Understanding Civil Writs: An Introduction

Hon. Thomas Fay 0:00

You can read from their prose the outrage. Even if they're not using all the adjectives, all the adverbs, you can read the outrage. You can feel that sense of it. And I think you want to avoid that because it's important to remember that everybody who's on the Court of Appeal, all the justices of the Court of Appeal, spent time as trial judges.

Announcer 0:16

Welcome to the California Appellate Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Tim Kowal 0:30

Welcome everyone. I am Jeff Lewis. And I'm Tim Cowall, and we're going to be talking about writs today. This will be an evergreen episode, so you'll want to bookmark this one for next time you're drafting a writ petition and trying to remember all the ways it's different from a regular appeal and all the different ways it's going to be summarily denied for a bad reason. You know, even righteous writs are summarily denied. But for today's guest, we invited Tom Fay, the lead civil writs attorney for the California Court of Appeal District Division III. But instead, we got Judge Tom Fay, who effective June 29, 2026, now serves as a judge in the Orange County Superior Court. Although Judge Fay will tell us that he's not yet been sworn in, or if the if the term is investiture, or if that's only in federal courts. But at any rate, uh according to uh Ben Schatz's blog, which I take to be authoritative, is uh effective uh June 29th. He is now a judge of the Orange County Superior Court. Tom Fay previously served as lead appellate attorney at the 4th District Division III. Since 2023, he served as senior research attorney in the chambers of Judges David Thompson and Maurice Sanchez. And we're going to be talking about his experience as lead civil writs attorney because that panel, I think, cycles out about uh every month. Am I right, Judge Faye?

Hon. Thomas Fay 1:46

Quarterly, quarterly. Quarterly. First of all, let me just say longtime listener, first time caller, it's great to be on here. I'm a big fan.

Tim Kowal 1:53

I'm glad we caught you as as Judge Fay. And uh because now you've just heightened the uh the pedigree of the podcast. I

Introduction to Writs and the Guest's Background

Tim Kowal 2:00

appreciate you coming on.

Hon. Thomas Fay 2:01

I had to ask about three other people to get permission to make sure that this was still okay to do. But I did, so we're good.

Tim Kowal 2:06

All right, good. Well that I guess that that speaks well of either you or us, probably you. So I just learned of that appointment yesterday reading Ben Shat's blog, which he had posted on Friday, and I gather uh before we hit the the big red record button, that's basically when you found out as well as uh Friday.

Hon. Thomas Fay 2:22

Yeah, well, just about. Friday is when the announcement went out, as is the uh the practice. I got a call a couple days earlier, but I was sworn to secrecy until the governor announced it. So you found out about the same time everybody else did at 4 30 or so on a Friday, which is good because uh it would have been very difficult for me to continue keeping that secret over the weekend.

Tim Kowal 2:40

So I should let our listeners know when I we're recording this on June 30th, so this all happened just late June. So congratulations, and what was uh that process like? Is a they say a federal judge is a lawyer who knows a senator. What was your connection? Are you a a lawyer who knows uh who knows a governor?

Hon. Thomas Fay 2:56

Well, no, I don't have any connection to Governor Newsom. Well, I didn't, I guess now I technically do in some sense, but in the sense that he appointed me. The process is you've you put in your application, you fill out a very long form, you go through a long series of interviews, you wait a long, long time, often without hearing anything, and you hope. And uh eventually, if you're lucky and if the stars align, somebody happens to retire at the right time, there's a vacancy, and so on and so forth, and your application catches the eye of somebody whose opinion matters. And I'm not totally sure how that happened. In my case, I sort of put myself out there and thought maybe I could do this, and somebody agreed with me. So great, I'm gonna take it, I'm gonna do my very best. We'll see how it goes.

Tim Kowal 3:38

Aaron Powell Well, and as someone who has been a long time appellate attorney and a research attorney at the Court of Appeal, I wonder if you were ever turned off of the idea of becoming a judge dealing with all these attorneys who are always trying to reverse you trial judges.

