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Copyright and Trademark Notice | Disclaimer | Revised: 5/16/98
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 the discussion in 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. To illustrate the process, I have included material from various writ proceedings in which I have been involved.
I have converted a complete writ petition to portable document format (.pdf). It is available here. You can read and print PDF documents from any computer equipped with Acrobat Reader ® software. You may download Acrobat Reader ® for free from Adobe Systems.
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:
See Explain Why Writ Review Is Appropriate for further information about what makes a case suitable for writ review.
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. They are available on-line. See the Local Rules of Court section of Appellate Counsellor WWW Legal Resources.
Finally, 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.
California Rule of Court 56 requires that a writ petition be accompanied by:
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.
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 yours 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 my writ petition in County of Los Angeles v. Superior Court (Cordova):
Patricia Cordova, the original plaintiff in this sexual harassment lawsuit, alleged federal and state causes of action based on supposed mistreatment during her employment as a Los Angeles County Deputy Sheriff. Her complaint included a claim for emotional distress damages. Plaintiff died in a car accident while defendants’ summary judgment motion was pending. The Superior Court asked the parties to brief the issue of what claims for damages survived plaintiff’s death. It then denied summary judgment, granted summary adjudication with respect to some issues, and ruled that plaintiff’s representative could pursue the claim for emotional distress damages at trial.
The Superior Court’s ruling flies in the face of Code of Civil Procedure section 377.34, which provides that the damages available in a survival action "do not include damages for pain, suffering, or disfigurement." The Superior Court may have intended to limit its ruling to the federal cause of action under 42 U.S.C. sec. 1983. However, a very recent decision from the Court of Appeal has made clear that section 377.24’s limitation does apply to claims for damages under section 1983. (Garcia v. Superior Court (1996) 42 Cal.App.4th 177.)
Petitioners County of Los Angeles, Sheriff Block, and Deputy Ron Boudreaux seek a writ directing the Superior Court to vacate its order, and enter a new order precluding plaintiff’s representative from pursuing any claim for emotional distress damages.
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. Here is an excerpt from the explanation provided in the writ petition that I filed in County of Los Angeles v. Superior Court (Cordova):
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., § 437c, subd. (l).) Unless this Court grants their petition, petitioners will be denied the benefits of the summary judgment procedure. They 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 with respect to the availability of emotional distress damages. Petitioners have no adequate remedy other than a writ.
The issue of emotional distress damages was appropriately determined as part of the summary judgment proceedings. An emotional distress claim is a "claim for damages," for which section 437c, subdivision (f)(1) authorizes a grant of summary adjudication. Alternatively, the procedure may be characterized as a motion in limine, or a motion to strike under Code of Civil Procedure section 436. (See Macy’s California, Inc. v. Superior Court (1995) 41 Cal.App.4th 744, 746, fn. 2 [48 Cal.Rptr.2d 496].) However one characterizes the procedure, it is appropriate for this Court to review the Superior Court’s decision in this writ proceeding. Unless this Court grants relief, defendants will have to devote substantial time and expense in discovery and trial preparation with respect to the emotional distress claim, even though the claim is without merit.
I have provided a page of authorities to support issuance of a writ in several common situations.
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.
Here is a request for stay from my writ petition in County of Los Angeles v. Superior Court (Gittisarn):
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 like this one, which was issued in response to my request.
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.
Here are the first few paragraphs from the formal "petition" that I filed in County of Los Angeles v. Superior Court (Cordova):
By this verified Petition, Petitioners show:
1. Plaintiff Patricia Cordova commenced this action by filing her Complaint for damages on October 12, 1993.
2. On February 8, 1994, the Superior Court sustained defendants’ demurrer to the original complaint, and granted plaintiff leave to replead in certain respects.
3. On March 8, 1994, plaintiff filed her "First Amended Complaint for Damages." A true and correct copy of that complaint is included as Exhibit 1 in the separately bound volumes of exhibits that accompany this Petition.
4. On July 18, 1994, defendants filed their "Answer to First Amended Complaint for Damages." A true and correct copy of that answer is included as Exhibit 2 in the separately bound volumes of exhibits that accompany this Petition.
5. On July 6, 1995, defendants filed their motion for summary judgment, or, in the alternative, summary adjudication of issues. True and correct copies of the following papers submitted in support of that motion are included in the separately bound volumes of exhibits that accompany this Petition: (i) "Notice of Motion and Motion for Summary Adjudication of Issues" (Exhibit 3); (ii) "Separate Statement of Undisputed Facts and Supporting Evidence on Motion for Summary Adjudication of Issues" (Exhibit 4); (iii) "Declaration of Nohemi Gutierrez Ferguson in Support of Motion for Summary Adjudication of Issues" (Exhibit 5).
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 sytle in materials that you submit to them. You may purchase both the California Style Manual and the Bluebook at the Appellate Counsellor Bookstore.
In developing your writing style, follow these maxims drawn from Strunk and White's The Elements of Style:
The original 1918 version of Strunk's classic little book is available in HTML format. You may purchase White's revision and extrapolation of the book at the Appellate Counsellor Bookstore.
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.
The alternative writ issued by the court of appeal in County of Los Angeles v. Superior Court (Cordova) looked like this.
Parties filing writ petitions in Division One of the Fourth District Court of Appeal (San Diego) must be aware that the court does not accept petitions that seek alternative writs. Petitioners should request only a peremptory writ in the first instance. Rule 3, 4th Dist. Ct. App.
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 to respond to your petition in writing. The alternative writ will also usually provide an opportunity for you to file a written reply. If it does not provide for such an opportunity, you should file a proposed reply along with a request for permission to file it. The following are authorities for such a request: Scott v. Superior Court (1928) 205 Cal. 525 [271 P. 906]; Lotus Car Ltd. v. Municipal Court (1968) 263 Cal.App.2d 264 [69 Cal.Rptr. 384]; CEB, California Civil Writ Practice (1987) sec. 10.35; 8 Bernard Witkin, California Procedure (3d ed. 1985) Extraordinary Writs, sec. 182.
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.
Here is a decision granting a peremptory writ from a proceeding that I handled, entitled Cedarwood-Young Co. v. Superior Court.
As befits a World Wide Web page, this exploration of the Road to a Writ of Mandate has been succinct. For a more comprehensive treatment of the subject, you should consult one of the following treatises:
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