Appellate Counsellor Tips

Step By Step Down The Road To A Writ Of Mandate

The trial court just denied your motion for summary judgment, but you know that the court is wrong. Or, your painstakingly researched demurrer that should have disposed of the entire case was overruled. What do you do now?

You cannot file an "appeal," because there is no decision that finally disposes of the case. (For more about finality, see Tips To Make Sure That Your Appeal Is Timely.) You may ask the appellate court to direct the trial court to grant your motion through issuance of a writ of mandate. This page takes you step by step through the writ process under California law. Click here for a PDF version of a writ petition.

Determine Whether Your Matter Is Suitable for Writ Review
Familiarize Yourself with the Procedural Rules
Assemble the Trial Court Documents
Grab the Appellate Court's Attention
Explain Why Writ Review Is Appropriate
Seek a Stay If Necessary
Prepare Formal Petition
Explain the Legal Error Clearly and Succinctly
Preliminary Determination by the Court of Appeal
Hearing and Decision
Additional Resources

1. Determine Whether Your Matter Is Suitable for Writ Review

Although California procedure permits writ review of trial court errors prior to entry of final judgment, not every claimed error will merit the appellate court's attention. For example, if the trial court orders more extensive answers to interrogatories than you think appropriate, you would be wasting your time to file a writ petition. However, there are certain trial court actions that may have significant impact on a case, and will merit writ review. Here are the principal examples:

Sustaining or overruling a demurrer
Granting or denying summary judgment or summary adjudication
Denying a motion to quash service or to dismiss on forum non conveniens grounds
A substantive discovery ruling, such as refusal to recognize a claim of privilege

2. Familiarize Yourself with the Procedural Rules

Rule 56 of the California Rules of Court is the principal provision that governs the handling of writ petitions in reviewing courts. You should review the complete text of the rule. It provides for the format of the petition, requires submission of points and authorities. and specifies the documents that must accompany the petition.

Matters not set forth in Rule 56 are governed by the Rules of Court generally applicable to appellate proceedings. See Cal. R. Ct. 53. For example, you must follow the requirements as to the form of a brief set forth in Rule 15. Rule 44 provides that you must file an original and four copies of the petition, and that the cover should be red. You will also want to review the local rules and the internal operating practices and procedures of the particular court of appeal to which you will submit your petition.

The Code of Civil Procedure sets time limits for the filing of some types of writ petitions. Code of Civil Procedure section 437c(l) provides that a petition based upon summary judgment proceedings must be filed within 20 days after service of written notice of entry of the order for which review is sought. Code of Civil Procedure section 418.10(c) provides that a defendant may seek writ review of an order denying a motion to quash service or to dismiss on forum non conveniens grounds within 10 days after service of written notice of entry of the order denying the motion.

3. Assemble the Trial Court Documents

California Rule of Court 56 requires that a writ petition be accompanied by:

a copy of the order from which you seek relief;
copies of all documents and exhibits submitted to the trial court supporting and opposing your position;
copies of all other documents submitted to the trial court that are necessary for a complete understanding of the case;
a transcript of the proceedings in the trial court, or a declaration that explains why no transcript is available and fairly summarizes the proceedings.

Among the "other documents" that you will normally wish to supply are the operative complaint and answer (if there has been one), so that the appellate court can understand the scope of the case before it. The documents must be bound together, tabbed, consecutively paginated, and be preceded by a table of contents. In most circumstances you will probably want to submit the documents in a separately bound volume of exhibits.

4. Grab the Appellate Court's Attention

California's courts of appeal receive a great number of writ petitions. In the 1993-94 fiscal year the statewide total was 7119, with 3717 of them having been filed in civil cases. During that same time period, the courts of appeal issued just 571 written opinions in all writ proceedings. The vast majority of writ petitions are denied without any explanation.

To maximize the likelihood that your petition will be one of those considered on the merits, you should focus on a single dispositive issue. Then distill the gist of your argument into two or three sentences to be presented at the very beginning of your petition along with a concise summary of the case. For example, here is the introduction to a writ petition that asked the Court of Appeal to direct the Superior Court to reverse its overruling of a demurrer:

Plaintiff James Ministeri, Jr., an employee of the County Department of Public Works, sued Defendant James Eliason, another employee of the County Department of Public Works, for injuries allegedly sustained from fumes in a County vehicle while Ministeri was performing work duties. The Superior Court overruled Eliason’s demurrer to the complaint, which had argued that failure to comply with the Torts Claims Act and workers compensation pre-emption barred the cause of action. This Court should issue a writ of manda-mus directing the Superior Court to set aside its determination and sustain the demurrer without leave to amend, because there is no question that Ministeri’s claim is barred. Allowing this action to continue wastes judicial resources, and subjects Eliason to unnecessary expense and inconvenience.

