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84

th
Annual Meeting
Program 111

A Beginner’s Guide to Writ Practice


Saturday, September 17, 2011
10:30 a.m.-12:00 noon
Sponsored by the Litigation Section


The State Bar of California and the Office of Section Education and Meeting Services
are approved State Bar of California MCLE providers.
Points of view or opinions expressed in these pages are those of the speaker(s) and/or author(s). They have not
been adopted or endorsed by the State Bar of California’s Board of Governors and do not constitute the official
position or policy of the State Bar of California. Nothing contained herein is intended to address any specific legal
inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice
regarding specific legal situations.
©2011 State Bar of California
All Rights Reserved

THE STATE BAR OF CALIFORNIA
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Beginners Guide to Civil Writ Practice
in the California Courts of Appeal
Course Outline - 2011 State Bar Annual Meeting
This course consists of three parts. First the panel will explain the different types
of writ petitions, how they may be used, and the criteria for grant or refusal. The
emphasis will be on petitions for writs of mandate. The second section will demonstrate
in detail the basic components of a writ petition, showing how the structure of a writ
petition differs from the structure of an appellate brief. The course concludes with some
practical suggestions for writ preparation and filing.
WRIT PETITIONS – USE AND LIMITATIONS
1. Introduction of topics.
2. Why file a writ petition?
3. Types of Writ Petitions.
a. Supersedeas
b. Certiorari
c Coram Nobis and Coram Vobis
d. Habeas Corpus
e. Juvenile Dependency
f. WCAB
g ALRB
h. PERB
i. Mandate (CCP §§1084-097) & Prohibition (CCP §§ 1102-1105):
To correct abuse of discretion.
(1) Not to control exercise of discretion but must exceed all bounds of
reason
(2) Enforce a non-discretionary duty to act
(3) Must show irreparable injury
(4) Areas frequently the subject of these petitions:
(A) Discovery issues
(B) Disqualification of counsel: appealable but be sure to ask for
stay
(C) Compelling arbitration
(D) Denial or release of writ of attachment
(E) Denial of trial preference motion
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(F) Denial of motions seeking relief from government claims
procedure
(G) Order re-classifying case as a limited civil case
(H) Refusal of trial court to hear oral argument
(I) Defective subject matter jurisdiction
(J) Abatement of duplicative action
(K) Action after lapse of jurisdictional time limit
(L) Enforcement of void judgment or order
(M) Improper grant or denial of jury trial
4. Common Law and Statutory Writs
A statutory writ is one in which review by common law writ has been expressly
authorized by statute. Statutory writs differ from other common law writs in that a
specific time for filing the petition is set forth in the statute. Some, but not all statutory
writs may constitute the only appellate remedy for the aggrieved party.
a. Some of the statutory writs which are the only appellate remedy
(1) Grant or denial of motion to expunge lis pendens (CCP §405.39.)
(2) Grant or denial of motion for change of venue (CCP. §400.)
(3) Denial or grant of good faith settlement (CCP §877.6(e).)
Opinions differ on whether a writ petition is the only appellate
relief for the grant or denial of a good faith settlement. Some
districts require a writ petition be filed and denied before the issue
can be raised on appeal. As a result it is best to file a writ petition if
you wish to challenge the ruling on a motion to grant or deny a good
faith settlement agreement
(4) Grant or denial of disqualification of judge (CCP §170.3(d)
(5) Denial of motion to quash service of summons. (CCP §418.10(c))
(6) Certain orders re: unlawful detainer. Very time short limits
(7) Orders re inspection of public records (Gov. C. § 6259) See Powers
v. City of Richmond (1995) 10 Cal.4th 85
(8) Order upon review of administrative decision revoking, suspending,
or restricting a physician’s license. (Bus. & Prof. Code §2227) See
Leone v. Medical Board of California (2000) 22 Cal.4th 660
b. Statutory writs which are not the sole appellate remedy
(1) Grant of S.J. or grant or denial of S.A.I. (CCP §437c (m))
(2) Denial of motion to stay or dismiss for forum non conveniens
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(§418.10 (c)).
