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What is a writ petition?

Generally, an appeal follows a “judgment” or specified “appealable order,” which usually is the end of the case in the trial court. However, there may be other orders made in the trial court which are not “appealable.” These may be challenged in the Court of Appeal by a writ petition, most commonly a petition for writ of mandate. Examples of the types of orders which may be reviewed by writ petitions include discovery orders, orders denying demurrers or summary judgments, and orders denying motions to disqualify a judge.

A writ petition usually must be filed within a short and definite time frame after the order has been made. Depending on the type of order, there may be a statute which gives the deadline, such as 20 days. If there is no statutory deadline, the petition must be filed within a “reasonable time,” which varies according to the type of order. However, the outside limit usually is considered to be 60 days.

A writ petition is a very specialized pleading which is tantamount to an entire lawsuit in one package. It is the complaint, the evidence and legal argument all together. A writ petition can be denied “summarily” with an order that states simply: “The petition for writ of mandate is denied,” for procedural reasons alone. Therefore, even experienced attorneys who have handled “a few” appeals in their careers often seek out the assistance of appellate counsel for writ petitions.

A Court of Appeal generally considers writ petitions which seek to avert irreparable harm that cannot be remedied later on. Unless there is a statute which requires you to seek relief only by a writ petition, you need to convince the Court you have a real emergency, which requires the Justices to put aside all the appeals they are working on and pay attention to you. An appellate specialist can help determine if your case falls in this category and can best present your case in a way that will gain the attention of the justices.

Because the time frames in which to file a writ petition are very short, it is important you contact an appellate specialist as soon as you have an adverse ruling from the trial court you believe is in error. If you have an important hearing coming up which at which you anticipate the court may decide against you, you might want to contact the appellate attorney before the hearing to make sure the attorney will be available to handle your petition.

If you are going to contact our office to determine if we can assist you with a writ petition, we request that, before you call, you gather together (1) all the minute orders of the relevant Superior Court hearings, (2) conformed copies of the pleadings relating to the order you wish to challenge, and (3) a conformed copy of the order (if available). You also will need an expedited reporter’s transcript of the hearing. If time is short, at least order the transcript before you call. Please read rule 8.486 (b) of the California Rules of Court, concerning the documents required and what to do if you cannot get a transcript. Armed with the proper documents, we will be in the best position to “hit the ground running” and prepare the writ petition in the least possible time.