Introduction to Writ Practice

Hon. Thomas Fay 0:03

Ask for a stay on something very time-sensitive, and for whatever reason, we don't get to it in time. That's what keeps me up at night.

Announcer 0:15

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 to the California Appellate Law Podcast. I'm Tim Cowal, and welcome to the second half of our conversation with Judge Tom Fay, who until July 2026 was lead writs attorney processing your writ petitions at the California Court of Appeal in Orange County. He promises not to hold it against you if you use these tips in taking a writ on one of his future orders. In part

Understanding Technical Requirements of Writ Petitions

Tim Kowal 0:51

one, we had covered the strategy and psychology of writ practice, how the court triages petitions the moment they arrive, what emergency filings actually require of the panel,

Drafting Effective Writ Petitions

Tim Kowal 1:00

what a summary denial does and does not mean, and how to calibrate the tone of your petition so it reads as urgent without sounding unhinged. If you have not listened to part one yet, go back. It is worth your time. Today we're going procedural, the technical requirements of a writ petition, the difference between a Palma notice, an alternative writ, and in order to show cause, and what each signals about where the panel is leaning. And supercedious, the motion for stay that insists on calling itself a petition. Enjoy part two of our discussion on writ practice with Judge Tom Fay. Judge Fay, you recently gave a presentation to the Orange County Bar Association appellate section on demystifying the writ procedure. And you covered the basic elements of a writ. The petitioner must show irreparable injury and the absence of an adequate remedy of law, typically adequate remedy of law being why don't you just wait for a judgment and file a direct appeal? And that's normally deemed to be an adequate remedy of law. Most attorneys know that monetary loss is not typically irreparable because you can all money is fungible whether it uh comes

Understanding Irreparable Injury in Trials

Tim Kowal 2:01

now or later. That's just legal relief. And uh no, we're not going to bend over backwards to give it to you now. But another one that tell me if this one is is as rigid. A trial does not generally meet the definition of irreparable injury. A trial does not ordinarily mean irreparable injury, but in some cases it can be. There's uh there's uh room for room for lawyerly argument there.

Hon. Thomas Fay 2:25

Uh how do you how do you rate that one? There's two things to be said about that. First is there's sort of a there's a tricky little distinction here, which is the two different types of trial as irreparable injury situations. One is I lost my summary judgment motion. I lost my demur. I lost my motion for judgment on the pleadings. Now I'm gonna have to try this case. And I should have won. My motion my motion for summary judgment was totally righteous. The ruling is crazy, it doesn't make any sense. And now we're gonna have this trial. Here's where so step in, Court of Appeal, just just rid me of this problem. The judicial attitude toward that in general is you're gonna win anyway at trial. If your motion for summary judgment is really that righteous, you're very, very likely gonna win anyway at trial. Or maybe you'll settle before that also is possible. And so the fact that you have to try this case isn't enough for us to deem that irreparable harm. Now, I know I spent time as a civil litigator, as a private practitioner, that trials are painful. They are expensive, they are complicated, and they are unpredictable. And so I know there is a disconnect between what the cases say and the judicial attitudes about that and the reality on the ground. But that is the rule that we generally apply. Now, there is some wiggle room on that, as I'll get to in a second, but there's a second type of trial as a reparable injury situation. And that is where it is clear from whatever order you're taking a writ petition to challenge, that the trial court is gonna apply the wrong set of rules, the wrong set of legal standards, such that the trial is just going to waste everybody's time, that it is impossible, that you're just not gonna get a coherent result out of the trial. Whoever appeals is gonna get a reversal. That kind of situation, you'll see cases that say a claim that is unrecognized at law is an irreparable injury. You'll see that. In that situation, you'll get more traction, typically. And those are very difficult to parse. It's a very fine distinction, but that's one way we look at it. The second wiggle room, point of wiggle room here is a trial isn't a trial, right? Every trial's a little different, but the big distinction is between, hey, I've got a two-day, three-day, five-day trial on pretty straightforward issues surrounding a case of a type that everybody's familiar with, versus I have a trial that is gonna consume six months of courtroom time in the complex department, right? And there's gonna be 15 lawyers in the room from 15 different parties, and we're gonna spend eight figures to try this thing.