(3) Denial of motion to quash service of summons (CCP §418.10 (c))
(4) Grant or denial of coordination order (CCP §404.6)
(5) Sanctions of less than $5,000 (CCP§904.1(a))
- over $5000, appealable
- under $5,000 appealable with final judgment
c. The time limit for filing a common law writ is controlled by the doctrine of
laches: usually interpreted as sixty days from the date of the ruling.
(Volkswagen of America, Inc. v. Sup. Court (2001) 94 Cal.App.4th 695,
701.) But if you are seeking immediate action from the Court of Appeal,
the petition must be filed in time for the Court to consider, act and notify
the trial court of its action.
5. Court of Appeal Decisional Options
a. Summary denial, with or without informal opposition and reply
b. Usually alternative writ. Permits trial court to change its ruling
c. Sometimes peremptory writ in the first instance
See Palma v. United States Industrial Fasteners, Inc. (1984)
36 Cal.3d 171
d. Sometimes Order to Show Cause.
e. Suggestive "Palma" Notice
See Brown, Winfield & Canzoneri, Inc. v. Super. Ct. (2010)
47 Cal.4th 1234
6. Criteria for Grant or Denial of Petitions
a. Most are denied. It is extraordinary relief
b. No adequate remedy at law
c. Certain reversal/guaranteed trial
d. Irreparable Injury
e. Rare exceptions when public policy implications
f. Issue affects large number of people
g. Constitutional magnitude and prompt, statewide resolution required
h. Privilege violation threatened
i. Rights of non-parties threatened
j. Statutory preference (i.e., certain statutory writs)
k. Issue of first impression
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7. Procedural requirements
a. Be familiar with CRC Rule 8.486 re contents of petition and supporting
documents
b. Adequate record
c. Requirement for transcript
d. Timing
e. Requirements for request to file sealed documents
8. Response
See Rules of Court, rule 8.487
9. The Writ Petition – Examining A Sample
a. Difference between a writ petition and an appellate brief
b. Structure of a writ petition
c. Special requirements
10. Tricks of the Trade
a. Anticipate possible need for petition BEFORE you go to court
b. Is client willing to pay for petition?
c. Check filing deadline for potential writ petition before you go to court
d. At the hearing:
(1) Arrange to have a court reporter present
(2) Make necessary objections on the record
(3) If relief is a statutory writ petition which allows the trial court to
extend time for filing, request the extra time (if you need it) before
you leave the courtroom.
(4) Order an expedited transcript of hearing
(5) Be prepared to ask court for a stay of trial or other pending action
e. Prepare supporting exhibits immediately. Make sure you have all exhibits
required.
f. Understand special rules when an immediate stay is requested from the
Court of Appeal. Petition should be filed promptly so the Court has time to
consider the petition before the effective date of the event you want stayed
g. Consider how much time is necessary for personal service when multiple
parties must be served
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h. Make sure petition recites all procedural criteria, and that you have
included all the documents necessary to meet those criteria. Examples:
trial court orders extending time to file petition; transcript or alternative to
transcript. Note in the document how you have counted the days from trial
court’s ruling to filing the petition, to demonstrate the petition is timely
i. Check the local rules for special requirements, and double check with Court
Clerk
j Always call the Court Clerk to alert the Court in advance when you are
filing a petition requesting an immediate stay
k. DON’T FORGET THE CHECK!
10. Conclusion




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A______________________
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION __________
FICTITIOUS SMITH,
Plaintiff and Petitioner,
v.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA,
COUNTY OF SAN FRANCISCO,
Respondent.
__________________________________________________________
IMAGINARY JONES,
Real Party in Interest.
__________
Following Denial of Motion for Summary Judgment
County Superior Court No. XXXXX
The Hon.XXXXXXX, Judge
Dept. YXZ, Telephone 415 X3M-47PZ
PETITION FOR WRITOF MANDATE, AND/OR PROHIBITION
OR OTHER APPROPRIATE RELIEF; MEMORANDUM OF
POINTS AND AUTHORITIES; SUPPORTING EXHIBITS.
