A writ is a type of court order that is used to compel a court, agency, or other entity to do something (or refrain from doing something) when other procedures are not available or adequate.1 In California civil cases, they are usually issued by higher courts to order lower courts to change their decision or take a certain action.2
The party seeking a writ must file a written petition with a court to obtain it.3 In California civil cases, there are a various types of writs a party can pursue. Each type of writ serves a different purpose.
This article takes a closer look at civil writs, and when they are appropriate in California state courts.
- 1 Distinguishing Civil Writs from Appeals
- 2 The Types Civil Writs, Defined
- 3 Common Law vs. Statutory Writs
- 4 Alternative vs. Peremptory Writs
- 5 Terms to Know
- 6 Likelihood of Success
- 7 Requirements of a Successful Writ Petition
- 8 Preparing a Writ Petition
- 9 Final Thoughts
Distinguishing Civil Writs from Appeals
In California, there are three levels of state courts—the superior courts, the courts of appeal, and the Supreme Court of California.4 Most cases start in the superior courts, which are California’s trial-level courts.
An appeal is an opportunity for the losing party to challenge mistakes made in the superior court.5 The party that files the appeal will argue that the higher court should order the lower court to make some change in its decision. That change might be a complete reversal of the case, or it might be a minor modification in the outcome.
A writ petition is similar to an appeal—in both types of proceedings a party is challenging an action they feel was a mistake. But writ proceedings have several features that make them distinct from appeals.
Writs Are Considered “Extraordinary”
In most cases, courts prefer to wait until the case is over to see whether the alleged error will be fixed or made irrelevant by the time the case reaches a final judgment.8 As one court explained:
“[E]xtraordinary relief is supposed to be extraordinary. It is not available as a matter of course . . . .”9
Thus, filing a successful writ petition can be more difficult than an appeal.
Writs Are Usually Discretionary
The fact that a lower court made a mistake is not generally enough to obtain writ relief.10 Writs are usually discretionary in nature,11 and courts will often decline to hear them until a final judgment has been rendered.12 This differs from appeals, which are generally heard as a matter of right.13
Importantly, however, when writ review is the exclusive means of reviewing a final order or judgment, courts are not permitted to exercise discretion in the manner stated above. If the writ petition is apparently meritorious, timely presented, and procedurally sufficient, the courts must entertain it.14
Most Writs Are Decided Summarily
Because the availability of writs is so limited, most writ petitions end with the reviewing court issuing a one-sentence order that denies the petition. These are called summary denials (the petition is considered summarily denied) and they usually contain no explanation about why the writ was denied.15
This differs from appeals, which usually conclude with the appellate court issuing a multi-page opinion that explains the court’s reasoning for its decision.
Writs Are Usually Faster Than Appeals
Despite the limitations explained above, writs have one important benefit that appeals do not: Speed. Usually, when a writ is granted, the party that filed the petition will obtain relief faster than they they would if they had filed a normal appeal.
This is due, in part, to the fact that writ petitions can often be filed shortly after an erroneous decision is made by the trial court. So, rather than waiting for a final judgment or an appealable order to issue, the petitioning party can usually pursue a writ petition right away. This can save the parties significant time and money.16
As such, there are a variety of situations where a writ petition might be advisable for California litigants.
The Types Civil Writs, Defined
As mentioned above, there are a variety of civil writs in California, and each serve a different purpose.
Writ of Mandate
- It can correct an abuse of discretion by a court, administrative body, or person;19 or
- It can compel a court, administrative body, or person to do something that the law requires of them.20
Put simply, the writ of mandate is used to correct mistakes that were the result of an abuse of discretion or the failure to act when the law requires it.21
Importantly, the writ cannot be used to control how discretion is exercised.22 It can only be used when there has been an underlying abuse of discretion or an entity’s failure to meet its legal duties.
The writ of mandate is usually only available to correct governmental errors. But it can sometimes be used against private parties to compel them to do something that the law requires.23 This usually happens when shareholders seek to force a business’s officers to take an action—like disclosing records.24
Finally, the writ of mandate will usually only be issued if the party seeking it will be directly benefited from its issuance.25 In essence, the petitioner must demonstrate they have some direct and substantial interest, over and above the interest held in common with the public at large, that the writ of mandate would protect.26
To learn more about the writ of mandate, please check my article: The Writ of Mandate (Mandamus) in California Courts.
Writ of Administrative Mandate
The writ of administrative mandate (sometimes called the writ of administrative mandamus) is similar to a normal writ of mandate, except that the California legislature has specifically authorized it to be issued by superior courts to compel administrative agencies to do or not do something.27
The writ of administrative mandate provides a way for aggrieved parties to challenge the final decisions of administrative agencies where no other adequate remedies are available.28
If an administrative agency has a procedure for parties to appeal its decisions, the writ of administrative mandate is usually not available until after that appeal has been exhausted.29
Writ of Attachment
The writ of attachment is a way for parties involved in litigation to ensure that the defendant will have sufficient assets to pay a judgment in the event the plaintiff is successful.30 If granted, the court will impose a lien on specific property owned by the defendant until a judgment is rendered in the case.31
The writ of attachment is only available in contract cases where a money judgment of at least $500 is being sought.32 To obtain it, the plaintiff will be responsible for showing:
- The case is one in which a writ of attachment is permitted,
- The plaintiff’s case will probably be successful,
- The attachment is sought only for the purpose of securing a recovery on the plaintiff’s claim, and
- The amount to be secured is greater than zero.33
Writ of Certiorari
In California state courts, the writ of certiorari (sometimes called a writ of review)34 is a way of requesting that a higher court review the proceedings in a lower court to determine whether it exceeded its jurisdiction.35
Any acts by a lower court that go beyond its defined power can be challenged in a writ of certiorari. Thus, if a trial court violates case law, court rules, the state or federal constitutions, or a statute, that act can be challenged by a writ of certiorari.36
Importantly, however, the writ of certiorari can only be used when there is no other any plain, speedy, and adequate remedy to correct the lower court’s error.37 So, if an appeal is available to a party, that procedure must normally be used instead of a writ of certiorari.38
It is also worth noting that a writ of certiorari can sometimes be used to review the decisions of state or local administrative agencies.39 But usually only if there are no other procedures available to challenge the agency’s decision.
