By Joan Wolff
This article appears on Page 7
This article discusses some of the basic issues involved in filing a petition for writ of mandate. Although the focus will be on writs in civil cases, many of the procedures are the same in criminal cases.
The objective of this article and self-study test is to provide attorneys and both trial and appellate bench officers with the fundamentals of civil petitions for writ of mandate. Readers will learn the applicable statutes and rules of court, the applicable time limits, contents of petitions and other nuances of writs.
Writ petitions are disfavored by appellate courts, and usually result in a summary denial. See, e.g. Omaha Indemnity Co. v Superior Court, 209 Cal.App.3d 1266 (1989). They are also expensive to prepare and to file.
In most circumstances the appellate court's decision to review the merits of an issue presented by a writ petition is completely discretionary. But, some trial court rulings may be challenged only by a petition for writ of mandate. See, e.g., Code of Civil Procedure Section 170.3(d) [motion to disqualify a judge]; Section 405.39 [expungement of lis pendens]. In these cases, review is not discretionary. The court in Leone v. Medical Board, 22 Cal.4th 660 (2000), held that where a statute provides that a petition for writ of mandate is the only appellate remedy, the petition must be considered on the merits, if it is procedurally correct.
Although writ review in most cases is discretionary, the Supreme Court has identified areas in which review should be granted: the issue in the writ petition is of widespread interest, or presents a significant and novel constitutional issue; the trial court's order deprived petitioner of an opportunity to present a substantial portion of his or her cause of action; conflicting trial court interpretations of the law require a resolution of the conflict; the trial court's order is both clearly erroneous as a matter of law and substantially prejudices petitioner's case; the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief; and the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal. Brandt v. Superior Court, 37 Cal.3d 813 (1985); Vasquez v. Superior Court, 4 Cal.3d 800 (1971); Greyhound Corp. v. Superior Court, 56 Cal.2d 355 (1961); Schweiger v. Superior Court, 3 Cal.3d 507 (1970); Phelan v. Superior Court, 35 Cal.2d 363 (1950); Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652 (1975).
Of course, the extent to which these criteria apply depends on the facts and circumstances of the case. Counsel should feel free to point out that "the intervention of an appellate court may be required to consider instances of a grave nature or of significant legal impact, or to review questions of first impression and general importance to the bench and bar where general guidelines can be laid down for future cases." Hogya v. Superior Court, 75 Cal.App.3d.
Basic Requirements for Writ Review
The general statutes governing extraordinary writ petitions are Code of Civil Procedure Sections 1067-1077 and Section 1107 for certiorari; 1084-1097 and Section 1107 for mandate; and 1102-1107 for prohibition. Frequently, counsel seeking a petition for a writ of mandate, will title it "Petition for Writ of Mandate, Prohibition or other Appropriate Relief." This is appropriate.
Writ relief may be authorized by common law, or by specific statutes. Some statutes authorizing writ relief are Code of Civil Procedure Section 437c(a), challenging the denial of a motion for summary judgment or a grant or denial of summary adjudication; 170.3(d), challenging the grant or denial of a motion to disqualify a judge; and 400, challenging the grant or denial of a motion for change of venue. Statutory writ petitions have specific requirements and each statute may have its own provisions regarding important matters like the time in which to file the petition, and the event which triggers the running of that time.
Rule 8.490 of the California Rules of Court is key in setting out the procedural rules for preparing the writ in the California Court of Appeal. It contains essential information, including a list of the documents required in the appendix, the form of those documents, and the requirements for naming and serving parties. The local rules governing the appellate court where the writ will be filed must be reviewed for requirements specific to each district. Failure to follow the procedures laid out in court rules and the governing statute could result in an adverse ruling on the petition.
When a writ petition is specifically authorized by a statute, the time to file the writ is also set out in the statute, and may be very short. For example, a writ petition challenging a ruling regarding disqualification of a judge must be filed within 10 days from service of written notice of the judge's order. Code of Civil Procedure Section 170.3(d).
Other statutes have longer deadlines and different statutes may provide different triggering events. For example, Code of Civil Procedure Section 437c(m) requires filing a writ within 20 days from service of written notice granting or denying summary adjudication. On a showing of good cause, counsel may also move for an additional 10 days in which to file the petition. Counsel usually should move for such an extension immediately to ensure a timely filing.
The time in which to file a common law writ petition is governed by the doctrine of laches - usually interpreted as 60 days from the date of ruling. See, e.g., Volkswagen of America Inc. v. Super. Ct. (Adams), 94 Cal.App.4th 695 (2001). However, if the writ petition is requesting immediate action (for example, a stay of a trial scheduled to begin soon) the seriousness of the situation should be emphasized by filing quickly enough for the court to consider, act, and notify the trial court of its decision. The appellate court is unlikely to consider an argument that writ relief is necessary because of a serious emergency created by the trial court's ruling if a month has passed since that ruling was made.