The Role of Monetary Harm in Legal Proceedings

Hon. Thomas Fay 4:42

And and we could avoid all of that if you would just grant this writ petition. In those situations, the writ panel is gonna listen. They're gonna sit up and listen. And in at least in my experience, it's all different for every justice, but that's gonna get get a lot more traction than saying my summary judgment motion shouldn't be granted. I don't want to defend this premises liability case, not to pick one out, but it's the point is the issues are straightforward and well understood. I don't want to try this case. It's gonna take me two or three days to get a defense verdict. Just give me my summary judgment motion. That's not gonna move the needle. The other type of thing will.

Tim Kowal 5:12

Does that analysis bleed into the uh money is typically not grounds for irreparable harm? If hey, uh uh Your Honor, you have to take into consideration the burn rate for all of the attorneys who are gonna have to show up at this trial. And then that turns into, well, now that's a that's a money question. And is this a really well-heeled litigant, in which case, well, the burn rate's not proportionally that great, whereas if this is a uh an individual litigant who's paying an attorney out of pocket on a fixed income, that's a different thing, even though the absolute dollar figure is much less.

Hon. Thomas Fay 5:42

Again, in my experience, different justices have different approaches to this question. And it's absolutely true that at least for some justices, all those factors matter. And again, rare relief always discretionary. So if there's another one I should add in there, which is on the subject of monetary harm, which is the question of is it actually plausible that you will recover this at the end of the case? Imagine that the order requires you to hand over a substantial sum of money to a litigant who has a stated intent to abscond with it, right? And never appear again and has no ties to the community, and so on and so forth. In that situation, you might plausibly argue, look, normally you're right. Normally we presume monetary loss is not irreparable because I can always get the money back. But not if the person is gone and there's no way for me to get at their get at their assets because they don't have any, that sort of situation. That kind of argument can work. Not every justice, I think, sees it as cleanly as that. They all have different sort of lines and philosophies about that, but there is always some wiggle room on that. In

Discretionary Nature of Writ Relief

Hon. Thomas Fay 6:36

part, it's about couching your argument in those terms and understanding it's not enough to say, well, this is a really big number. You gotta say this is gonna be unfixable. I'm gonna be coming back here on appeal and you're gonna be writing an opinion that says, well, darn, we really would love to help you, but it's too late now. That's what really motivates people most of the time, in my experience at least.

Tim Kowal 6:53

Aaron Powell So is it fair to say to always start with the presumption that monetary relief or other legal relief is going to be adequate, but look for ways that you can defeat that presumption on your particular record.

Hon. Thomas Fay 7:04

Aaron Powell Absolutely. I think that's I think that's a fair way to put it.

Tim Kowal 7:06

Aaron Powell Okay. So the so the basic elements again, irreparable injury, absence of uh adequate remedy of law. But then the other one that's just kind of the invisible element is that writ relief is always discretionary. So you mentioned earlier that you might be dead to rights on the law, you might really show mootness or irreparable harm, but waited until day 59 to file this, and you're asking for relief tomorrow. You might just not meet that discretionary prong and you're you're turning the panel off.

Hon. Thomas Fay 7:32

I think that's true. Uh but I think it doesn't, at least in my experience, it doesn't show up quite that starkly where the panel might I cannot remember, for example, an instance in which the panel said, What? These guys are absolutely right on the law. They're absolutely timely relative to the statutory or common law deadlines, and they've demonstrated a quite convincing case for irreparable harm. But you know, they really it's it's a holiday weekend, they really inconvenienced us, so no. No, that doesn't happen. It's almost like a credibility thing, right? If you come to us and you're saying because we only we only know the little sliver of the case that we get from your petition and your exhibits. We don't know the whole background. We know much less even than the trial court knows, and of course the trial court knows much less about the situation than the litigants and the attorneys do. So from that little sliver, we're trying to determine is this really urgent? Is this really irreparable harm that the parties are going to

The Importance of Timeliness in Legal Petitions

Hon. Thomas Fay 8:26

suffer? And in those sort of maybe it is, maybe it isn't cases, if you've waited 59 days, that is gonna suggest to us that maybe this isn't quite as big of an emergency as you're making it out.