Writ of Coram Nobis
The writ of coram nobis (sometimes called the writ of error coram nobis) is a way of challenging court judgments that were issued based on mistaken or omitted facts. If successful, the court judgments will be vacated and can be relitigated.40
To obtain a writ of coram nobis, five elements must be met:
- A fact existed but was not known to the court at the time it rendered a judgment;
- The fact is not being used to attack the merits of the factual determinations made at trial;41
- If the court had known about that fact, the judgment would have been prevented;
- The party seeking the writ of coram nobis was not at fault for failing to bring the fact to the attention of the court;42 and
- No other remedy exists to correct the erroneous judgment.43
Importantly, the writ of coram nobis cannot be used to attack legal mistakes made by the court.46 Its only use is to correct factual errors that would have prevented the court from rendering its judgment.47
Examples of the writ of coram nobis being appropriate include:
- Where a defendant was mentally incapacitated at the time of trial and that fact was not known by the court or the attorneys,
- Where a defendant was an infant and appeared by attorney without the appointment of a guardian or guardian ad litem,
- Where the defendant was dead at the time judgment was rendered,
- Where default was entered against a defendant who had not been served with summons and who had no notice of the proceeding,
- Where an attorney inadvertently entered an unauthorized appearance on behalf of a defendant who had not been served with process,
- Where a plea of guilty was procured by extrinsic fraud,
- Where defendants and their counsel were induced by false representations to remain away from the trial under circumstances amounting to extrinsic fraud, and
- Where a party was deprived of its defense because a clerk failed to properly file the party’s legal briefs.48
There are, of course, other situations where a writ of coram nobis might be appropriate, but these examples hopefully shed some light on how it can be used.
Writ of Execution
A writ of execution is an order that a plaintiff can seek after a money judgment is successfully obtained.49 If the defendant fails to pay the judgment owed, the writ of execution will allow the plaintiff to levy or seize the defendant’s assets.
In most cases, the earliest a writ of execution can be pursued is 30 days from the date that the Notice of Entry of Judgment was mailed.50
Writ of Habeas Corpus
A petition for a writ of habeas corpus is a way of attacking the validity of a court order, judgment, or government decision.53 It argues that a person has been unlawfully imprisoned or restrained in some way.54
Habeas petitions are popular because they can allow people to present new evidence to prove that their constitutional rights have been violated.55 This differs from many other procedures, which often prohibit the introduction of new evidence.56
Although a habeas petition is technically a civil proceeding, its use is mostly limited to attacking judgments and orders in criminal cases.57
It is possible, however, that a writ of habeas corpus would be appropriate in a civil case to attack a trial court’s contempt order if the petitioner is restrained or threatened with restraint in some way.58
To learn more about writs of habeas corpus, please read Habeas Corpus Petitions in California State Courts.
Writ of Possession
The writ of possession (sometimes called writ of claim and delivery or a writ of replevin) is a court order that permits a party to take immediate possession of another person or entity’s property.59 It is used to quickly obtain relief when someone is unlawfully possessing a specific piece of property of another.
The writ of possession differs from the writ of execution in that it can be pursued before a money judgment is obtained. In fact, the writ of possession can be pursued any time after a lawsuit is filed—including after the judgment is obtained.60
The writ of possession also differs from the writ of attachment. The writ of attachment is a remedy by which a plaintiff with a contractual claim to money (not a claim to a specific item of property) may have various items of a defendant’s property seized. A writ of possession, on the other hand, is usually issued when a party with a superior right to a specific item of property may have that item seized.61
Depending on the facts of the case, a writ of possession can issue against both real and personal property.62 But it usually cannot be issued against bank accounts or other intangible assets.
To obtain a writ of possession, the plaintiff in a lawsuit must submit a written application to the court that includes, among other things:
- A showing that the plaintiff is entitled to possess the property,
- A showing that the property is wrongfully possessed by the defendant,
- A description of the property sought and a statement of its value, and
- A description of the location of the property.63
The party applying for a writ of possession bears the initial burden of meeting each requirement.64
Writ of Prohibition
The writ of prohibition is a way of requesting that a higher court stop the proceedings in a lower court or state agency where one of the following is true:65
- The lower court or state agency is entertaining a case or issue that it has no jurisdiction to preside over,66 or
- The lower court or state agency has threatened to exercise a power that is unauthorized by law.67
Put simply, the writ of prohibition prevents a court from doing an act that is beyond that which the court is permitted by law to do. This is unlike other writs, which usually correct errors after they have been made.68
Because the writ of prohibition is preventative in nature, it cannot be used to address judicial acts that have already been completed.69 Its use is limited to attacking legally-unauthorized judicial acts before they occur.70
Additionally, the writ of prohibition cannot be used to attack incorrect decisions or abuses of discretion by a court or state agency.71 To attack an erroneous court decision, there are usually other remedies available (like taking an appeal or pursuing a different kind of writ).
Writ of Quo Warranto
The writ of quo warranto is a writ that the Attorney General of the State of California can pursue to challenge whether a person has a right to hold a particular public office.72 The Office of the Attorney General is required by law to file a petition for writ of quo warranto whenever it has reason to believe that a person is unlawfully occupying their office.73
Writ of Sale
The writ of sale is used to authorize a sheriff to take possession and sell the property of a losing party in a lawsuit.76 It is issued by a court after the winning party has successfully obtained a judgment for sale against the losing party.77
The writ of sale is sometimes considered to be a type of judicial foreclosure.78 It can be used to force the sale of both real property (like land or a house) and personal property (like a car or jewelry).79
The writ of sale must contain a description of the property to be sold, and the proceeds of the sale must be applied against the judgment that the writ was issued to enforce.80 The Judicial Council of California provides a specific form for the writ of sale, which is available by clicking here.
Writ of Supersedeas
A writ of supersedeas stops the proceedings of a court. It is usually issued by a higher court to prevent a judgment from being enforced in a lower court while an appeal is pending.81
Unlike many other writs, the issuance of a writ of supersedeas does not depend on whether error occurred in the lower court. The main focus of the writ is to prevent a party from being irreparably harmed during the pendency of an appeal.84
In some cases, enforcement of the lower court’s judgment is automatically stayed as soon as the appeal has been properly filed.85 But in other cases, the appealing party must file a petition for writ of supersedeas in the reviewing court.86
If court procedures allow it, a petition for writ of supersedeas should first be filed in the superior court.87 If there are no such procedures, the appealing party may request that the reviewing court issue a writ of supersedeas.88
Courts will usually grant a petition for writ of supersedeas if the appealing party can demonstrate that the denial of a stay would deprive them of the benefit of a successful appeal.89 This will often be the case where the appeal will be rendered moot if the lower court’s judgment is enforced.90
Common Law vs. Statutory Writs
There are several ways of thinking about civil writs. The most common way is by splitting them up by name, as described above. Some cases, however, have suggested that identifying the exact name of a writ is less important than what the writ actually does.91
Another way California courts think about civil writs is in terms of whether the authority for the writ has been codified in statutes. Writs that have been specifically authorized by the California State Legislature are called statutory writs.
Writs that find their authority outside of statutes—namely, those provided for in the California Constitution or in published opinions by California courts—are called common law writs.