IMMEDIATE STAY REQUESTED OF ____________
(Insert what you want stayed, e.g., all proceedings; trial; pretrial; or other [describe])
DATE BY WHICH STAY IS NECESSARY:_____________
RELATED PROCEEDINGS IN THIS COURT
A-XXXXX
Attorney for Petitioner:
Attorney’s Name, Bar No., Address, Phone No.
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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
COMMENT:
See Cal. Rules of Court, rules 8.208 and 8.488
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TABLE OF CONTENTS AND AUTHORITIES
COMMENT:
Include a table of all exhibits.
Rule 8.486(b), (c) doesn't require placing it here as well as at the beginning of
each volume of exhibits, but it is convenient for the reviewing court.
If there are several volumes of exhibits, include the entire exhibit table in each
volume for the convenience of the reviewing court.
Remember to list "each document by its title and its index-tab number or letter
and page. If a document has attachments, the table of contents must give the title of each
attachment and a brief description of its contents." Rule 8.486 (c) (2)
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No.______________________
INTRODUCTION
COMMENT:
(1) Briefly, what are you challenging, what do you want and
when do you want it by?
EXAMPLE:
“By this timely, verified petition, Petitioner Fictitious Smith, plaintiff in Smith v.
Jones seeks a peremptory writ of mandate, prohibition or other extraordinary writ to
compel the Honorable Sally Stanford, Judge of the Superior Court, to set aside her
September 1, 2005 order denying petitioner’s motion for summary judgment.
In addition, pending this Court’s consideration of the petition, Petitioner prays for
an immediate stay of all proceedings in Smith v. Jones presently scheduled for pre-trial
proceedings on October 25, 2005. “
A stay is necessary [or “The matters presented by this writ petition are urgent”]
because Petitioner Smith was gravely injured in the car accident which is the basis of this
litigation, and, as a result if forced to proceed may have a limited time in which to
prosecute his action. The superior court's error in denying the motion for summary
judgment will inevitably result in the need to retry the case.
AUTHENTICITY OF EXHIBITS
EXAMPLE:
1. All exhibits accompanying this Petition are true and correct copies of original
documents on file with the Respondent Court, except Exhibit XX which is a true and
correct copy of the Reporter's Transcript of (Date) and Exhibit XXX which is a true and
correct copy of the Reporter's Transcript of (Date).
BENEFICIAL INTEREST OF PETITIONER; CAPACITIES OF RESPONDENT AND
REAL PARTIES IN INTEREST
COMMENT:
Petitioner -- who are you? Why do you have standing?
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Respondent: the lower court.
Real party [parties] in interest: the other side sometimes third parties
EXAMPLE:
2. Petitioner is the plaintiff in an action now pending in Respondent Superior Court
of the County of San Francisco, entitled Smith v. Jones. Defendant is named herein as
the Real Party in Interest.
CHRONOLOGY OF PERTINENT EVENTS
COMMENT:
Affirmatively plead all procedural prerequisites
A) Proper court. (Rule 8.485.)
B) Timeliness (applicable statutory requirement with reference to
exhibits proving compliance) or within sixty days if common law writ –
but usually less than 60 days when seeking immediate stay)
Note: Cal. Rules of Court, rule 8.25(b)(4) [timely filing by overnight
carrier not applicable to writ petitions.]
C) Adequate record: Plead each item, and reference its exhibit volume
umber or letter and exhibit volume page. That way you are sure
not to miss any.
Remember: A writ petition isn’t a motion for reconsideration.
Your record in the Court of Appeal must include all documents and
arguments that were before the superior court on the motion below.
In pleading your adequate record, you’ll necessarily recite a
procedural history of the case.
See rule 8.486 and recite:
i) Complaint and date filed.
ii) Answer and date filed.
iii) Motion and date filed.
iv) Opposition to motion and date filed.
v) Argument on motion and date held.
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TRANSCRIPT!!!! If the transcript is not ready, do a declaration
per Rule 8.486(b)(3) summarizing oral argument and stating when
you ordered the transcript and when you expect to file it.
Then, follow-up with the court reporter and keep the Court
of Appeal, the superior court, and real party informed.