Tim Kowal 8:36

The optics of your own actions as the attorney or the litigant can can play into your your urgency argument.

Hon. Thomas Fay 8:42

Aaron Powell That's right. I think economists call that revealed preferences, right? You can say it's important and it's really urgent. Because the attorney, I should say. If you've been thinking, I got some meat and confurs to write, I'll get to this repetition when I get to it. That tells me maybe it's not so urgent. Yeah.

Jeff Lewis 8:55

Your Honor, that makes a lot of sense to me on common law writs with a 60-day deadline. With statutory writs with much shorter deadlines, does the Court of Appeal take negative inference if you wait till day 19 as opposed to day 10 out of 20?

Hon. Thomas Fay 9:09

Not really. I mean, really what we're talking about is mostly the common law writs, at least in my experience. Well, this is again the way I look at it personally. As you say, the statutory writs almost always have a 10 or 20-day deadline. And from my experience in private practice working on those, it's always a scramble getting those out the door just within the 10 or 20 days. And so I don't think anybody is going to say, well, if you were three days earlier, that might have made a huge difference. Unless there's something practical, specific to your case about that that suggests some practical specific circumstance. But just relative to the deadline, mostly what we're talking about when we say, wow, why did you wait so long is the 59-day wait on a 60-day common law rate?

Tim Kowal 9:47

Let me back up to another question I wanted to ask earlier. And this goes to what Jeff calls my kind of like a sinister mind when it comes to litigation strategy. I'm not saying I would do this, but is there any danger, do you think, and we're going to get to petitions for supersedious uh later, but just uh for the uninitiated.

Risks of Petitioning for Supersedeas

Tim Kowal 10:04

It's called a petition, but it's not an original proceeding. It's filed as basically a motion for stay in a inside a direct appeal. So there's another case number pending. And the argument is that, uh dear court, you you need to please stay certain proceedings below or certain enforcement actions. Otherwise, my appeal is going to be rendered totally and completely moot, and there will be no way for the court to render any effective relief. And then let's say that's summarily denied, and then the really bad thing that's going to happen is on June 29th. What if on June 30th, uh opposing counsel files a motion to dismiss on the grounds that the appeal is moot? Because, hey, they said so themselves in their own petition for supersedious.

Hon. Thomas Fay 10:42

That is a risk, I suppose. It comes down to, again, if you're in the position where it really does moot your appeal and the court shrugs its shoulders and says your supersedious petition is denied, then one of a few things has happened there, right? The first thing that might have happened is we just don't think you've met the showing that the your appeal demonstrates substantial questions, right? That's one possibility. And in that case, yeah, it's you weren't going to win anyway. So you're out of luck. Another is maybe we don't think it's moot. Maybe we'd think there's some reason why, say, again, using your dates, after June 29th, there's still a live question here for one reason or another. Perhaps the thing that you're afraid of happening is remediable in some fashion. We might disagree with you about that. I don't think it is necessarily, at least I've not seen a contention that something's moot in a supersedious petition being used as judicial estoppel or similar to try and strike or defeat the effect of a subsequent opposition to a motion to dismiss. But I'm not saying it's impossible. I'm just saying we give those we give those supersedious petitions in the first instance the best possible workup we can. And if we've disagreed with you, I agree with you. We're conscious of the feeling of unfairness that you might get if we deny your supersedious petition and then turn around right afterwards and say, you were right, it is moot now. That kind of thing is perception that that might be unfair.

Jeff Lewis 11:57

See, Tim, the people in the appellate court, they're

Key Elements of Writ Petitions

Jeff Lewis 11:59

not sinister at all.

Tim Kowal 12:00

You've got it all wrong. They're kind. No, no, I'm saying my adversaries are sinister.

Hon. Thomas Fay 12:04

Yeah, they they're the ones who are going to seize on your contention that it's moot, right.