List of Common Law Writs in California
There are three types of common law writs in California:
- The writ of mandate, which is used to correct mistakes that were the result of an abuse of discretion or to compel an entity to perform an act that the law requires;92
- The writ of prohibition, which is used to prevent a court from committing an an act that is beyond that which the court is permitted by law to do;93 and
- The writ of certiorari, which is used to review acts that are alleged to be beyond the defined power of a court.94
Although these writs are considered common law writs, because they are specifically authorized by the Constitution of the State of California, they have also been codified by statutes. As such, they can be pursued as either statutory writs or common law writs.95
When a writ is pursued as a common law writ, the court’s decision will generally be governed by guiding principles set out in prior court opinions. This is different than statutory writs, which are usually controlled by strict rules laid out in statutes.
There is usually no specific deadline to file a common law writ. Rather, it must be filed within a reasonable time of the challenged court order.96
Statutory writs, on the other hand, usually have clear deadlines defined by law. They are often very short.97
The specific guiding principles that govern common law writs will depend on the type of writ being pursued. Each of those writs and their requirements are described in their respective sections above.
Importantly, all three common law writs require, as a prerequisite, that there be no other adequate remedy at law.98 In other words, common law writs are usually a last resort for litigants where there is no other court procedure that can help them.
List of Statutory Writs in California
The benefit to pursuing a statutory writ is that some courts may review them more favorably than common law writs. The idea being that the legislature has specifically authorized the use of the writ in that situation, so it should perhaps be given more weight.
The California legislature has provided statutory writs for quite a few situations. Most involve the review of a court order. As such, a writ of mandate is usually (but not always) the appropriate type of writ to pursue.
Among others, a statutory writ petition can be filed to challenge the following:
- A superior court’s decision to revoke, suspend, or restrict a physician’s license;99
- An order granting or denying a motion to disqualify a judge;100
- An order granting or denying a motion to change the place of trial;101
- An order granting or denying a motion to reclassify an action;102
- An order granting or denying a motion to coordinate civil actions pending in different courts that share a common question of fact or law;103
- An order granting or denying a motion to expunge lis pendens (a recorded notice to potential purchasers of property that pending court actions may affect the property’s title);104
- An order granting or denying a motion to quash service of summons;105
- An order granting or denying a motion to stay or dismiss a case due to an inconvenient forum;106
- An order granting or denying a motion for summary adjudication;107
- An order denying a motion for summary judgment;108
- An order granting or denying a motion for good faith settlement;109
- An order awarding monetary sanctions in an amount less than or equal to $5,000.00;110
- An judgment on a writ petition in limited civil, misdemeanor, or infraction cases;111
- The denial of a stay of an unlawful detainer judgment;112
- An order granting or denying a request for the disclosure of public records;113
- An order denying a motion to set aside the indictment or information in a criminal case;114 and
- An order denying a motion to suppress evidence in a criminal case.115
Of course, this list is not exhaustive. So there may be other situations in which a statutory writ is appropriate.
Alternative vs. Peremptory Writs
There is one other way of thinking about civil writs: California’s Code of Civil Procedure divides the writ of prohibition and the writ of mandate into two types of writs: alternative and peremptory writs.116
An alternative writ commands a party to do something within a specific time. If the party fails to perform the action ordered of it, the alternative writ requires the party to explain why it has not done so.117 When a party has a valid excuse for not complying with a legal requirement, they are said to have “shown cause” why they have not complied.
A peremptory writ also commands a party to do something. But, instead of allowing the party to have an opportunity to explain why it cannot comply with the writ, the party has no choice but to follow it.118 A peremptory writ is effectively the court’s final decision on the writ petition.
In general, peremptory writs are disfavored unless an alternative writ has already issued in the case.119 And, unless there is some special urgency in the case, the court will first receive, or solicit, opposition from the party or parties adversely affected by the writ petition.120
Terms to Know
Lawyers engaged in writ proceedings use several terms that aren’t common in other types of cases. Those can be defined as follows:
A petitioner is the party who is requesting the writ.
A respondent is the entity that is alleged to have committed the violation described in the writ petition. It is usually the trial court, state agency, or other inferior tribunal.
Unless the respondent is directly impacted by the petition, they normally take a neutral role in the matter and are not entitled to respond to the petition.121
Real Party in Interest
A real party in interest is the party that will be directly affected by the outcome of the writ proceedings. The real party in interest is usually the other party to the lawsuit or proceeding being challenged, but it can also include anyone that has a direct interest in the result.122
They normally oppose the petition, and have a right to respond to it.123 There can sometimes be multiple real parties in interest.
Likelihood of Success
A party considering whether to file a writ petition should, as a practical matter, consider whether their petition is likely to succeed. Otherwise, the petition will be just a waste of time and money.
It can difficult to know a petition’s likelihood of success—some cases will involve facts that support very strong arguments, while others will not. But perhaps more important than the strength of the legal arguments is how “writ worthy” the particular issue is.124
Without a “writ worthy” issue, courts are unlikely to even consider the case. The Supreme Court of California has listed six factors courts should consider in deciding whether to entertain the merits of a writ petition:125
- The writ petition involves a significant and novel constitutional issue, or is an issue of widespread interest.126
- The trial court’s order deprived a party of an opportunity to present a substantial portion of its case.127
- Conflicting trial court interpretations of the law require a resolution of the conflict by a higher court.128
- The trial court’s order is both clearly wrong as a matter of law and substantially prejudices a party’s case.129
- The party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief.130
- The petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.131
The extent to which these criteria apply depends on the facts and circumstances of the case.132
In addition to these factors, it can be helpful to look at California’s statistics concerning writ review. The Judicial Council of California releases annual court statistics reports detailing the trends in California courts. The 2016 report (which is available here) included the data below from 2015 appellate cases.
Please note that this chart is posted here purely for educational purposes, and do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
In the fiscal year 2014–2015, California’s appellate courts decided 1,769 civil writ petitions.133 Of those, 1,638 petitions (or roughly 92.6%) were disposed of without a written opinion—which usually means that they were summarily denied.134
Thus, in the vast majority of cases, winning a writ petition will be difficult.
Requirements of a Successful Writ Petition
As explained above, there are a variety of writ types that California litigants can pursue. The requirements for each type will often depend on court rules, local customs, case law, and the specific statutes authorizing the writ.
A few common requirements are discussed below. It should be noted, however, that the requirements will not necessarily apply in every case—the requirements petitions will vary.
Standing to File a Writ
A petitioner seeking a writ must usually have a “beneficial interest” in the case.135 To establish this, the petitioner must demonstrate they have some direct and substantial interest, over and above the interest held in common with the public at large, that the writ would protect.136
Generally, beneficially-interested parties are entities that have been or will be adversely affected by governmental action or inaction.137 A writ will be denied if the party seeking it will gain no direct benefit from its issuance and suffer no direct harm without it.138
There is an important exception to the beneficial right requirement. An entity can seek a writ, even though not beneficially interested, the case involves an important public right and the object of the action is to enforce a public duty.139 The public interest exception is a very fact-specific analysis, where a court will generally weigh the interest of the general public against the impact that allowing the exception would have on the real party in interest.140
No Adequate Alternative Procedure
Writ petitions are usually only available when there is no other plain, speedy, or adequate remedy for the party to correct a lower court’s error.141 This means that if there is an alternative remedy available (like an appeal, for example) courts will not grant the writ petition.142
An adequate remedy will usually exist where the issue can be challenged later on appeal, or through a different court or administrative procedure.143 The question usually comes down to whether procedures are available that will properly afford a party the relief to which they are entitled.144 The issue is determined based on the specific circumstances of the case.145
Importantly, an adequate remedy will not exist if the party that filed the petition will suffer an irreparable injury if the writ is not granted.146 This is often the case where delay will case harm that cannot be undone. Courts have emphasized that an irreparable injury is not merely an irreparable inconvenience.147 The injury must be substantial and will usually involve a party’s rights—not mere expense.