Similarly, there are times when, for reasons beyond counsel's control, the petition cannot be filed within the 60 days. If the reason is good enough, and the merits warrant, the court may well consider a common law petition even though filed beyond the 60-day "deadline."
Contents of Exhibits
Unlike some appeals, the record that accompanies the petition is always prepared by counsel and filed concurrently with the pleading.
Each statement of fact in the petition must be supported by a citation to a trial court document; therefore the exhibits must be assembled and paginated early in the preparation of the petition. Because the petitioner asserts under penalty of perjury that all documents submitted are "true and correct" copies of those filed in the Superior Court, it is not required by the rules of court that file-stamped documents be used. Nonetheless, using file-stamped documents is the best practice.
Identifying, assembling, organizing and indexing the exhibits can take a long time, and the rule requires that the exhibits be "consecutively numbered." California Rules of Court, Rule 8.490(d)(1). In those cases where the exhibits are numerous, counsel should consider having all potentially relevant documents scanned and organized electronically.
No matter how uneventful the hearing on the order being challenged, a transcript of the hearing is required to be provided to the appellate court. California Rules of Court, Rule 8.490(c)(1)(D). Counsel should request an expedited transcript as soon as possible. If for any reason the transcript is not available, or not ready at the time of filing, counsel must follow the procedure set out in California Rules of Court, Rule 8.490(c)(2) by including a declaration either explaining why a transcript is unavailable and fairly summarizing the proceedings, or stating that a transcript has been ordered and the date that it is expected to be done.
The Petition and Service
The caption of the writ petition must accurately identify the parties involved. If the petition names as a respondent a judge, court, board or other officer acting in a public capacity, the title must identify the name of any real party in interest. California Rules of Court, Rule 8.490(b)(2). If a related case was previously filed in the Court of Appeal, or if another issue in the present case has been the subject of a prior appellate proceeding, that fact should be stated on the cover of the petition along with the Court of Appeal number for the related proceeding. See California Rules of Court, Rules 8.490(b)(7), 8.116(a).
If counsel is requesting an immediate stay, that fact must also be stated on the cover of the brief. See California Rules of Court, Rules 8.490(b)(7), 8.116(a). The notice that a stay is requested should be in all capital letters, bold and underlined, and beneath that should appear the date and nature of the proceeding that is sought to be stayed.
The form of a writ petition differs from that of an appellate brief. However, as in an appeal, it begins with an introduction. Counsel should advise the appellate court immediately of the nature of the case, the specific issue raised by the petition and why writ relief is necessary - i.e., what irreparable harm will occur if the writ is not granted, and why appeal from the final judgment is inadequate or unavailable.
The actual "petition" follows, and is similar to a trial court pleading. It sets out the facts in numbered paragraphs, supported by page references to the appendix. Then comes the prayer, a signed verification of the authenticity of the petition by a person with knowledge of the facts alleged, and points and authorities. See California Rules of Court, Rule 8.490(b). In addition, counsel must submit a certificate of interested parties at the beginning, and a certificate of word count at the end. See California Rules of Court, Rules 8.490(i), 8.490(b)(6), 8.204(c).
The prayer is a formal request for relief, in which the petitioner requests an alternative writ, a peremptory writ or both. See Code of Civil Procedure Section 1087. Counsel should check the local rules of the appellate court where the petition will be filed to determine whether that court requires specific pleading in the prayer.
The petition must be served on the respondent trial court, and all real parties in interest named in the petition, identifying the status of each party, the counsel representing that party and the counsels' phone numbers. California Rules of Court, Rule 8.490(f). Check local rules to determine if personal service is required. See, e.g., Fourth Appellate District Rule 1.
This information must be known in advance, because the logistics of personal service on all the parties before filing the petition may be complex, especially in congested communities, or where a party or counsel is out of the area.
If the petition is filed in the California Supreme Court, an original and 10 copies must be filed. California Rules of Court, Rules 8.44(a)(2), 8.490(d)(3). If the petition is filed in the California Court of Appeal, an original and four copies must be filed. California Rules of Court, Rules 8.44(b)(3), 8.490(d)(3).
Finally, don't forget the check. Contact the clerk of the court to determine the current fee for filing a writ petition.
The process of filing a writ petition is fraught with opportunities for missteps. Counsel must know the rules and write simply and clearly. Counsel should also understand that in the absence of either a situation in which immediate relief is required without which the petitioner will suffer irreparable harm, or the existence of a question of law that the appellate court determines requires an immediate resolution, the chances of success are small.
Joan Wolff is an attorney based in San Francisco specializing in civil appeals, mediation and appellate practice.