Tim Kowal 12:08

I'm glad that the court is not interested in getting us coming and going, that your supersedious is denied and your appeal is dismissed. That would be the terrible double whammy. All right, let's uh the next batch of writ nuts and bolts on procedure. And Judge Faye, you wrote this or put this into your PowerPoint presentation, reciting some of the factors or elements from Rule of Court 8.486 of the required pieces that need to go into your writ petition. It needs to include or attach the order that the writ petition is challenging. Uh so the court, if it's going to vacate or otherwise review the order, you've got to attach it so they can see it. You have to attach the motion or other filing that led to the order, so the necessary context leading up to the order, a reporter's transcript of the hearing, uh, if that's available, or if it was an unreported hearing, then a declaration explaining why the reporter transcript is not available, and you would also uh fairly summarize what happened at that hearing. And anything else the court needs to understand what's going on. And then also a memorandum appoints and authorities setting out the law. And anything else to add to that, Judge Faye?

Hon. Thomas Fay 13:17

The most important thing to remember is when you send us a writ petition, this is the first time we've ever heard of your case in all likelihood. We don't know what kind of case it is. We don't know who you are, we don't know who the other side is. We don't know the whole sordid history of the underlying dispute or the last two years of litigation you've had in the trial court. We don't know any of that. And anything we need to understand that needs to be part of your writ petition andor exhibits. Because otherwise, how do we know about it? And we can't really base any decisions on things we don't know about. So that's I think important to keep in mind. And I guess if you're somebody who is coming from federal practice, as which is that's you more, Mr. Lewis, as then. In the federal system, as I understand it, the Ninth Circuit has access to all the trial court's underlying files and so on through the PACER system. We don't really have that same degree of access. We have some access to some stuff here and there, but you can't rely on that and you shouldn't rely on that. What we know about your case is going to be only from what we give you. So if your petition is talking about some order, probably that should be in your exhibits, just so we can look at it. So we're not asking questions.

Tim Kowal 14:25

Now, if you're asking the court of appeal for an immediate stay pending processing of your writ petition, you only get a stay if you ask for one, typically. And if you ask for a stay, you have to put that right on the cover of your writ petition saying stay requested very conspicuously. Uh typically, I think it's in all caps, bold. The the rule against uh uh promiscuous uh emphasis in typography usually does not apply to

Preliminary Oppositions to Writ Petitions

Tim Kowal 14:50

that rule. Stay requested, put it all the flashing lights on that one, and then put the date by which the stay is needed and the nature of the stay requested. Help the court triage that writ petition as soon as it comes in without having to plumb the depths of your writ petition. And uh and then also, at least in the four-third, you're gonna need to personally serve the petition on the respondent court and on real parties and interest unless they have stipulated to electronic service.

Hon. Thomas Fay 15:18

That's right. And the stipulation to electronic service isn't just the normal stipulation that you get by virtue of filing electronically in the trial code. You have to specifically agree to elect accept electronic service in lieu of personal service for that to be deemed an appropriate immediate stay type service. That that putting the stuff on the cover, that lets our clerks know, because they're the people who see it first. That lets our clerks know, oh, I need to get this right away upstairs to central staff, to the RIT staff, so that they can start working on this before I have input all the documents and before I have cataloged everything and all that stuff. It's okay, this is very time sensitive. I'm gonna email it upstairs and they can start working immediately. That's the point of that, uh, is to give us a heads up. Because the thing we fear is that we miss one of these, that litigates ask for a stay on something very time sensitive, and for whatever reason, we don't get to it in time. At least me, that's what keeps me up at night. So that's the purpose of that rule is to try and ensure that that never happens.

Tim Kowal 16:14

Yeah, you gotta get past those gatekeepers. Clerks are guarding the court against these papers that don't meet the rules. If it's a non-urgent scenario, but if you uh check the box that it's urgent by putting that stay requested on the front page, then the clerk will run it up to the writ panel immediately while the clerk works with you to sort out any kind of service issues or anything else. Is that uh about right?

Hon. Thomas Fay 16:35

That's right. They're not gonna reject your petition for not being bookmarked properly if it says stay requested today on the top of it. They're gonna say, okay, never mind. We're set aside the formatting rules, just get it straight to the writs people and and we'll take it.

Tim Kowal 16:46

Okay, and then let's talk about preliminary oppositions. Preliminary oppositions to writ petitions are not required, so there's no default to be taken. You can't uh your opponent can't get a writ granted by default just because you didn't oppose it. Jeff and I have talked about this, I think. There are different schools of thought on doing a preliminary opposition. And frankly, my advice to my clients whenever uh the other side files a writ petition is let's not bother, because the the Court of Appeal can't grant a peremptory writ uh without giving us an opportunity to oppose. So let's just see if the court is interested in hearing from us first.