5. Explain Why Writ Review Is Appropriate

The appellate court will not take an interest in every issue that might be presented in a writ petition. Your petition must explain to the court why issuance of a writ is appropriate in your case. Click here for some arguments to support issuance of a writ in several common situations.

6. Seek a Stay If Necessary

In some situations, the petitioner may suffer prejudice, if proceedings in the trial court are allowed to continue on their normal course while a writ petition is pending. For example, if your summary judgment motion is heard relatively close to the trial date, there may not be time for the appellate court to consider the writ petition before the trial. In such circumstances you should seek a stay of the trial court proceedings from the court of appeal, in language like this:

This action is currently set for trial on April 24, 1996. Accordingly, Petitioners request that this Court give expedited consideration to this Petition, and that it issue an immediate stay of the trial date. Otherwise, Petitioners will be substantially prejudiced in that this Court would not have an opportunity to rule on the Petition before trial. In such circumstances, it is appropriate for this Court to issue a stay of the trial date. (See Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 438 [29 Cal.Rptr.2d 413]; Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1482 [16 Cal.Rptr.2d 888]; Pistone v. Superior Court (1991) 228 Cal.App.3d 672, 678, 684 [279 Cal.Rptr. 173]; Handschuh v. Superior Court (1985) 166 Cal.App.3d 41, 42-43 [212 Cal.Rptr. 296].)

If the court of appeal is interested in your case, it will issue a stay.

7. Prepare Formal Petition

Your writ application must include the formal "petition" that brings the case before the appellate court. This is similar to the complaint that is filed to bring the underlying case before the trial court. The writ "petition" recites in numbered paragraphs the important procedural events in the underlying case, and authenticates the pleadings and orders from the trial court record that are necessary to determine whether the writ should issue. Our sample writ petition shows how to do this.

8. Explain the Legal Error Clearly and Succinctly

A writ petition is not the place for a lengthy treatise on everything you know about a particular legal subject. Nor is it a place to complain about every conceivable legal error that may have occurred in the trial court. Concentrate on that one fundamental error that will make it worth the court's time to consider the merits of your petition.

As you develop your argument, try to keep in mind the many other petitions that will be competing for the court's attention. This should help you keep the argument short and to the point. Do not try to overwhelm the court with dozens of authorities. Use a few that are directly on point, and as current as possible. Use proper citation format.

While both Uniform System of Citation (Bluebook) and the California Style Manual formats are allowed (see, e.g., Cal. R. Ct. 313(e)), California appellate courts are accustomed to California style in their written opinions. You should use that style in materials that you submit to them.

In developing your writing style, follow these maxims drawn from Strunk and White's The Elements of Style:

Omit needless words
Be clear
Use the active voice
Put statements in positive form
Use definite, specific, concrete language
Avoid fancy words
Place yourself in the background
Write in a way that comes naturally
Write with nouns and verbs
Do not explain too much
Revise and rewrite

9. Preliminary Determination by the Court of Appeal

The court of appeal has authority to issue a "peremptory" writ granting the relief you request immediately. (Before doing so, it would normally invite opposition from your opponent.) However, the usual practice is to issue an "alternative" writ. Such a writ directs the trial court to either (a) enter a new order granting the relief that you seek, or (b) show cause why it should not be ordered to do so. Here is an example of an alternative writ.

10. Hearing and Decision

If the court of appeal issues an alternative writ, it will provide an opportunity for the trial court, or, as is usually the case, the real party in interest (that is, your opponent) to respond to your petition in writing. You will then have a chance to reply.

The alternative writ will also set a date for a hearing on the petition before the court of appeal. At that time the parties will have an opportunity to present oral argument on the issues raised by the petition. The court will then take the matter under submission.

By law the appellate court must issue its decision on a writ petition within 90 days after the matter is submitted. (Cal. Const., art. VI, sec. 19.) The decision will explain the basis for the court's disposition of your petition, and then either grant a peremptory writ directing the trial court to enter a new order, or deny the writ and leave the trial court's order in place.

11. Additional Resources

For a more comprehensive treatment of the subject, consult one of these treatises:

Jon B. Eisenberg, Ellis J. Horvitz, Howard B. Wiener, California Practice Guide: Civil Appeals and Writs, published by West Group.

California Civil Writ Practice (3d ed.), published by California Continuing Education of the Bar (CEB)