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California Writs
Jurisdiction of courts of appeal in common law writ proceedings. (Cal. Const., art. VI, § 10.)


1. Common Law Writs
In appellate practice, a writ is an order issued by a reviewing court to an inferior court ordering an inferior tribunal (usually the trial court) to do something or prohibiting it from doing something. (See Cal. Prac. Guide: Civ. Appeals & Writs, § 15:1.15.) The primary common law writs are certiorari or review (see Code Civ. Proc, §§ 1067, 1068), mandamus or mandate (see Code Civ. Proc., §§ 1084, 1085), and prohibition (see Code Civ. Proc., §§ 1102, 1103). In addition, the Legislature has authorized review of certain rulings by use of a "statutory writ." (See, e.g., Code Civ. Proc., § 170.3, subd.) Statutory writs are governed by specific statutes, which generally contain filing deadlines. (See, e.g., Code Civ. Proc., § 405.39 (20-day period to file petition for writ of mandate to obtain appellate review of order granting or denying motion to expunge a lis pendens).)

In general, common law writ review is a supplementary system for appellate review of nonappealable trial court rulings, which exists in addition to review by appeal. (Cal. Prac. Guide: Civ. Appeals & Writs, § 15:1.) Review by writ is extraordinary, equitable, and completely discretionary, and writ petitions are rarely granted. A writ is typically granted only when the party seeking the writ lacks any plain, speedy, and adequate remedy at law (see Code Civ. Proc., §§ 1068, 1086, 1103) and will thus suffer irreparable injury that cannot be remedied on appeal. (denial of motion to transfer from municipal court to superior court based on amount in controversy may be raised on appeal of final judgment, despite availability of interlocutory relief by way of writ petition.) In addition, the petitioner must have a beneficial interest in the lawsuit over and above the interest held in common with public. (See Code Civ. Proc., §§ 1069, 1086, 1103.) Additionally, courts may consider the following criteria: (1) the issue is of widespread interest or presents a significant and novel constitutional issue; (2) the trial court order deprived petitioner of an opportunity to present a substantial portion of petitioner's cause of action; (3) conflicting trial court interpretations of the law require a resolution; and (4) the trial court's order is clearly erroneous as a matter of law and substantially prejudices petitioner's case. The court has the authority to reverse its decision granting a writ, if it subsequently discovers that the underlying writ petition was defective.

There are usually at least three parties to a writ proceeding: the petitioner, the respondent, and the real party in interest. When the trial court is the respondent, it usually does not answer the petition; the party who prevailed in the trial court, that is, the real party in interest, responds to the petition.

2. Mandate
A writ of mandate may issue to correct an abuse of discretion by, or to enforce a nondiscretionary duty to act on the part of, a court or other official. Thus, it can be used to correct an abuse of discretion by the trial court, or to enforce a nondiscretionary duty to act on the part of the court, or the officers of a corporate or administrative agency. (See Code Civ. Proc., § 1085)
3. Prohibition
A writ of prohibition may issue to restrain a court, board, or other official exercising judicial functions from acting without, or in excess of, its jurisdiction. (See Code Civ. Proc., § 1102.) The writ of prohibition is an appropriate remedy to arrest the proceedings of a court or inferior tribunal when there is no plain, speedy, and adequate remedy in the ordinary course of the law and when the proceedings of the court or other inferior tribunal are without or in excess of its jurisdiction.
4. Certiorari
A writ of certiorari may issue to review completed judicial acts in excess of jurisdiction by a court, board, or other officer exercising judicial functions. (See Code Civ. Proc., §§ 1068, 1074.) Certiorari, like prohibition, is a "jurisdictional" writ. While it cannot be used to attack an error of a lower tribunal committed in the exercise of its jurisdiction, it is available to attack an error of a lower tribunal committed in the excess of its "jurisdiction." The meaning of jurisdiction for the purposes of certiorari is different and broader than the meaning of the same term when used in connection with "jurisdiction" over the person and subject matter. It seems well-settled that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct the excess.

There is a very circumscribed use of this writ. It is true that certiorari relates to an order that is in excess of the jurisdiction of the trial court. The writ is, however, used very rarely in California, and almost always in connection with contempt rulings, which are not otherwise subject to review. (See Code Civ. Proc., § 904.1, subd.(a)(1)(B).)

5. Alternative Writ Versus Peremptory Writ
Writs of mandate and prohibition may be either alternative of peremptory. An alternative writ of mandate commands the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause to the court at a time and place specified by court order why he or she has not done so. The peremptory writ of mandate is in a similar form, except that the words requiring the party to show cause why he or she has not done as commanded are omitted. (Code Civ. Proc., § 1087.)

Similarly, an alternative writ of prohibition commands the party to whom it is directed to desist or refrain from further proceedings in the action or matter specified until further order from the court, and to show cause to the court at a future time and place why the party should not be absolutely retrained from any further proceedings in the action or matter. The peremptory writ is in a similar form, except that the words requiring the party to show cause why he or she should not be absolutely restrained are omitted. (Code Civ. Proc., § 1104.)

The goal of all writ petitions is to obtain the peremptory writ. The peremptory writ is the final, usually one-page, order issued by the clerk of the court. there are two ways to obtain a peremptory writ.

The first is by petition for an alternative writ; the second is by petition for a peremptory writ in the first instance. A petition for a peremptory writ in the first instance is issued only where two factors are present: (1) the right to relief is obvious, and (2) an unusual urgency makes it necessary.

Once the petition is filed, there are several options available to the court. It may summarily deny the petition. If it does not do so, it has three options: (1) grant an alternative writ, (2) grant an order to show cause why a peremptory should not issue as prayed for in the petition, or (3) grant a peremptory writ in the first instance. An alternative writ of mandate commands the party to whom it is directed to do (or in the case of prohibition, to refrain from doing) an act required to be performed, or to show cause to the court at a time and place specified by the court why he or she has not done so. If the trial court complies with the prayer, the petition is moot and may be dismissed, making a response or "return" (see § 17.31)unnecessary. If, however, the party to whom the writ is directed elects not to perform the required act, but elects to show cause, the issued joined by the petition and the return must be decided by the court in a written opinion. Once the appellate court issues an alternative writ, or on OSC, the matter becomes a "cause," which requires a written opinion and cannot be constitutionally denied summarily.

An OSC differs in that the party to whom it is directed is not given the option of reconsidering its initial action and conforming with the prayer set forth in the petition. The appellate court is more likely to grant an OSC when it wants to address the underlying issue, which it would be unable to do if, in response to an alternative writ, the trial court conforms its action to the petitioner's request.

For illustrative forms of alternative writ, order to show cause, and peremptory writ, see §§ 17.42-17.44, respectively.

6. Request for Immediate Stay
A writ petition may include a request for an immediate stay of the proceedings in the lower court. For example, a stay would be appropriate if requesting a writ to challenge a discovery order that may involve the disclosure of information that would violate a privilege or a party's privacy rights. In that cause, it may be appropriate to request a stay of the lower court's order pending a decision on the writ petition.