EXAMPLE:
3. On, _______, Petitioner filed his complaint (Exh. _____) against Real Party
(Hereafter, “Jones”) for personal injury and related causes of action after suffering severe
injuries in a car accident which occurred on XXXXX.. ( Exh. 1., pp. 1-5.) Petitioner was
a passenger in a car driven by Jones which crashed into another vehicle on Highway xxxx
during a snowstorm. ( Exh. 1, p. 5.)
4. Jones filed his answer on __________. (Exh. ____.)
5. Discovery determined that neither Petitioner nor Jones recall the accident. (Exh. 4,
p. 3; Exh. 5 p. 7.)
6. There were no witnesses and the investigating police officer was unable to explain
how the accident occurred. (Exh. 19, p. 6.)
Paragraphs 7 – 13: Any other procedural history re: filings in the superior court.
14. Petitioner moved for summary judgment on XXXXXX, (Exh. ___)
15. Jones filed his opposition (Exh. ____) on XXXXX.
16. Petitioner filed his reply (Exh. ___) on ______.
17. Oral argument was heard before Respondent Superior Court on XXXXX. (Exh.
__)
18. Respondent Superior Court denied the Motion for Summary Judgment on
September 1, 2005, holding that XXXXXXXXXX (Exh )
19. This petition, filed October 6, 2005 is timely. The Superior Court issued its order
denying the motion for summary judgment on September 1, 2005 and served it by mail
on that date. (Exh. __ [Be sure to include proof of service.]) On September 15, 2005,
the Superior Court extended the time for filing this petition for an additional 10
days.(Exh. ___) Code Civ. Proc., § 437c, subd.(m), therefore authorizes the filing of
this petition today, October 6, 2005, the 35th day from September 1, 2005. (20 days plus
five days for service by mail of the superior court’s order, plus 10 day extension
authorized within original 20 days.)
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20. Trial is set for ___________ (Exh. ___)
BASIS FOR RELIEF
EXAMPLE:
21. The issue presented in this Petition is:
STANDARD OF REVIEW
EXAMPLE:
22. A motion for summary judgment involves pure matters of law. The court of
appeal independently examines the record to determine whether triable issues of material
fact exist (Citation)
ABSENCE OF OTHER REMEDIES
EXAMPLE:
23. The Respondent Court's denial of Petitioner's motion for summary judgment is not
appealable. (Code Civ. Proc. 904.1) Although he may appeal the ruling upon appeal
from a final judgment, he will be required to proceed with an unnecessary trial which
will inevitably be reversed. Delay of review until after final judgment would be an
inadequate remedy, because Petitioner’s failing health requires an immediate
determination resolving the issues presented herein.
Writ relief is therefore essential to avoid the waste of significant resources of the parties
and the courts in this case.
Petitioner has no adequate remedy at law for the relief sought in this Petition.
PRAYER
EXAMPLE:
Petitioner prays that this Court:
1. Issue an immediate stay of the XXXXXX trial date in the San Francisco County
Superior Court.
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2. Issue a peremptory writ in the first instance, commanding respondent superior
court to set aside its order denying Petitioner's motion for summary judgment, and
to enter a new and different order granting said motion.
3. If a peremptory writ is not issued in the first instance, petitioner prays that this
Court issue an alternative writ directing Respondent Court to set aside its order of
September 1, 2005 denying the motion for summary judgment, or show cause
why it should be not ordered to do so. Petitioner further prays that upon return of
the alternative writ, this Court issue a peremptory writ of mandate and/or
prohibition or such extraordinary relief as is warranted, directing Respondent
Court to set aside and vacate its order of September 1, 2005, denying the motion
for summary judgment, and to enter a new and different order granting the
motion;
4. Grant such other relief as may be just and proper.
Dated:
Respectfully submitted,
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VERIFICATION
EXAMPLE:
I declare that:
I am [the attorney; one of the attorneys] for Petitioner Fictitious Smith. I have
read the foregoing Petition for Writ of Mandate. The facts alleged in the petition are
within my own knowledge and I know these facts to be true. Because of my familiarity
with the relevant facts pertaining to the trial court proceedings, I, rather than petitioner,
verify this petition.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this Verification was executed on
xxxxxxxxxxxxxxxx at San Francisco, California.
