What Is The Difference Between A Common Law And Statutory Writ?

Writs occupy a unique position within the world of California appellate procedure. They are directives from the Court of Appeal to a trial court to either do or cease doing something. Whereas appeals are heard by the appellate courts as a matter of right, writs are a matter of discretion. They are also only granted in extraordinary circumstances. So while writs offer a petitioner significant relief, their use is considerably more limited compared to appeals.

Before availing oneself of writ relief, an attorney must understand the differences between a common law and a statutory writ. Each has their own unique time limits and other characteristics.

Writs Versus Appeals

The California appellate process is laden with rules and procedures that take a significant amount of time. By some estimates, the life of an appeal is anywhere from 14 to 16 months. During this time, an appellant could suffer irreparable harm because of an adverse trial decision. This is where a writ could offer relief.

A writ may be issued to direct a lower court to do or not do something. But writs are limited. While litigants have the right to appeal an adverse trial decision, appellate courts may or may not grant writ relief. They are discretionary and are usually only granted if the following two conditions are met:

  • The petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and
  • The petitioner will suffer irreparable injury if such relief is not granted

Not every matter fits these two essential requirements. However, a skilled California appellate attorney can review your circumstances and advise as to whether a writ is appropriate.

Common Law Versus Statutory Writs

Two broad categories of writs are common law and statutory, and they both have significant differences:

Common Law

Common law writs are those that are not expressly prescribed by statute.

There is no established time limit for filing a petition for a common law writ. However, parties should file a common law writ petition within 60 days of the challenged judgment, order, or decision. A petitioner who files later than 60 days must explain why and prove there’s no prejudice to the opposing party. But even if a petitioner files within the 60 days, it can be denied as untimely.

These are examples of common law writs:

  • Writs to prevent the disclosure of privileged information
  • Writs to challenge a motion to grant abritration

Statutory

When a writ is codified in law, it is called a statutory writ. The timelines to file petitions for statutory writs are typically included in the statutes themselves. These time periods are usually quite short and unforgiving. Failing to file within the statutory deadline deprives the appellate court of jurisdiction to grant it. But if the statute does not specify a deadline, the 60-day rule for common law writs applies.

A statutory writ usually does not deprive a petitioner of seeking an appeal. However, some lower court rulings may only be challenged via the statutory writ. One example is a denial of a motion to quash service of summons for lack of personal jurisdiction.

These are statutory examples of rulings that may be reviewed by writ petition (e.g. statutory writs):

  • Grant or denial of motion to disqualify judge
  • Grant or denial of motion to change venue
  • Gant or denial of motion to expunge lis pendens
  • Denial of motion to quash service of process
  • Grant or denial of motion for summary adjudication or denial of motion for summary
    judgment
  • Grant or denial of motion for good faith settlement determination

Contact Gusdorff Law for a Free Consultation

Here at Gusdorff Law, our appellate experience extends to obtaining writ relief for our clients. That means understanding the differences between statutory and common law writs. We can discuss with you whether an appeal or writ is appropriate in your matter. Give us a call today at 818-877-4515.

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