- Appellate Litigation
If writs confuse you, you are not alone. This month reviews basics: What exactly is a writ and when does the Court of Appeal generally issue writ relief?
A “writ” is an order issued by the reviewing court directing the lower court to do something or prohibiting it from doing something. Writs permit the appellate court to review non appealable judgments and orders. Writ relief is extraordinary and completely discretionary, so 90-95% of them are denied, usually without explanation.
The Court of Appeal has “original” jurisdiction over a writ petition. (Cal. Const. Art. VI, § 10.) There are two categories of writs: common law and statutory.
The most frequent common law writs include writs of mandate (CCP § 1086 [to correct abuse of discretion or enforce a non discretionary duty]), writs of prohibition (CCP § 1103 [to prevent an act exceeding the court’s jurisdiction]), writs of certiorari (CCP § 1068 [seeking review of act that exceeded the court’s jurisdiction]), and writs of supersedeas (CCP § 923 [empowering court to keep the status quo through stay or other orders unrelated to merits of the action]).
Statutory writs differ from common law writs primarily concerning the deadlines in which to file the writ petition. Petitions for common law writs do not have a specific deadline, though commonly such petitions are filed within 60-days. Beyond that window, it becomes increasingly difficult to show a likelihood of imminent and irreparable harm. In contrast, some statutes provide for specific deadlines to challenge a ruling by writ petition. Many courts treat statutory writ deadlines as jurisdictional, failing to consider the petition after the deadline has passed.
Beware: There are some rulings for which statutory writs provide the exclusive remedy for review, including but not limited to:
an order on a motion to quash service of process for lack of personal jurisdiction (CCP § 418.10(c));
an order on a motion to disqualify a judge (CCP § 170.3(d));
the granting or denial of a motion to expunge a lis pendens (CCP § 405.39); and
compelling or refusing disclosure of public documents under the Public Records Act (Gov.C. § 6259(c).)
To optimize the chance of writ relief, the petitioner must satisfy the following requirements:
- The petitioner must not have any other “adequate remedy” at law;
- The petitioner will suffer “irreparable harm” absent writ relief; and
- The petitioner has a “beneficial interest” in the lawsuit (however, for writs of mandate the petitioner must have standing)
Additional circumstances that may increase the likelihood of writ relief include opportunities for the appellate court to: resolve conflicts amongst trial courts in the application of a law; correct a ruling or order that is both clearly erroneous and causes petitioner substantial prejudice; to correct a ruling or order that substantially deprives a party of its opportunity to plead or present a substantial portion of the claim; to protect a potential violation of privilege; to address newly enacted legislation; or to address a matter of widespread interest.
Two Quick Tips
(A) Prior to bringing a writ petition, first seek relief in the lower court. Otherwise, it can be difficult to show the petitioner had no other adequate remedy at law. (B) Immediately request a transcript of the relevant proceedings, which is usually a required part of the record. (Cal. Rules of Court, Rule 8.486.)
Janet Gusdorff