Jeff Lewis 17:18

In in Orange County, I recently got burned giving that advice to somebody up in LA and the relief came down. So yeah, in Orange County, yes. In LA, maybe not.

Hon. Thomas Fay 17:28

Yeah, we have a local rule, local rule one B that says that we we are not gonna do anything other than deny the writ petition or issue some kind of immediate maintain the status quo stay without either receiving an opposition from the real party in interest, or we issue an order requesting such an opposition and the time expires for you to oppose it, and then we throw up our hands and do whatever we're gonna do. The reason for that are obvious. I think that's to my mind, at least that's the fairest way to do it. Some people submit unsolicited oppositions, some people don't, and that can go one of several ways. Sometimes when we send out a request for an opposition, we will tell you what issues we want you to talk about. And that can be helpful in drafting your opposition. We don't always do that, but sometimes we do. Of course, sometimes we also do a thing where you send us an unsolicited opposition and we say, okay, yeah, but tell us about these issues as well. Well, we might ask for a second one, supplemental briefing type situation. So it's not necessarily a downside to do that. I've heard practitioners say that one of the reasons to do that, at least in our court, is there's not much downside because you can't get relief granted without an opposition having been filed, and you might get a peek into what the panel's thinking.

Jeff Lewis 18:33

So, Your Honor, how often would you estimate that you get unsolicited opposition?

Hon. Thomas Fay 18:38

Numbers are hard to estimate, but it does happen not infrequently. I I would say it happens fairly frequently. And usually that's done by an attorney on the other side who perceives, accurately or otherwise, that the repetition on its face seems like there might it has the appearance of plausibility, but hey, here's the part they're leaving out, Your Honors. Here's the part that they haven't told you. That's what I often see with unsolicited oppositions is wait a minute, you're not getting the whole picture here. Here is the whole picture, and now that you've seen that, clearly you're going to deny it, right? That's usually the tenor of those of those documents.

Tim Kowal 19:11

I'm curious, Jeff, about your example. Uh, because uh Judge Faye, I think the the Orange County Local Rule 1B is is consistent and maybe even I would have thought required by by Palma. That's why the Court of Appeal will send out those Palma notices saying that basically we w were inviting a preliminary opposition because they're thinking about issuing the writ in the first instance and they need to give the opportunity to file an opposition first.

Hon. Thomas Fay 19:35

I can't speak to how other districts do it. But it is our practice to follow Rule 1B in every instance, and that avoids any issue with violating Palma and not having given proper Palma notice and all those sorts of things. And we are, of course, very conscious that if we are going to issue a peremptory writ in the first instance, that we have to give Palma notice. I guess I should back up. Palma is a Supreme Court case, California Supreme Court case that says that if you as the Court of Appeal are going to issue a peremptory writ of mandate in the first instance, you need to give this special notice letting everybody know, hey, we're thinking about it. We don't have a problem with that because we follow Local Rule 1B, and so nobody can ever say I didn't get a shot to oppose it. But like I said, I can't speak for how other districts handle it. They may have their own reasons for doing that. They may read the rules differently. I don't know.

Tim Kowal 20:21

Well, that takes us into available remedies. Uh so every mandamus petition ends in one of two ways,

Different Approaches to Writ Issuance

Tim Kowal 20:28

denial or issuance of the peremptory writ, but there are different ways that you can get there. We talked about the court of appeal may request opposition andor issue a Palma notice, and there are suggestive Palma notices, or I guess a plain vanilla Palma notice, or the court can issue an alternative writ or in order to show cause. Could you walk us through those those three different approaches? A Palma notice and then the alternative writ in order to show cause.

