., Code Civ. Proc., Secs. 437c(m)(1) (summary judgment denial: 20 days); 170.3(d) (judicial disqualification: 10 days).

 

Common law writs have no set deadline; however, courts expect them to be filed no later than 60 days after the challenged order is entered. Volkswagen of America, Inc. v. Superior Court, (2001) 94 Cal.App.4th 695, 701. Even so, don't rely on always having a full 60 days; since writ relief is equitable, the other side can always argue laches if the delay is prejudicial.

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