Where a trial court ordered a party to disclose confidential communications between a patient and his psychotherapist, the order was reviewable through a writ petition.
An appeal would not have been adequate because waiting until the conclusion of trial would have forced the party to either: violate the confidential relationship, or violate the trial court’s order.148
Although the inadequacy of other remedies is a requirement for most cases, courts will sometimes exercise their discretion to grant a writ if the issues presented are of great public importance and must be resolved promptly.149 But, if the party bringing the petition can meet this requirement, they may be entitled as a matter of right to have the writ granted.150
Finally, the party bringing the petition cannot be responsible for the lack of an adequate alternative remedy, unless they have a good excuse. If, for example, they failed to file a timely appeal or let their rights lapse, a writ petition will likely be denied—courts will consider the adequate alternative to exist and to have been forfeited.151
A writ petition must be timely. The exact deadline will vary on the order being challenged, the court in which the petition is being filed, and the type of petition being pursued.
If, however, there is no prescribed statutory deadline and the petition is being filed in the California Court of Appeal, the court will have the authority to consider the writ petition at any time.154 But, unless there is a very good reason, courts will usually require the petition to be filed within 60 days of when the challenged order was serviced.155
If the challenged order was never served on the parties, a court might entertain a petition as late as 180 days from the date that the order was entered.156 But this situation would be rare.
Preparing a Writ Petition
What a Writ Petition Should Include
A writ petition should usually be composed of several parts, all of which must be formatted according to the applicable court’s rules.157
The exact composition of the petition will depend on the type of petition being pursued and the court in which it is being pursued. A few parts that many types of petitions must include are as follows:
- Cover Page. If the writ petition is being filed in the court of appeal, the cover page must be red.158 The cover page usually includes the caption of the parties, the court’s name, the numbers of any related cases, the title of the document, a description of the lower court, and the contact information of the filing party (or the attorney for the filing party).
- The Petition. The actual writ petition must: (1) explain why the reviewing court should issue the writ, (2) name the responding party and disclose the name of any real part in interest, (3) include a notice of any related appeals that may be pending, and (4) be verified.159 It is also usually a good idea to provide a brief introduction to the facts and the issues in the petition, with appropriate citations.160
- A Memorandum. The petition must include a memorandum of points and authorities that explains the legal basis for the petition. It should not restate any facts included in the petition, but should include citations to legal authorities and any exhibits or the trial court record.161
- An Adequate Record. Petitions must be accompanied by an record that is adequate for the reviewing court to know the all relevant facts of the case.162 If the party is challenging a lower court’s decision, the record should include a reporter’s transcript of the hearing and a clerk’s transcript of any documents relevant to the decision, including the filings of both parties and the order itself (if written).163
- Exhibits or Declarations If the record of the earlier proceedings is insufficient, it may be necessary to supplement it with additional information. This might mean furnishing a copy of exhibits,164 or presenting the court with declarations and supporting materials.165
- Certificate of Interested Parties. The California Rules of Court require parties in many civil cases to serve and file a certificate of interested parties, which discloses the parties that have financial interests in the case.166 The courts provide a specific form for this purpose.
- Filing Fees. Filing a writ petition will usually require a filing fee. The amount of the fee will depend on the court in which the petition is being filed, and the type of writ being pursued. In some cases, a fee waiver can be obtained.
In addition to these items the local court rules may impose additional requirements on the parties, so it is important to review all court rules before filing.
Additionally, the filing requirements may vary depending on the type of writ being pursued. In some cases, for example, there will be specific forms provided by the courts that must be included with the writ petition.
Because the requirements of an adequate writ petition can be numerous (and beyond the scope of this article) it is usually a good idea to consult with an attorney experienced in filing the specific type of writ you wish to pursue.
Requesting a Stay
There are special requirements for petitions that request a stay in a lower court’s proceedings. A stay is an order that stops the proceedings in a lower court from moving forward while the petition is pending.
If court procedures allow it, a stay should first be filed in the lower court.167 If that is not possible, the writ petition can request a stay.
To request a stay in the writ petition (if allowed), the petition should:
- Include on the cover page the words “STAY REQUESTED” and identify the proceeding or act sought to be stayed.168
- Include text on the cover page or near the beginning of the petition that states the trial court and department involved and the name and telephone number of the trial judge whose order the request seeks to stay.169
- Include in the body of the petition an explanation of why a stay is urgently needed.170
If the petition seeks a stay, it should also be personally served on the opposing party.
Pursuing or defending a writ petition can often be a complex venture. It’s usually helpful to have an attorney experienced in filing writ petitions.
If you are interested in filing or defending a writ petition in California, you should consider hiring a qualified writs and appeals attorney to advise you.