Hon. Thomas Fay 20:55

Sure. So a Palma notice is a notice to the parties and I and to the trial court as well, that the court of appeal is considering issuing a peremptory written mandate in the first instance. There are lots of reasons to do that, to do a Palma notice. But one of the reasons is what's called a suggestive Palma notice. And a suggestive Palma notice is it's got all the Palma notice language and it also has a little mini tentative opinion in there. It says, hey, we think the trial court may have erred, and here's why and here's how. And so trial court, this isn't an appeal, right? There's no Code of Civil Procedures Section 916 automatic appellate stay in effect right now. You still have complete jurisdiction over the case. If you want to change your mind, you have the power to do that. If you find this reasoning persuasive, get back to us within some specified period of time about whether you're going to do that. That's a suggestive Palma notice. That now the Palma cases and I think some subsequent cases have said that you're really only supposed to do that when either the right to relief is quite clear or when it's an incredibly urgent situation. But in any event, that's one approach that the Court of Appeal will use uh to try and push the case back in the direction that the panel wants it to go. An alternative writ is similar. The alternative writ typically doesn't contain some kind of tentative analysis, but it does pose the court with the trial court with two options on a timer. One is change your order, grant do something different than what you've done before, usually something specific, or alternatively, show cause. And it's really real party and interest show cause as to why we shouldn't issue a peremptory writ. And then the third major option here is we could just go straight to the order to show cause phase. That's we take it up as what we call a cause in our court, and we tell the real party in interest, again, the order to show cause is phrased typically as respond and court will show cause, but actually it's the real party in interest that's going to file the return. And we just basically set it up for briefing. We're going to have typically oral argument, and then we're going to issue some kind of opinion. And the use of these is a little different, right? And you can sort of see it by what our options are. If we issue a suggestive Palma notice or even an alternative writ, typically that's being done because the panel agrees with the petitioner. And the panel is thinking that the trial court probably should do something differently. Now, not always. Sometimes the alternative writ, the trial court has a real option there. The trial court can say, I don't want to change my mind. I think I was right, and here's why. And now they don't necessarily appear in this court, but they might issue a minute order that says I've considered it and I'm not going to, and here's why. But the order to show cause, you might see that you might see the panel use that in a circumstance where there is a novel or important issue upon which the panel wants to write an opinion, a published opinion, but upon which the panel agrees with real party and interest position or the trial court's position, right? So if you issue a Palma notice or an alternative writ, you're telling the trial court, I agree with the petitioner. If you issue an order to show cause, you're saying we want to take this case. Subtly different, right? Doesn't always work that way. It might be in certain circumstances a hint as to where the panel might be leaning.

Tim Kowal 23:46

So if you're the petitioner, you don't really want the alternative writ.

Hon. Thomas Fay 23:49

You want to The alternative writ's good. If you're the petitioner, the alternative writ's good. First of all, anything that's not a denial, a summary denial is a win if you're the petitioner. It's a win. Even a request for opposition is a win, at least a temporary win if you're the petitioner. Of these sort of writ options of the Palma notice, the alternative writ, and the order to show cause. If you're the petitioner, the order to show cause is the one you want the least. Because it suggests that maybe, not always, but maybe the panel is thinking of issuing a published opinion explaining why a real party interest is right and why the trial court was actually right to do this.

Tim Kowal 24:22

That happens when there's an order to show cause or or an alternative.

Hon. Thomas Fay 24:24

Order to show cause. So the alternative writ says trial court change your mind or show cause. Right. The order to show cause is we've jumped, we've skipped that whole trial court can change their mind step, and we've said, we're just going straight to we're going to have the hearing, we're going to have the briefing, we're going to show cause right now. That one, if we're not giving the trial court a chance to change its mind, not always, but sometimes there might be a reason for that, and it might be that the panel agrees with the trial court, but wants to write something about it.

Tim Kowal 24:50

Potential downside. It's something to be aware of with an alternative writ. I've seen alternative writs that do give some analysis for what the court is thinking. But an alternative writ is not law of the case. It's basically just a suggestion that, hey, trial court, you still have jurisdiction. You could change your mind on this, conceivably, and you might want to think about doing so for these reasons. But that alternative writ is not law of the case. And I remember a few years ago seeing a case, I can't remember the facts now, but I remember it was Judge Birdsong. A writ was taken up on one of Judge Birdsong's orders, and the Court of Appeal, this would be the second district, came down with an alternative writ, and Judge Birdsong said, nah, I'm just going to let it ride, not going to change it. And the the court came

The Complexity of Writs and Appeals

Tim Kowal 25:30

down with a preemptory writ overruling Judge Birdsong. And but I thought the upshot of it was look, if Judge Birdsong had voluntarily changed his order, it's still an appealable issue that could be challenged later on in the case because that alternative writ was not binding. And so I think in that particular case, uh Judge Birdsong maybe saw the value in having the Court of Appeal just settle that issue once and for all. That way it removed it from the issues, the controverted issues.