Hon. Thomas Fay 3:52

I always looked at it as everything we do at the Court of Appeal, almost all of the time the trial court's getting right. So I always thought saw it as, okay, they're doing a good job. This is a bunch of smart people. It would be great to be one of them to join their ranks, and that was part of the idea there. And then of course, if you do get reversed, make a mistake, you learn something new. That's the way I always looked at it. If, you know, and I know not everybody sees it that way, but that's just that's just my personal thing about it. And by the way, it's great to have a backstop of three really smart people plus their research attorneys to double check your work. So hard to disagree with that in my mind. But again, not everybody sees it that way. Was the bench always your goal? Not exclusively and not always, always. I sort of saw that as a it seemed like a reasonable career track at some point while I was working here. I thought, well, this kind of makes sense. I do have, I should disclose that my grandfather was a judge in Orange County Superior Court many, many years ago. And so there was that always to sort of like, well, I could maybe do what he did. But like I told the appointment secretary, I didn't really allow myself to hope too much until I finally got the call, and then I didn't know what to do. So here I am.

Tim Kowal 4:56

And what will you take from your court of court of appeal experience to the trial court bench?

Hon. Thomas Fay 5:01

I'll tell you one thing. If I'm on a civil if I'm ever on the civil panel, I'm gonna make sure when I end a case to end it with a judgment. So that I don't have some freestanding order granting summary judgment or order sustaining a demur without being assigned order of dismissal out there where I'm not di nobody's sure the case is over. I'm gonna make sure my cases end in judgments.

Tim Kowal 5:24

On the civil bank. Yeah. You've been a success if the Court of Appeal never issues an OSC asking the attorneys to go back down to the trial to Judge Faye to get Judge Faye to sign a judgment.

Hon. Thomas Fay 5:34

If that happens to me, shame on me, because I've

A Day in the Life of a Writs Attorney

Hon. Thomas Fay 5:38

I've done I've done a number of those myself. So yeah.

Jeff Lewis 5:41

We'll we'll have you back on the podcast to discuss that.

Hon. Thomas Fay 5:44

Yeah.

Tim Kowal 5:44

Sure. Okay, so let's uh let's talk about writs. Then we'll get to eventually we want our audience to be comfortable enough with writs after hearing this conversation that maybe we can even ask you, Judge Faye, uh, if one of the litigants before you needs to take you on up on a writ, what's their best chance of being successful? But before we get into the in into the nuts and bolts, let's set the stage. Give us a sense of a day in the life as a lead writz attorney, as someone different from the writs panel, different from one of the justices. You as a, I guess, as a now former writz attorney, what is a day in the life processing all these writs that come in, including hot writs, some statutory, where this is their only way of getting appellate uh relief, and some asking for relief that day or that week, right? What is that like for you?

Hon. Thomas Fay 6:30

So a big part of the job is triage right up front, right? You have to figure out, okay, as they come in, which of these need a response right now, I mean today or tomorrow, which can wait for the weekly or mostly weekly RIT conference, and which can go sort of deeper in the queue. They can wait a couple weeks maybe if we get busy, that sort of thing. Triage is a big part of the job, big part of the job right up front. And so we're constantly looking at, okay, what's the next hearing date, what's the nature of the relief requested, what's the the stay date requested, and what's going to happen if we don't grant a stay today, tomorrow, whenever, right? That's sort of the first thing I'm always looking for when we get a writ petition in the door. And I think that's that's universally across the writ staff. That's kind of the front of mind consideration.

Tim Kowal 7:14

Aaron Powell And can you tell that triage information just by looking at the cover page if the attorney has done it right by identifying immediate stay requested by X date, otherwise this bad thing's gonna happen?

Hon. Thomas Fay 7:25

Well, you're supposed to be able to, yes. But the issue there is so what I start there, right? I always start with what both on the front page and I look at the prayer for relief as well. What do they want stayed and when do they need it stayed by, right? Those two things. And then even at the triage triage stage, I look at why. What do you need this stayed right now? And it often doesn't take too long to work through that process of okay, what's the next state they need stayed? Why do they need it stayed? And you can usually, if there's a real, if there's real irreparable harm, we'll get to what that is. There's real case for a writ here. It's usually reasonably clear in within the first few minutes of looking at the writ petition, if there's a case for relief here, we're gonna have to move expeditiously. You you can tell pretty, pretty straightforwardly most of the time.

Tim Kowal 8:07

Okay. And then when you're when you're getting the writ petitions that say immediate stay requested by like tomorrow. Are you looking at that and saying, you scoundrel, you waited on this one, you're making me brew an extra pot of coffee and uh burn the midnight oil on this one? What's your take on those that are emergencies as of that day or or uh tomorrow?

