What is a Writ & When Can it Be Applied During An Appeal?

Updated on April 21, 2022

What is a Writ ?

A writ can have many means.  Most commonly, in the context of an appeal, a writ is a request for emergency relief from the court of appeal from an order from the trial court which is otherwise normally not appealable  until the end of the case.  It is like an emergency appeal.  The Court of Appeals, however, is not required to substantively review writs. Put another way, the Court of Appeals has discretion whether or not to review a writ.

This is substantially different than an appeal, which a party can file as a matter of right. Indeed, according to multiple online sources, in California, the Court of Appeals only substantively considers about one out of ten writ petitions.

What is an Appeal?

The term “appeal” refers to an appellate court’s review of a final judgment, decision, or order of the lower court. To that end, an appeal is filed after the final judgment in a case.

But what happens if a trial court makes an error during litigation that is so substantial that it would leave the party without legal recourse and cause irreparable harm if not heard prior to judgment.

In California, in this situation, a party can resort to filing a “writ”. However, there are important details a party should know before pursuing a writ.

Statutory and Common Law Writs

There are two major authorities affording writ reviews: statutory writs (“Statutory Writ”) and writs under common law (“Common Law Writs”).

A Statutory Writ is a type of writ that the California Legislature has expressly authorized by statute. Examples of statutory writs include writs regarding the grant or denial of

(1) a motion to disqualify a judge (Code Civ. Proc. section 170.3),

(2) a motion to expunge a lis pendens (Code Civ. Proc. section 405.39),

(3) a motion to change venue (Code Civ. Proc. section 400), and

(4) a motion for summary judgment (Code Civ. Proc. section 473).

Alternatively, a party can file a Common Law Writ, for which the common law provides the authority.

Basic Types of Common Law Writs

In California, there are three basic types of Common Law Writs:

• Mandamus,
• Certiorari
• Prohibition.

The distinction of each lies with what the directive that the petitioning party seeks.

Specifically, a Writ of Mandamus requests that the Court of Appeals mandate that the Trial Court take an action.

A Writ of Certioari requests that the Court of Appeals determine whether a trial court exceeded its jurisdiction.

A Writ of Prohibition requests that the Court of Appeals prohibit a Trial Court from taking an action.

If you are involved in litigation and are considering obtaining pre-judgment appellate relief, you should consult with an attorney who has experience with writs. While writs are not always appropriate, they can be important mechanisms for avoiding irreparable harm.

Is a Writ Appropriate in Your Case?

The attorneys at Schorr Law have years of experience representing clients in real property matters, including matters related to writs. To that end, our Los Angeles real estate attorneys at Schorr Law will be able to help you determine if writs would be appropriate, what type of writs are appropriate, and other important details regarding petitioning for the writ. However, due to the time-sensitive nature of writs, if you believe one may be appropriate in your case, you should immediately contact an attorney for a consultation. Contact Schorr Law to schedule a consultation today!

Got questions about real estate appeals and how they can affect you? Call (310) 954-1877 to schedule a consult with a Los Angeles real estate appeal attorney.

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• Writs of Attachment Against Non-California Residents