Hon. Thomas Fay 25:56

I think that's right. And I'll give you even a little more surprising example. This is a case called Roulier v. Cannondale. It's a 2002 published case. I may not be pronouncing that correctly. 101 CalAp Fourth 1180. Okay. And in this case, this is a second district case, if I remember correctly. Somebody petitions, makes it files a repetition in the Court of Appeal. Court of Appeal hands down an alternative writ. The trial court complies, but this requires further briefing. And then the trial court, having complied with the alternative writ, still ultimately reaches the same conclusion on different grounds, if I'm remembering this correctly, and I may be butchering this a little bit, but this is the substance of it. Petitioner files a second repetition. Again, the alternative writ comes down, and the trial court says, okay, I got the message. I'm supposed to grant or deny this motion. I'm supposed to come to the opposite conclusion. Trial court does so. The real party in interest, Hope Springs Eternal, takes an appeal from the result and gets a reversal. Yes, yes. So I'm just saying, you never know with these things.

Tim Kowal 26:59

Now Yeah, it took three times around the block on that same issue.

Hon. Thomas Fay 27:02

Yeah, and I have to imagine if I were the trial judge, maybe this is in my future, but if I were the trial judge, I'd be throwing books in my chambers saying, how can you give me two alternative writs and then reverse me after I do what you tell me to do? But that like I said, hope springs eternal. The alternative writ doesn't end the goalgame for anybody.

Tim Kowal 27:20

It's also a testament to the work that appellate courts do and appellate attorneys do and trial judges. We're all part of the same drama that's playing out laying the record, making the initial rulings, and then taking up at the intermediate stage. And then it's a constant filtering and winnowing process. You're shaving off all the chaff and all the facts and legal details that don't really matter, and finally getting to the core legal issue. And yeah, actually, this particular issue really hasn't been decided yet, or not in this particular context. And that's why you have petitions for review to the Supreme Court after all that winnowing has happened.

Hon. Thomas Fay 27:52

That's right. Sometimes they tell us, they tell the Court of Appeal we're wrong.

Tim Kowal 27:56

Happens. Sometimes it happens maybe uh two or three different writ petitions uh going around, and then finally an appeal on the same issue has happened in that case you just described. What was that case uh out of the four third uh years ago? Uh it was the crocodile tears case where the trial judge said, Yeah, I would deny your request for relief from default, uh, because I'm just not persuaded. But I know those judges at the at the 4-3rd, they would have crocodile tears about this poor put upon litigant. So I'm just going to grant it. And the I want to say it was it was Justice Bedsworth, but I could be mistaken, said, Trial judges, it's not for you to take yourselves out of the game by just guessing what we're gonna do. You have to suit up and get in the game and and take your swings like the rest of us. And then if we think you're wrong, then we'll at least have your independent

Understanding Supersedious Petitions

Tim Kowal 28:43

judgment to fall back on, not just your prognostication of what you think we're gonna do.

Hon. Thomas Fay 28:47

That's right. I think that's right. Suit up, Your Honor. Yeah.

Tim Kowal 28:51

We we have to get to uh to supersedious. As we mentioned, a petition for a writ of supersedious is uh, Your Honor, is this a petition and is it a writ? It it's not an original proceeding. It is something that's filed in an existing case number, typically a direct appeal, but I suppose it could be in another writ petition as well. So it requires the perfection of an appeal, exhaustion of trial court remedies. So you have to have tried to get a stay in the trial court and be denied, and then either show that the automatic appellate stay applies under Code of Civil Procedure 916, or the appellant can show irreparable harm if the trial court's proceedings are not stayed. You can also even get broader relief than that under CCP 923. The Court of Appeal, frankly, I often forget this. I think of Supercedious as just kind of staying the four corners of the trial court's order, but it can reach broader than that and basically have the effect of a preliminary injunction. But tell us a little bit more about supercedious and how the writ panel processes those.