Hon. Thomas Fay 8:27

Aaron Ross Powell, I enjoy that part of the job candidly, and so it doesn't bother me exactly. I will say that I think generally the law and and the Ritz panel and the Ritz staff look skeptically, would would look skeptically on a RIT petition that says, I need to stay by tomorrow of an order that was issued 59 days ago. That happens. And so that doesn't mean necessarily won't grant relief, but it does mean the way I always frame it to people is if you're telling me it's an emergency, I'm expecting you to treat it as an emergency as well, right? So if you need something by tomorrow, that order should come down maybe last week at the absolute earliest. And then of course, this is my little practice tip that I've been giving to people that I've started seeing pop up more, which is good, which is when you do have a writ where you're asking for really quick relief, uh, especially same day type relief, and you're gonna get the repetition in in the afternoon, don't wait, you don't have to wait until the repetition's filed. Call our clerks, give us a heads up. A repetition is coming, a hot repetition is coming. We're gonna we're gonna be asking for an immediate stay. And that helps us because on our end, we need three different groups of people to be able to issue you writ relief, right? One is we need a panel of three justices, we need a writ attorney to look at it in the first instance and make a recommendation. I guess in theory, that's sort of superfluous to the writ panel itself, but you get the idea. And then, of course, we also need a clerk potentially to stay late to make sure the order gets filed properly. And if we get a call in advance, say 2 30, 3 30, whenever, we can set that up and be ready for your hot repetition to come in, and then we can turn it around and grant relief or not as appropriate as quickly as you would want us to. It's much harder to do that if we don't have that advanced notice and the repetition comes in at 4:30, 5 o'clock, 5 30. Much harder for us to round up all the people we need

Emergency Writs and Triage Process

Hon. Thomas Fay 10:16

to give you the relief you want.

Tim Kowal 10:17

So when you say call the clerk early, you're talking about the same day and it just at some point before the office starts winding down.

Hon. Thomas Fay 10:25

That's the idea. Yes, that's the idea. It helps, we don't mind anytime. If you want to, if it's for something that's a day or two out, also fine. But the main practice pointer in my mind is especially for the same day stuff, give us a heads up. That way we can make sure we have the whole chain ready to work through your petition as fast as you need it.

Tim Kowal 10:43

Yeah. Yeah, I was recently working on an emergency writ petition, and I I was caught with this conundrum of look, we're going to be asking for relief by like the end of that week, and it was uh or like Thursday, and it was Monday, and I thought this we really need to elevate the quality of the writ. And so I can't get if I put it out Monday, which I could I technically could, it would give the writ panel an extra day, but I really need to get it elevated to a higher level of quality so we push it out another day. Do you have any advice for attorneys who are in that conundrum trying to figure out do I rush this out the door because it's an emergency nature and the writs panel will understand that look, this is not our best work, but it's uh under a time crunch?

Hon. Thomas Fay 11:22

I think I would give sort of an it depends answer, a very lawyerly it depends answer. Basically, you're caught between two competing considerations, right? One is you want to have the best work product possible. You want to give the best arguments you can in the most convincing way possible, of course. And that takes time to do. On the flip side, you don't want to wait so long that the writ panel doesn't have time to consider it in a complete and deep, thorough sort of way before it decides whether or not to give you an immediate stay. But what I can say is if you get your writ petition in a full day, two full days before the stay you're asking for, you're gonna get a complete, pretty full workup of what you've got. So in your example, if the thing you need stayed is on Thursday, and you're on Monday and you're thinking, man, I could file this today, but it's kind of junky, and I would like to get, I'd like to really refine this and file it Tuesday. My suggestion to you, and again, this is my opinion, I should have caveated this at the outset. Any opinions I'm giving here are mine, not the Court of Appeals, not the justices, and so on. But my suggestion would be you can take that extra day to the Tuesday. We can get you an answer. We're good at working these things up in in short time, such that 24 hours, 48 hours is is enough. We can handle that.

Tim Kowal 12:29

Yeah, we we did take the extra day and uh we wound up having to file it like right the day before the bad thing was gonna happen. And uh the second division thoroughly read and digested all 50 pages of our dense legal arguments and summarily denied.

Hon. Thomas Fay 12:43

So how it goes.

