- Appellate Litigation
Supersedeas is a Latin term meaning “you shall desist.” Appropriately, a writ of supersedeas is a request for a court to stay enforcement of a judgment pending appeal. There are detailed guidelines for petitioning the court for a writ of supersedeas. But the writ can be useful for temporarily suspending the trial court’s authority to enforce judgments. Likewise, the non-petitioning party should know whether to oppose this writ and how. Gusdorff Law’s appellate practice team explains.
Writ of Supersedeas – what is it, and how does a party request one?
When trial courts issue judgments or orders, they may generally be enforced right away. However, the losing party could decide to appeal the case. In tandem with the appeal, the appellant may want to stay enforcement of the trial court judgment. This is where the writ of supersedeas comes in.
The appellant will file a verified petition in the California Court of Appeal. The petition must include a memorandum that explains the necessity of the request. The petitioner must show that it will suffer irreparable harm without the stay. The injury suffered because of a stay must be demonstrably greater than the injury to the opposing party.
If the record on appeal has not been filed, the petition must include a statement of the case. The memorandum has to include a fair summary of the material facts and the issues likely to be raised on appeal. The appellant must be able to show the ability to raise substantial issues on appeal.
Along with the petition, the appellant must file:
- A copy of the judgment or order, showing its date of entry.
- A copy of the notice of appeal, showing the date of filing.
- A transcript of oral statements by the court. These statements must support the court’s rulings related to the issues that are likely to be raised on appeal. If a transcript is unavailable, a declaration fairly summarizing any such statements must be filed.
- Any application for a stay filed in the trial court and any opposition to that application. Also, a reporter’s transcript of the oral proceedings concerning the stay. If a transcript is unavailable, a declaration fairly summarizing these proceedings must be filed.
- Any other trial court document that is necessary for consideration of the petition.
There are additional rules regarding these documents. They touch on page length, page numbering, indexing, and more.
If you would like to learn more about appellate law’s most underrated tool, view this page.
Should the non-petitioning party oppose the writ?
If you were the prevailing party in the trial court, you won’t agree with the petition. But should you oppose it? As mentioned above, the petitioner must be able to demonstrate certain elements. For one, the petitioner must show substantial injury would result if the writ is not issued. And it must outweigh any harm to the party opposing the writ. Therefore, the non-petitioning party may file an opposition if the writ would cause undue harm.
The opposing party has 15 days after the petition is filed to file and serve an opposition to it. The opposition must state any material facts not included in the petition. It must also include its own memorandum. The Court of Appeal may not issue a writ until the respondent has had the opportunity to file an opposition.
The Court of Appeal has the power to issue a writ of supersedeas on any conditions it deems just. If a writ is issued, the Court of Appeal must notify the trial court.
Gusdorff Law represents parties who want trial court judgments to be executed immediately. But it’s helpful to understand writs of supersedeas, how to file them, and how to oppose them. We know the complexities of the rules surrounding these writs. Have questions about them? Let us advise you today.