See, e.g., Code Civ. Proc, §§ 1070, 1085, 1086, 1102.Footnote 1
See Code Civ. Proc., § 1070 [“The writ may be directed to the inferior tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal, the clerk, if there be one, must return the writ with the transcript required.”]; e.g., Onesti v. Freelon (1882) 61 Cal. 625, 627 [“According to Section 1070, Code Civil Procedure, the writ should have been directed to the Court instead of the Judge, and the return should have been made by the Clerk.”].Footnote 2
See, e.g., Code Civ. Proc., § 1069 [“The application must be made on the verified petition of the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.”].Footnote 3
Cal. Const., art. VI, § 1 [“The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record.”].Footnote 4
See Code Civ. Proc., § 901.Footnote 5
Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240 [“The California Constitution grants the courts original jurisdiction in proceedings seeking extraordinary relief in the form of writs of mandamus, prohibition, and certiorari.”].Footnote 6
Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1243 [“Absent extraordinary circumstances, most writ applications seeking review of discretionary rulings are easily denied because of traditional appellate rules.”].Footnote 7
Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1100 [“[P]erhaps the most fundamental reason for denying writ relief is the case is still with the trial court and there is a good likelihood purported error will be either mooted or cured by the time of judgment.”].Footnote 8
Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 213.Footnote 9
See, e.g., Oceanside Union School Dist. v. Superior Court of San Diego County (1962) 58 Cal.2d 180, 185, fn. 4 [“The prerogative writs have been used frequently to review interim orders in discovery cases [Citations]. But this does not mean that these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous. In most such cases, as is true of most other interim orders, the parties must be relegated to a review of the order on appeal from the final judgment.”].Footnote 10
But see City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925 [“It is said that the writ rests in the discretion of the issuing court, but becomes a matter of right when the plaintiff shows that ‘there is not a plain, speedy, and adequate remedy, in the ordinary course of law.'”], quoting May v. Board of Directors (1949) 34 Cal.2d 125, 133; see also Code Civ. Proc., § 1086 [“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.”], emphasis added.Footnote 11
Pacific Tel. & Tel. Co. v. Superior Court of San Diego County (1970) 2 Cal.3d 161, 170 [“[A]ppellate courts must keep in mind that too lax a view of the ‘extraordinary’ nature of prerogative writs, rendering substantial pretrial appellate delay a usual hazard of the use of discovery, is likely to result in more harm to the judicial process than the denial of immediate relief from less significant errors.”].Footnote 12
Cinel v. Christopher (2012) 203 Cal.App.4th 759, 766, fn. 4 [“[U]nlike appeals, which are heard as a matter of right, writ review is deemed extraordinary and is discretionary and rarely granted.”]; Code Civ. Proc., § 902 [“Any party aggrieved may appeal in the cases prescribed in this title. A party appealing is known as an appellant, and an adverse party as a respondent.”].Footnote 13
Powers v. City of Richmond (1995) 10 Cal.4th 85, 114 [“[W]hen writ review is the exclusive means of appellate review of a final order or judgment, an appellate court may not deny an apparently meritorious writ petition, timely presented in a formally and procedurally sufficient manner, merely because, for example, the petition presents no important issue of law or because the court considers the case less worthy of its attention than other matters.”].Footnote 14
See Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241, fn. 3 [noting that in 2010 “approximately 94 percent of the petitions seeking writ relief in the Courts of Appeal are denied summarily.”].Footnote 15
See Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1101 [“[A]ppellate review these days, in consideration of our overly crowded dockets and generally understaffed Courts of Appeal, is unduly delayed, and cannot be compared to writ review in terms of time effectiveness.”].Footnote 16
Code Civ. Proc., § 1084 [“The writ of mandamus may be denominated a writ of mandate.”].Footnote 17
City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925 [“Mandate is the principal extraordinary writ surviving under California law.”].Footnote 18
Baldwin-Lima-Hamilton Corp. v. Superior Court of San Francisco (1962) 208 Cal.App.2d 803, 823 [“While mandamus will not lie to control the discretion exercised by a public officer or board [citations] it will lie to correct an abuse of discretion by such officer or board.”].Footnote 19
San Francisco v. Superior Court of San Francisco (1928) 94 Cal.App. 318, 320; Code Civ. Proc., § 1085 [“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”].Footnote 20
Rli Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 433 [“For our writs of mandate to issue, we must be convinced that the trial court abused its discretion . . . .”]; Riverside Sheriff’s Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289 [“In order to obtain an ordinary writ under Code of Civil Procedure section 1085 a petitioner must show that there is no other plain, speedy and adequate remedy, that the respondent has failed to perform an act despite a clear, present and ministerial duty to do so, and that the petitioner has a clear, present and beneficial right to that performance.”].Footnote 21
Baldwin-Lima-Hamilton Corp. v. Superior Court of San Francisco (1962) 208 Cal.App.2d 803, 823.Footnote 22
City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 927 [“It is true, however, that mandate will sometimes lie against a private person to compel performance of a duty.”].Footnote 23
See, e.g., Johnson v. Langdon (1902) 135 Cal. 624, 626 [“The remedy by mandamus is the appropriate remedy of the stockholder in case of a refusal of the statutory right.”]; Liberal Catholic Church v. Rogers (1944) 65 Cal.App.2d 196, 199.Footnote 24
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 170.Footnote 25
Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [“The beneficial interest must be direct and substantial.”]Footnote 26
Code Civ. Proc., § 1094.5.Footnote 27
Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321, 329 [“[T]he law is now established that mandamus is the remedial writ which will be used to correct those acts and decisions of administrative agencies which are in violation of law, where no other adequate remedy is provided.”].Footnote 28
McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 285 [“Where an administrative appeal is available but ‘no appeal is taken, there is a failure to exhaust administrative remedies, and mandamus will not lie.'”], quoting Grant v. Superior Court (1978) 80 Cal.App.3d 606, 609.Footnote 29
Code Civ. Proc., § 481.010, et seq.Footnote 30
Code Civ. Proc., § 488.500, subd. (a) [“A levy on property under a writ of attachment creates an attachment lien on the property from the time of levy until the expiration of the time provided by Section 488.510.”]; Arcturus Mfg. Corp. v. Superior Court of Los Angeles County (1963) 223 Cal.App.2d 187, 191–192 [“It is only a potential right or contingent lien that must be perfected by means of a judgment within the statutory period.”].Footnote 31
Code Civ. Proc., § 483.010, subd. (a) [“Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.”].Footnote 32
Code Civ. Proc., § 484.090, subd. (a).Footnote 33
Code Civ. Proc., § 1067 [“The writ of certiorari may be denominated the writ of review.”].Footnote 34
Code of Civ. Proc., § 1068; Holmes v. Justice’s Court of Oakland (1937) 19 Cal.App.2d 362, 365.Footnote 35
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291 [“[A]ny acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.”].Footnote 36