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MEMORANDUM OF POINTS AND AUTHORITIES
COMMENT:
A. Don’t simply repeat your motion or your opposition below. (After all, you
lost.)
i) The trial court’s order is presumed correct. (Evid. Code § 664.)
ii) The petition must explain why, given the facts, timely and proper
objection, and the law, the trial court had no choice but to rule in
petitioner’s favor.
iii) Make sure you discuss and explain the evidence presented and the
cases cited below by real party. (After all -- he won.)
iv) If the court’s order made reference to evidence and case law, make
sure you discuss it and are able to distinguish it.
B. Don’t misrepresent the record.
C. Don’t be a jerk.
CONCLUSION
COMMENT:
Make sure you clearly ask the Court for the relief you want.
CERTIFICATE OF WORD COUNT
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PROOF OF SERVICE. (Rule 8.486 (e).)
COMMENT:
A. If you are seeking an immediate stay, personally serve the petition and
exhibits (or index of exhibits) on real parties, don’t send it slow mail or
overnight UPS/FED EX. Leave time to serve all parties before you file.
B. List phone numbers as well as addresses for real parties and the trial court.
C. If there’s more than one real party, note which attorney represents each
one.
D. Remember to serve a set of exhibits. (Rule 8.486(e).)
Instructors
William F. Rylaarsdam, Associate Justice, California Court of Appeal
District 4, Division 3
JUDICIAL EXPERIENCE
- California Court of Appeal, 1995 – present
- Superior Court, 1985 - 1995
- Private practice, civil litigation, 1964-1985
EDUCATION
- B.S., U.C., Berkeley, 1957
- J.D. (cum laude), Loyola Law School, Los Angeles, 1964
- LL.M. University of Virginia, School of Law, 1998
PUBLICATIONS
- published over 60 articles on various legal subjects
- authored approximately 2000 appellate opinions, including over 190 published
opinions
- co-author, “Civil Procedure Before Trial,” The Rutter Group
- co-author, “Statutes of Limitations,” The Rutter Group
PRIOR TO BECOMING A JUDGE:
-21 years private practice, primarily civil litigation.
-areas of emphasis: insurance coverage litigation, legal malpractice defense, and
general business litigation
Susan Horst
Susan Horst has been a staff attorney at the Court of Appeal, First Appellate
District, since June 1980, and the writ attorney for Division One since August 1981.
Previously she served as an Assistant District Attorney, City and County of San Francisco,
and as Assistant Provost for Faculty Affairs at Stanford University.
Susan is co-author of Chapter 25, "Termination of Prosecution Without Judgment,"
California Criminal Law: Procedure and Practice (Cont. Ed.Bar) and Chapter 7, "Mandate
& Prohibition Generally," Appeals and Writs in Criminal Cases (Cont. Ed.Bar), and is a
frequent lecturer on writ practice.
She received her B.A. in English from Stanford University (1969) and her J.D.,
from the University of Santa Clara School of Law (1976). She has been a member of the
State Bar of California since December 1976.
Joan Wolff
Joan Wolff is an appellate attorney, legal editor and mediator who practices in San
Francisco. She is certified as a specialist in appellate law by the Board of Legal
Specialization of the State Bar of California, is a member of the Executive Committee of
the Litigation Section of the State Bar, and on the editorial board of “California Litigation,”
the journal of the litigation section.
Ms. Wolff teaches in the appellate advocacy program at the University of
California’s Boalt Hall Law School, and lectures frequently for various continuing legal
education courses. She has written and co-authored numerous articles including “The
Requisite Writ” (Daily Journal) ; “The Trial Lawyer’s Best Friend” (California
Litigation); “Making a Bee-Line to the Appellate Court: The Expanding Use of Writ
Petitions as the Sole Appellate Remedy” (California Litigation) and “The ‘Dead-Bang
Winner’ or the Uncertain Nature of Prophesy” (California Litigation). She was named a
“Northern California Super Lawyer” by San Francisco Magazine in 2004, 2005, 2006 ,
2007 and 2008.
In addition to her appellate practice Ms. Wolff acts as a mediator in cases at all
stages of litigation and is a member of the First District Court of Appeals Mediation Panel.