Writ-Sy Business: The First Steps To Take Before Challenging A Trial Court Order & Filing That Writ

Author:Ms Karen Luh
Profession:Lewis Brisbois Bisgaard & Smith LLP

You've obtained an unfavorable trial court order, but you have no right to appeal. If you are in California, you are likely not without some relief. While each jurisdiction has its own unique process and law, in California, you can use a procedural device called a writ.

A writ is an order from a higher court compelling a lower court to do something that it has a legal obligation to do, or barring a lower court from doing something it does not have the legal authority to do.

In this post, we address a few key considerations in pursuing a writ, with a focus on the usual process for writs in the Appellate Division of the California Superior Court.

What are my chances? The first step is to undertake a cost-benefit analysis of seeking a writ, which can be a Herculean effort. Appellate review of writ petitions is discretionary, and a court of appeal will usually grant a writ petition only in exigent circumstances. What relief is available? There are three main types of writs: writs of mandate (ormandamus), which are orders to do something; writs of prohibition, which are orders not to do something; and writs of review (orcertiorari), which are orders providing for review of a judicial action that has already been taken. Again, not every mistake a trial court makes can be addressed by a writ (if it is addressed at all). In California, you also have the option for a writ related to a legal error (for example, an abuse of discretion, a refusal to act, or a wrongful action) or a writ based on statute (for example, disqualifying a judge or a denial of a motion for summary judgment or summary adjudication). When should I file? Depending on whether you are seeking a statutory or common law writ, the time limit for filing varies. Note that statutory writs are subject to short filing deadlines. Common law writs, on the other hand, are generally to be filed no...

To continue reading