Code of Civ. Proc., § 1068, subd. (a) [“A writ of review may be granted by any court when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.”].Footnote 37
Casner v. Daily News Co. (1938) 12 Cal.2d 402, 406–407 [“In other words, when it was made to appear that an order sought to be annulled was appealable, the certiorari proceeding was at an end.”]; Blake v. Public Utilities Com. (1953) 120 Cal.App.2d 671, 673 [“when appeal lies from a void judgment or order, certiorari is not available whatever the character of the invalidity.”].Footnote 38
See, e.g., Meyers v. Board of Supervisors (1952) 110 Cal.App.2d 623, 626 [“The question is whether the board of supervisors acted in excess of its jurisdiction.”]; Pub. Util. Code, § 1756, subd. (a) [“[A]ny aggrieved party may petition for a writ of review in the court of appeal or the Supreme Court for the purpose of having the lawfulness of the original order or decision or of the order or decision on rehearing inquired into and determined.”].Footnote 39
People v. Kim (2009) 45 Cal.4th 1078, 1096 [“As a nonstatutory motion to vacate has long been held to be the legal equivalent of a petition for a writ of error coram nobis [citations], we consider these claims together.”].Footnote 40
People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [“the new evidence does not go to the merits of the issues of fact determined at trial”]; People v. Tuthill (1948) 32 Cal.2d 819, 822 [“It is a general rule that the writ will not be granted for newly discovered evidence going to the merits of the issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.”].Footnote 41
People v. Shorts (1948) 32 Cal.2d 502, 513 [“One who applies for a writ of coram nobis upon a ground such as the one here presented must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ; otherwise he has stated no ground for relief.”].Footnote 42
People v. Adamson (1949) 34 Cal.2d 320, 326-327 [“Its purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.”].Footnote 43
See, e.g., People v. Kim (2009) 45 Cal.4th 1078 [citing criminal cases exclusively while explaining the writ of coram nobis].Footnote 44
In re Dyer (1948) 85 Cal.App.2d 394, 400 [“The writ of error coram nobis may be used following judgment in a civil proceeding.”].Footnote 45
People v. Kim (2009) 45 Cal.4th 1078, 1093 [“Because the writ of error coram nobis applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, ‘[t]he remedy does not lie to enable the court to correct errors of law.'”], quoting People v. Banks (1959) 53 Cal.2d 370, 378.Footnote 46
People v. Sharp (1958) 157 Cal.App.2d 205, 207 [“The writ lies to correct only errors of fact as distinguished from errors of law.”].Footnote 47
People v. Kim (2009) 45 Cal.4th 1078, 1094; People v. Reid (1924) 195 Cal. 249, 258–259.Footnote 48
See Code Civ. Proc., § 699.510, subd. (a) [“after entry of a money judgment, a writ of execution shall be issued by the clerk of the court . . . .”].Footnote 49
Code Civ. Proc., § 1710.45, subd. (a) [“a writ of execution on a judgment entered pursuant to this chapter shall not issue, nor may the judgment be enforced by other means, until at least 30 days after the judgment creditor serves notice of entry of the judgment upon the judgment debtor . . . .”]; Kahn v. Berman (1988) 198 Cal.App.3d 1499, 1507 [“In most cases, a judgment creditor cannot have a writ of execution issued until at least 30 days after the judgment creditor has been served with notice of entry of the new judgment.”].Footnote 50
Code Civ. Proc., §§ 695.010, subd. (a) [“Except as otherwise provided by law, all property of the judgment debtor is subject to enforcement of a money judgment.”], 699.710; but see Code Civ. Proc., § 699.720 [listing types of assets not subject to a writ of execution].Footnote 51
Code Civ. Proc., § 706.021 [“Notwithstanding any other provision of this title, a levy of execution upon the earnings of an employee shall be made by service of an earnings withholding order upon the employer in accordance with this chapter.”].Footnote 52
In re Reno (2012) 55 Cal.4th 428, 452 [a petitioner may mount an “attack on a final criminal judgment by way of habeas corpus”].Footnote 53
In re Catalano (1981) 29 Cal.3d 1, 8 [“Although the chief use of habeas corpus has been to obtain the release of persons held in actual, physical custody, ‘[history], usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.'”].Footnote 54
In re Carmen (1957) 48 Cal.2d 851, 868–869 [“The courts of both the United States and California have declared that the remedy of habeas corpus permits an examination not only of the actual evidence introduced at petitioner’s trial but of any necessary additional evidence bearing upon the infringement of petitioner’s constitutional rights.”].Footnote 55
Redsted v. Weiss (1945) 71 Cal.App.2d 660, 666 [“Applications [in direct appeals] to produce additional evidence . . . will be granted only in exceptional cases.”].Footnote 56
In re Scott (2003) 29 Cal.4th 783, 815 [state capital habeas corpus proceeding in which a referee was appointed to take evidence and make findings on an inmate’s claims of ineffective assistance of counsel was civil in nature].Footnote 57
See, e.g., In re Buckley (1973) 10 Cal.3d 237, 240; Miller v. Municipal Court for Los Angeles Judicial Dist. (1967) 249 Cal.App.2d 531, 532 [“He was cited for a direct contempt; tried and adjudged guilty. He applied for a writ of habeas corpus, but before one was issued it turned out that the only punishment imposed was a fine, two hundred dollars. With the superior court’s blessing his petition was changed into one for a writ of review . . . .”].Footnote 58
See Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271 [explaining the writ of possession].Footnote 59
Code Civ. Proc., § 512.010, subd. (a) [“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.”]; Code Civ. Proc., § 712.010 [“After entry of a judgment for possession or sale of property, a writ of possession or sale shall be issued by the clerk of the court upon application of the judgment creditor and shall be directed to the levying officer in the county where the judgment is to be enforced.”].Footnote 60
Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271 [82 Cal.Rptr.2d 241].Footnote 61
Code Civ. Proc., §§ 1166a [permitting possession of real property], 1174 [same]; Olsen v. Santa Barbara’s Gracious Living, Inc. (2002) 103 Cal.App.4th 1377, 1379 [“Seller obtained a writ of possession for the personal property and levied on the writ.”].Footnote 62
Code Civ. Proc., § 512.010, subd. (b).Footnote 63
Sea Rail Truckloads v. Pullman, Inc. (1982) 131 Cal.App.3d 511, 515.Footnote 64
See Code Civ. Proc., § 1102 [“The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.”].Footnote 65
County of Sutter v. Superior Court of California (1922) 188 Cal. 292, 295–296 [the writ of prohibition “is issued only to arrest proceedings of a superior court which ‘are without or in excess of’ its jurisdiction”].Footnote 66
Bley v. Board of Dental Examiners (1932) 120 Cal.App. 426, 427–428 [“The law is well established that prohibition lies only when a subordinate court or tribunal is entertaining a proceeding of which it has no jurisdiction, or where it is assuming to exercise an unauthorized power in a cause or proceeding of which it has jurisdiction.”].Footnote 67
Rose v. Superior Court of Imperial County (1927) 80 Cal.App. 739, 744 [“It must be borne in mind that the function of the writ of prohibition is preventive and not corrective.”].Footnote 68
Dunn v. Justice’s Court of Sixth Township (1934) 136 Cal.App. 269, 271 [“The writ of prohibition is designed to be used as a method of securing preventive relief and not by way of reviewing proceedings already completed. It has always been used to prevent the performance of judicial acts only.”].Footnote 69
State Board of Equalization v. Superior Court of Shasta County (1937) 9 Cal.2d 252, 254 [“It is the law of this state that the writ of prohibition will lie only when the inferior tribunal is about to perform some judicial act unauthorized by law. ‘It is a preventive, rather than a corrective, remedy, and issues only to restrain the commission of a future act and not to undo an act already performed.'”].Footnote 70