Tim Kowal 12:45

That's how it goes. Do you have any advice for attorneys who are getting that summary denial after filing a writ petition where you're you're righteous on the law, you think you this really is going to render the appeal moot, we're gonna have no other relief, and it's summarily denied. Does the court just disagree that no, this don't worry, it's not really moot. We can still give you relief later on the direct appeal, or is it just no, your arguments are just not likely to prevail?

Hon. Thomas Fay 13:11

You know it's inscrutable, though. Summary denials are inscrutable, sort of by design. The thing to remember, of course, is a summary denial of a repetition in the court of appeal, it means your repetition is denied, and that's all it means. It doesn't mean that your arguments were wrong. It doesn't mean that you shouldn't raise them again in the appeal itself and the prefix on the appeal itself. It doesn't mean even that the court of that the panel disagreed with you, or even that you'd have the same panel on the appeal itself. It might mean, for example, you're not going to know this from the summary denial, it's just the nature of the beast. It might mean your writ petition was untimely for some reason. It might mean that there was a procedural problem with it that the court decided couldn't be fixed in time. It might mean the court disagreed with you on the merits. It might also mean the court felt that actually there's no irreparable harm here. We're content to wait for an appeal. It could mean any of those things or all of them at once. There's no way to know. And it's important to remember also that writ relief in the court of appeal is essentially always discretionary. So it's not the sort of situation where you're gonna get, as you would at the end of an appeal, a full reasoned opinion that's gonna tell you, here's exactly where we depart from your reasoning counsel. Instead, you get, well, you lose on this writ petition. It doesn't mean anything for the future, and we're not gonna tell you why, because we don't have time for that. Which I understand, have uh having been a private practitioner, having filed repetitions in this court and in other courts, and having gotten the one-liner denial and thrown on my hands and thought, what are you thinking? Uh I understand the frustration, uh, but that's the way that our courts operate. Uh it's it's it's standard practice for a bunch of good reasons. Uh and as frustrating as it is, I don't suspect it's likely to change.

Jeff Lewis 14:45

So, Your Honor, it's okay to be devastated, but don't be completely crushed. Just be slightly disappointed, but not, you know. Let me ask you though. Sometimes we get writ orders that say denied, and sometimes we get writ orders that says denied, petition has an adequate remedy at law or something. Is there any rhyme or reason to when the court decides to add a second sentence?

Hon. Thomas Fay 15:06

That's done at different times for different reasons. And different justices have different philosophies about when and why to do that. It is done, I will say this, it's at least in our court, in my experience, it's done intentionally. If there's something added, if there's some extra sentence there, that was done intentionally in your case, specific to your case. It's not typically, at least on the civil side, it's not a form order that's gonna say that. The form says your request is denied, and that's it. So if there's extra language there, it's very likely to be specific to your case. Now, as I said before, different justices have different reasons why they might do that. Sometimes they're trying to educate the parties about, hey, maybe you want to raise this argument again on appeal. Sometimes they're trying to let the trial judge know something about this the posture of the case or something similar to that. It just depends. And like I said before, every justice approaches that question differently. Some prefer as much as possible, always, always, always summary denials, and some justices want to say something more a lot more frequently. So I can't really say more anything more specific about that, other than you can't read too much into silence, if if that makes sense, right? The the one-liner denial, don't read anything into that. But if there is something written specific in your order beyond that one-liner denial, there's a reason it's there.

Tim Kowal 16:16

I don't have enough of a sample size to draw any conclusions about what the Court of Appeal might be trying to communicate and to whom. Is it to the litigants? Is it to the trial judge? The one that I got somewhat recently was a summary denial, and it said something to the effect it was in a probate matter, and it was something to do with the Guardian Adlitum actions that uh that were being challenged. And the speaking denial said something to the effect of irreparable harm not established on this record, which we took to be kind of like not yet, but we're watching. Come back to us if something else happens.

Hon. Thomas Fay 16:48

I can't speak to any particular case. Obviously, I don't know if even if that case was in our court, uh, but what I can say is that sounds to me like a plausible reading of that order. And it seems like if that stuff was added there, again, not knowing the case, not knowing anything about it beyond that, it sounds like the court is saying different facts later we might come to a different conclusion.

Tim Kowal 17:07

Yeah. So a panel might be minded to signal that we find the legal issue potentially interesting. We just don't think this is there's a good vehicle for us yet.

