Appellate Counsellor Tips

Step By Step Down The Road To A Writ Of Mandate:
Why Relief By Writ Is Appropriate

This page contains sample portions of a memorandum of points and authorities to support the issuance of a writ of mandate in the following situations. These situations are illustrative. Writ review may also be available in other circumstances, where immediate review is necessary to preserve important rights or to prevent undue prejudice.

Denial of summary judgment or summary adjudication

The Court should grant this Petition in order to effectuate the purpose behind the summary judgment procedure of providing a speedy legal resolution where the material facts are uncontested. The Code of Civil Procedure specifically authorizes a writ petition in circumstances like this. (Code Civ. Proc., sec. 437c, subd. (l).) Unless this Court grants its Petition, Petitioner will be denied the benefits of the summary judgment procedure. It will be forced to incur the costs of a full trial on the merits even though there is no triable issue as to any material fact. Petitioner has no adequate remedy other than a writ. Because of the policy behind the summary judgment procedure, the reviewing court should ordinarily consider the substantive merits of the motion when a writ petition seeks review of the denial of summary judgment:

Although the availability of an action at law or in equity normally precludes resort to the writ of mandate [citations omitted], courts generally consider the merits of a writ based upon a denial of summary judgment [citations omitted]. One purpose of summary judgment is to provide a speedy legal resolution of uncontested facts;  "denial of [summary judgment] when it should as a matter of law have been granted should open the door to an equally speedy review of the matter." [citation omitted] Because there is no appeal from a denial of summary judgment [citation omitted], the writ is the only speedy review available. (Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 468 [210 Cal.Rptr. 545], quoting Bank of America v. Superior Court (1970) 4 Cal.App.3d 435, 441 [84 Cal.Rptr. 421].)

Grant of summary adjudication

Section 437c of the Code of Civil Procedure specifically authorizes a writ petition in circumstances like this:

Upon entry of any order pursuant to this section except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ. (Code Civ. Proc., sec. 437c, subd. (l).)

Writ review of the grant of a motion for summary adjudication is particularly appropriate because effective review by appeal is unavailable:

[T]he order granting defendants' motion for summary judgment as to plaintiffs' second count effectively bars a substantial portion of plaintiffs' case from being heard on the merits. More particularly, were we not to issue the writ, were plaintiffs not to prevail on their other two theories, and were the order here under review determined to have been incorrect, then a second trial would be required, with the attendant waste of judicial resources.

(Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1183 [272 Cal.Rptr. 304]; see also Mason v. Superior Court (1985) 163 Cal.App.3d 989, 994 [210 Cal.Rptr. 63]; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558 [145 Cal.Rptr. 657].)

Overruling demurrer

This Court should grant this Petition to prevent a needless and wasteful trial. If the Petition is denied, Petitioner will be forced to incur the cost of preparing for a trial, even though there is no legal merit to any of the causes of action alleged in the Complaint. In such circumstances, Petitioner's only adequate remedy is a writ. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal.Rptr. 179, 479 P.2d 379]; California Physicians' Service v. Superior Court (1992) 9 Cal.App.4th 1321, 1330 [12 Cal.Rptr.2d 95].)

Sustaining demurrer as to less than all causes of action

This Court should grant an appropriate writ to avoid waste of the resources of both the Superior Court and of the parties, and to safeguard the substantive right embodied in the causes of action as to which the demurrer was sustained. Because of the Superior Court's error, reversal and retrial are inevitable no matter what the result in proceedings on the remaining causes of action.

If Petitioner should not prevail on the remaining causes of action, it would then appeal the dismissal of the causes of action as to which the demurrer was sustained. If the dismissal were reversed on that appeal, there would have to be a second trial, with the attendant waste of judicial resources.

In a case exactly like this, where the Superior Court had sustained demurrers to some, but not all, causes of action, the Supreme Court issued a peremptory writ of mandate directing the Superior Court to overrule the demurrers, and held that "mandamus will lie when it appears that the trial court has deprived a party of an opportunity to plead his cause of action or defense, and when that extraordinary relief may prevent a needless and expensive trial and reversal." (Coulter v. Superior Court (1978) 21 Cal.3d 144, 148 [145 Cal.Rptr. 534, 577 P.2d 669]; see also Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 [157 Cal.Rptr. 693, 598 P.2d 854]; Lacher v. Superior Court (1991) 230 Cal.App.3d 1038, 1042 [281 Cal.Rptr. 640].)

In this case, a needless retrial can only be avoided through issuance of an appropriate writ directing the Superior Court to overrule the demurrer in its entirety.

Refusing to dismiss for lack of personal jurisdiction

California Code of Civil Procedure section 418.10, subdivision (c) specifically authorizes a writ petition to review denials of motion to quash service of process and to dismiss on forum non conveniens grounds. (See Northern Natural Gas Co. v. Superior Court (1976) 64 Cal.App.3d 983, 995 [134 Cal.Rptr. 850] ("mandamus is the appropriate remedy").)

If writ review were unavailable, a defendant whose motion is denied could never obtain appellate review. That is because the defendant must respond to the complaint within 15 days after the motion is denied. (Code Civ. Proc., sec. 418.10, subd. (b).) However, by doing so the defendant would enter a general appearance and waive any jurisdictional objections. (Neihaus v. Superior Court (1977) 69 Cal.App.3d 340, 345 [137 Cal.Rptr. 905].) Therefore, review by way of appeal after a final judgment is unavailable. Review by writ is the only means of obtaining review in this Court of the denial of such a motion.

Refusing to recognize claim of privilege during discovery

Unless this Court grants her petition, Petitioner will suffer severe prejudice from the disclosure of privileged information. If the information were disclosed pursuant to the Superior Court's order, the prejudice could not be undone by a later appeal. Therefore, a writ is the only way to protect Petitioner from the irreparable harm that disclosure of the privileged information would cause.

It is well established that "writ review is appropriate when petitioner seeks relief from an order which may undermine a privilege." (Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, 686 [256 Cal.Rptr. 425] (attorney-client and work product privileges); see also Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5 [123 Cal.Rptr. 283, 538 P.2d 739] (tax return privilege); City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1464 [256 Cal.Rptr. 425] (official information privilege).)