Howard Greer Custom Originals v. Superior Court of Los Angeles County (1948) 87 Cal.App.2d 816, 817 [“Erroneous rulings cannot be reached in a proceeding for a writ of prohibition.”].Footnote 71
Code of Civ. Proc., § 803 [“An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise, or against any corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or exercises any franchise, within this state.”].Footnote 72
Code Civ. Proc., § 803 [“the attorney general must bring the action, whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor.”].Footnote 73
Code Civ. Proc., §§ 803, 810.Footnote 74
See, e.g., Code Civ. Proc., §§ 810, 811; Cal .Code Regs. tit. 11, §§ 1–11.Footnote 75
Code Civ. Proc., §§ 712.010, 716.010.Footnote 76
Code Civ. Proc., § 716.010, subd. (a) [“A judgment for sale of real or personal property may be enforced by a writ of sale issued pursuant to Section 712.010.”].Footnote 77
Coppola v. Superior Court (1989) 211 Cal.App.3d 848, 873 [“A judicial foreclosure sale is not a ‘judicial sale,’ albeit a court issues a ‘decree for foreclosure’ of the property. Instead, it is an ‘execution sale’ since the property is sold by execution of a writ of sale.”]; Parsons Brinckerhoff Quade & Douglas, Inc. v. Kern County Employees Retirement Assn. (1992) 5 Cal.App.4th 1264, 1267 [“foreclosure of a mechanic’s lien involves the ‘process of court,’ in the form of a judgment or order for sale and a writ of sale.”].Footnote 78
Code Civ. Proc., § 716.010, subd. (a).Footnote 79
Code Civ. Proc., §§ 716.010, subd. (b), 716.020, subd. (c).Footnote 80
See, e.g., Cal. Rules of Court, rules 8.112, 8.116, 8.824; Smith v. Smith (1928) 91 Cal.App. 743, 745 [“[A] writ of supersedeas can only be issued to stay further action of the court, and acts only in staying the hand of the court, and not in undoing anything which has previously been done by the court . . . .”].Footnote 81
Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1160 [“[S]upersedeas in the appeal would have been the proper procedure to obtain a stay.”].Footnote 82
Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1428.Footnote 83
Mills v. County of Trinity (1979) 98 Cal.App.3d 859, 861 [“We have fully considered the respective rights of the litigants in this appeal and conclude that stay of the judgment is necessary to protect the appellants from the irreparable injury they will necessarily sustain in the event their appeal is deemed meritorious”].Footnote 84
See, e.g., Code Civ. Proc., § 916, subd. (a) [“[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”].Footnote 85
See, e.g., Cal. Rules of Court, rule 8.112, subd. (a)(1) [“A party seeking a stay of the enforcement of a judgment or order pending appeal may serve and file a petition for writ of supersedeas in the reviewing court.”].Footnote 86
Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 157 [“An application for a stay of a judgment should, wherever possible, be made first in the superior court.”].Footnote 87
See, e.g., Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 462 [“The Haileys appealed and later filed a petition for writ of supersedeas to stop Blue Shield from executing on its judgment. We granted a temporary stay of execution pending resolution of this appeal, and invited amicus curiae briefs from various organizations.”].Footnote 88
Deepwell Homeowners’ Protective Asso. v. City Council of Palm Springs (1965) 239 Cal.App.2d 63, 65 [“Although there is authority to the effect that supersedeas will not lie where no process is required for the enforcement of the judgment appealed from [citation], the inherent power of the appellate court will apply where the effect of the judgment, as here, is such that a stay is ‘necessary or proper to the complete exercise of its appellate jurisdiction [citations]’ [citation] and where denial of a stay would result in depriving an appellant of the fruits of his appeal should he be successful in securing a reversal of the judgment.”].Footnote 89
People ex rel. San Francisco Bay Conservation & Development Com. v. Emeryville (1968) 69 Cal.2d 533, 537 [“had Emeryville been permitted to resume its fill activities, it would have been able, as a practical matter, to render this appeal moot.”].Footnote 90
Rio Del Mar Country Club, Inc. v. Superior Court of Santa Cruz County (1948) 84 Cal.App.2d 214, 217 [“[I]f mandate is the proper remedy the petitioner will not be denied relief because of the erroneous choice of remedies.”].Footnote 91
Rli Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 433.Footnote 92
Bley v. Board of Dental Examiners (1932) 120 Cal.App. 426, 427–428.Footnote 93
Cal. Const. Art. VI, § 10; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291.Footnote 94
See, e.g., Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 542 [writ of mandate pursued as a statutory writ]; Code Civ. Proc., §§ 1068 [certiorari], 1085 [mandate], 1102 [prohibition].Footnote 95
e.g., Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499 [“An appellate court may consider a petition for an extraordinary writ at any time . . . .”].
See, e.g., Code Civ. Proc., §§ 400 [20 days], 418.10, subd. (c) [10 days]. 437c [20 days].Footnote 97
See Phelan v. Superior Court of San Francisco (1950) 35 Cal.2d 363, 366 [in petitions for writ of mandate, “it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner”].Footnote 98
Bus. & Prof. Code, § 2337; Landau v. Superior Court (1998) 81 Cal.App.4th 191, 198 [“Effective January 1, 1996, the Legislature has provided that appellate review of the superior court’s decision shall be pursuant to a petition for an extraordinary writ.”].Footnote 99
Code Civ. Proc., § 170.3, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding.”].Footnote 100
Code Civ. Proc., § 400.Footnote 101
Code Civ. Proc., § 403.080 [“When an order is made by the superior court granting or denying a motion to reclassify an action or proceeding pursuant to Section 403.040, the party aggrieved by the order may, within 20 days after service of a written notice of the order, petition the court of appeal for the district in which the court granting or denying the motion is situated for a writ of mandate requiring proper classification of the action or proceeding pursuant to Section 403.040.”].Footnote 102
Code Civ. Proc., §§ 404, 404.6.Footnote 103
Code Civ. Proc., § 405.39 [“Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate.”].Footnote 104
Code Civ. Proc., § 418.10, subd. (c).Footnote 105
Code Civ. Proc., § 418.10, subd. (c).Footnote 106
Code Civ. Proc., § 437c, subd. (m)(1).Footnote 107
Code Civ. Proc., § 437c, subd. (m)(1).Footnote 108
Code Civ. Proc., § 877.6, subd. (e).Footnote 109
Code Civ. Proc., § 904.1.Footnote 110
Code Civ. Proc., § 904.3 [“An appeal shall not be taken from a judgment of the appellate division of a superior court granting or denying a petition for issuance of a writ of mandamus or prohibition directed to the superior court, or a judge thereof, in a limited civil case or a misdemeanor or infraction case. An appellate court may, in its discretion, upon petition for extraordinary writ, review the judgment.”].Footnote 111
Code Civ. Proc., § 1176, subd. (a) [“If the stay is denied by the trial court, the defendant may forthwith file a petition for an extraordinary writ with the appropriate appeals court.”].Footnote 112
Gov. Code, § 6259, subd. (c).Footnote 113
Pen. Code, § 999a.Footnote 114
Pen. Code, § 1538.5, subd. (i) [“After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.”].Footnote 115
Code Civ. Proc., §§ 1087, 1088, 1104, 1105.Footnote 116
Code Civ. Proc., §§ 1087, 1104.Footnote 117
Code Civ. Proc., §§ 1087, 1104.Footnote 118
Code Civ. Proc., §§ 1088, 1105.Footnote 119
Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236 [“[A]bsent exceptional circumstances requiring immediate action, the court should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected.”].Footnote 120
Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 576, fn. 6.Footnote 121
Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 859Footnote 122
Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1132 [“A person or entity whose interest will be directly affected by writ proceedings has standing to appear in a writ matter.”].Footnote 123
Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1243 [“some writ applications are more ‘writ worthy’ than others.”].Footnote 124
Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274.Footnote 125
Britt v. Superior Court (1978) 20 Cal.3d 844, 851–852.Footnote 126
Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807.Footnote 127
Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378.Footnote 128
Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517.Footnote 129
Phelan v. Superior Court (1950) 35 Cal.2d 363, 370–372.Footnote 130
Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 [125 Cal.Rptr. 553, 542 P.2d 977]; Roberts v. Superior Court (1973) 9 Cal.3d 330.Footnote 131
Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274.Footnote 132
Judicial Council of California, 2016 Court Statistics Report at p. 152, available here.Footnote 133
See also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241, fn. 3 [noting that in 2010 “approximately 94 percent of the petitions seeking writ relief in the Courts of Appeal are denied summarily.”].Footnote 134
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165 [“As a general rule, a party must be ‘beneficially interested’ to seek a writ of mandate.”].Footnote 135
Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [“The beneficial interest must be direct and substantial.”]; Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [“The requirement that a petitioner be ‘beneficially interested’ has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”].Footnote 136
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 913.Footnote 137
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 170.Footnote 138
Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [“The ‘public interest’ exception also confers standing where the question is one of an important public right and the object of the action is to enforce a public duty.”].Footnote 139
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 170.Footnote 140
See, e.g., Rescue Army v. Municipal Court of Los Angeles (1946) 28 Cal.2d 460, 465 [“It is not, of course, a proper case for prohibition if there is a plain, speedy and adequate remedy in the ordinary course of law.”]; see also Code of Civ. Proc., § 1068, subd. (a) [permitting a writ of review only when “there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy”].Footnote 141
W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist. (1959) 176 Cal.App.2d 67, 75 [“The issuance of mandamus depends . . . upon the absence of another adequate remedy.”].Footnote 142
Ex parte Fahey (1947) 332 U.S. 258, 260 [67 S.Ct. 1558, 1559] [writs not a substitute for appeals].Footnote 143
Carter v. Superior Court of Los Angeles County (1950) 96 Cal.App.2d 388, 392.Footnote 144
San Francisco v. Superior Court of San Francisco (1928) 94 Cal.App. 318, 320 [“What is a plain, speedy, and adequate remedy in the ordinary course of law is always a question of fact to be determined upon the circumstances of each case, and when it appears that the ordinary remedies would not be plain, speedy, and adequate the court has jurisdiction to entertain the proceeding, and the petitioner is then entitled to the writ as a matter of right.”].Footnote 145
Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101, fn. 1.Footnote 146
Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101, fn. 1 [“Prerogative writs should issue where irreparable injury is threatened, but rarely otherwise. A trial does not generally meet the definition of “irreparable injury,” being at most an irreparable inconvenience.”].Footnote 147
Roberts v. Superior Court (1973) 9 Cal.3d 330, 336.Footnote 148
Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328 [” Although the job search orders are appealable as orders made after judgment [citation], we nonetheless conclude petitioners’ claims warrant extraordinary relief because ‘”the issues presented are of great public interest and must be resolved promptly.”‘”]; Silva v. Superior Court (1993) 14 Cal.App.4th 562, 574 [reaching a similar conclusion].Footnote 149
Nielsen v. Richards (1924) 69 Cal.App. 533, 547 [“Where one has a substantial right which may be enforced by mandamus, ‘and there is no other plain, speedy, and adequate remedy in the ordinary course of law, he is entitled as a matter of right to the writ.'”], quoting Gay v. Torrance (1904) 145 Cal. 144, 148.Footnote 150
County of Tulare v. Woody (1933) 132 Cal.App. 459, 462 [“petitioner did have a legal remedy which was ‘equally convenient, beneficial, and effective’ and if by reason of its neglect that remedy is no longer available the remedy here sought should not be granted”]; Wadey v. Justice Court, Upland Judicial Dist. (1959) 176 Cal.App.2d 426, 428–429.Footnote 151
See, e.g., Sturm v. Superior Court (1985) 164 Cal.App.3d 579, 581.Footnote 152
See, e.g., Code Civ. Proc., §§ 400 [20 days], 418.10, subd. (c) [10 days]. 437c [20 days].Footnote 153
Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499 [“An appellate court may consider a petition for an extraordinary writ at any time . . . .”].Footnote 154
Cal West Nurseries v. Superior Court (2005) 129 Cal.App.4th 1170, 1173.Footnote 155
American Property Management Corp. v. Superior Court (2012) 206 Cal.App.4th 491, 499.Footnote 156
See Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453, 461, fn. 4 [respondent seeking dismissal of petition on the grounds that it failed to include numbered paragraphs].Footnote 157
Cal. Rules of Court, rule 8.40.Footnote 158
Cal. Rules of Court, rule 8.486, subd. (a).Footnote 159
Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 938 [“Absent a factual statement of the nature of petitioners’ complaint in the trial court, we cannot determine whether the second cause of action to which the demurrer was sustained is legally sufficient.”].Footnote 160
Cal. Rules of Court, rule 8.486, subd. (a)(5) [“The petition must be accompanied by a memorandum, which need not repeat facts alleged in the petition”].Footnote 161
Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186–187 [“A defendant seeking review of a ruling of the trial court by means of a petition for extraordinary writ must provide the appellate court with a record sufficient to permit such review. [Citations.] The record must if possible be lodged with the appellate court at the time the original petition for writ is filed. To be adequate, such a record should ordinarily include any written motion and opposition thereto together with their respective points and authorities, any relevant pleadings or reporter’s transcripts, and any written dispositive order.”].Footnote 162
Cal. Rules of Court, rule 8.486, subd. (b); Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1847, fn. 8 [“At the outset we note that we would have had good reason to deny this writ petition summarily. It is petitioner’s burden to provide this court with a record sufficient to permit review of the challenged ruling. To be adequate, such a record should include a reporter’s transcript of the hearing on the motion which resulted in the ruling adverse to petitioner.”].Footnote 163
Sherwood v. Superior Court (1979) 24 Cal.3d 183, 187 [“Whenever the consideration of an exhibit is necessary for a complete understanding of the case, a copy thereof must also be furnished.”].Footnote 164
McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1030, fn. 3 [“Although the Veit declaration was not before respondent, on an original petition for mandamus relief, the reviewing court in its discretion may consider it together with all other relevant evidence.”].Footnote 165
Cal. Rules of Court, rules 8.208, 8.488.Footnote 166
Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 157.Footnote 167
Cal. Rules of Court, rule 8.486, subd. (a)(7)(B).Footnote 168
Cal. Rules of Court, rule 8.486, subd. (a)(7)(C).Footnote 169
Cal. Rules of Court, rule 8.486, subd. (a)(7)(A).Footnote 170