Hon. Thomas Fay 17:18

Right. And in the instance you're talking about, the specific language that you're describing, and again, I don't know any any details of this particular And I'm only roughly paraphrasing the language. Right, right. But the specific sentence you're describing, it's no irreparable harm yet. It almost sounds to me like the court is thinking some facts might change between now and some future date. And at that time,

Drafting Effective Writ Petitions

Hon. Thomas Fay 17:38

we might perceive there to be irreparable harm. So don't be dissuaded from maybe filing a subsequent writ petition. That might be the sort of thing that the panel was thinking. I don't know, obviously. And uh if I did know, I couldn't say.

Tim Kowal 17:49

So Do you have any advice for uh for the attorneys who are drafting a writ petition? What mood or what state of mind should the attorney be in? Like high urgency, high alert, or very cool and clinical? I mean, is that the needle uh that you have to thread?

Hon. Thomas Fay 18:04

I think so. There you need sort of both pieces, right? You you need to be cool and clinical on the legal issues. You need to be clear-minded about there is an actual legal error here, right? And you also need to be clear-minded about in most cases, you need to be thinking there is irreparable harm here. My client is gonna have some kind of unfixable, unremediable problem that is significant and that won't be solved by an appeal. I can't avoid it any other way. Most of the time it's gonna need to be urgent as well. So, all of those, you need all those components. You need to convey to the court a certain level of urgency, a certain level of it's an emergent condition, it's a situation that can't be resolved. The trial court has left us with no other options, and I'm I'm not gonna be able to fix this on appeal from the final judgment. So help me out. But also, here is a well-reasoned, clear-minded set of legal reasons why there's an error here. And you of course want to avoid, as you would in any appellate briefing, the emotional castigation of the trial court, right? The writing where you're saying, I can't understand why this trial judge did this, it's crazy. We don't need that. That's not necessary. Just say the trial judge made a mistake, here's what it is, can't fix it, and it's irreparable harm. My repetition's timely. You gotta do something about this. That's the best, in my mind at least, that's the best kind of repetition, the most likely to prevail.

Jeff Lewis 19:18

Do you often see writ petitions or briefs, merits briefs, where uh lawyers are actually taking pot shots at the trial council or trial judge?

Hon. Thomas Fay 19:26

It happens. It does happen. And I can understand to a certain extent, so sometimes you can see and a lot of people they don't get all the way there, but you can read from their prose the outrage, even if they're not using all the adjectives, all the adverbs, you can read the outrage that you can feel that sense of it. And I think you want to avoid that because it's important to remember that everybody who's on the court of appeal, all the justices of the court of appeal, spent time as trial judges. They understand the trial judge's job intimately, and they have a lot of respect for the trial judges that they are reviewing. So it doesn't do you a ton of good to have your brief contain this tone of how could this crazy person do this? Instead, again, the optimal brief is look, the trial judge made a mistake, and this is the right answer. And you don't even get into necessarily why that mistake was made or what could have motivated. We don't care about that. Just that

Understanding Court Rules and Petitions

Hon. Thomas Fay 20:17

there was a mistake made. The law requires a different result here. My client will suffer irreparable harm if it's not fixed. I don't have enough for some reason, an appeal won't work. Help me out. Like I said, that's the best approach. You do sometimes see, and we we have occasionally had to hear it one-off type situations where we've had to issue OSC race sanctions because of how intemperate the language was in one of these briefs. But that's not the majority of it. It's those in-between ones where I think the council doesn't do themselves any favors.

Jeff Lewis 20:43

III see.

Tim Kowal 20:43

So that

Decoding Court Notices and Their Implications

Tim Kowal 20:44

wraps up part one of our conversation with Judge Tom Fay. In the second half of our interview, we go from strategy to mechanics, exactly what rule of court 8.486 requires in your petition as a nuts and bolts matter, why the words stay requested in all caps and bold underlining and everything can save your client's case, and how to read the tea leaves when the court issues a Palma notice versus an alternative writ versus an order to show cause. What's really the difference between those three things? And whether supersedious is really a writ at all or just a motion for stay with an intimidating name. If you'll want to clip and save part two as well. See you then.

Announcer 21:26

You have just listened to the California Appellate Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts, and other episodes, visit the California Appellate Law Podcast website at CAL Podcast.com. That's C A L Podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening, and please join us again.