Hon. Thomas Fay 29:49

They're often time-sensitive, and so you do the same triage, the same, do we need this now? Can it wait for the writ conference? Does it does it go to the back of the pile? That same kind of analysis. Supersedious petitions are only available in situations involving a direct appeal by definition, because you one of the elements is that you have to have perfected an appeal. Now, if someone can explain to me the difference between a writ of supersedious and an immediate stay in a writ posture, I'll be very surprised because it's the same thing. That's just different words for the same thing. It's really a motion for stay. And it's again again the same stuff. If you want supersedious relief, you really either you need to show that the automatic stay should apply here and isn't being applied, or you need to show us I'm gonna suffer irreparable harm, I can't wait, the the trial court is gonna allow some crazy thing to happen and it's gotta be stopped. I tried to stop it and I couldn't. Something like that.

Tim Kowal 30:39

Okay. And so is it uh as a matter of uh the definition, the hygiene of definition, is it a petition? How is it a petition if it's not an original proceeding? You try not to think too hard about that in the honest video.

Hon. Thomas Fay 30:50

My approach to it is a petition for a writ of supersedious is a motion for stay in an in an ongoing appeal. That's what it is. There may be some historical reason why we call it a petition for a writ of supersedious, in the same sense that by the way, a demur is a pleading. It's not a motion, it's a pleading. I don't know why we call it that, but there's some historical reason for that. But don't think too hard about it. It's a motion for a stay in an ongoing appeal. That's what it is.

Tim Kowal 31:14

That's a that's a good analog. Every other state calls it and jurisdiction calls it a motion to dismiss, but we in California call it a demur.

Hon. Thomas Fay 31:21

That's right. And and not only do we call it a demur, it's specifically listed in the Code of Sober Procedure as one of a small list of things that are pleadings, as opposed to motions. Don't know why that is. And maybe I'm exposing my own ignorance here, but that's just a strange artifact. And of course, that's also the reason why you sustain demurs and you overrule them rather than granting or denying them.

Tim Kowal 31:40

Yeah.

Hon. Thomas Fay 31:41

Again.

Tim Kowal 31:41

And so and supersedious, I I think it's just Latin for stay, but it's why it's not called a motion for stay is uh beyond me. Maybe that's why we get certified specialization in appeals.

Hon. Thomas Fay 31:51

Aaron Powell Well, right. We we love our Latin in the law, right? We love the writ of mandamus, which is just writ of mandate, which is just tell the trial court to do something. And we love the I think there's a Latin for there's a prohibition one as well. And that's just tell the trial court not to do something.

Tim Kowal 32:05

I think uh writ petitions used to come in uh different flavors. There was petitions for writ of mandamus and writs of prohibitum. That's right. There still are two others.

Hon. Thomas Fay 32:14

There still are, but uh I have never seen uh a writ petition denied for being of the wrong flavor. I've never seen that. I've never seen anyone try

Drafting Effective Writ Petitions

Hon. Thomas Fay 32:23

to argue that it should be, because why?

unknown 32:25

Yeah.

Tim Kowal 32:26

Yeah, it's yeah, it should not be the label that controls. I stopped uh thinking too hard about that when I just call them all petitions for writ of mandate. Okay, I've got uh I've got a few burning questions I wanted to cover in our last few moments here. These are uh I might overlook some of these important things that we discussed, but these are the things that are important to me when I'm drafting a writ petition, like at the top of a writ petition where you usually put the case number. Well, you don't have a case number in a writ petition because it's an original proceeding. You haven't opened it yet because you haven't filed it yet. But I still have an artifact on all of my writ petition templates that say NO, period, which is for some reason the uh the abbreviation for number, at the top left corner of my writ petitions. Is that needed?

Hon. Thomas Fay 33:05

The clerks are not going to reject it if it's not there. I think that's the right way to do it, personally, but my opinion is mine only. And I think, if I'm not mistaken, the NO, that's another Latin, another Latin artifact, if I'm not mistaken.

Tim Kowal 33:17

Probably the respondent in a writ petition is the lower court, the trial court. How how often does the trial court actually respond or get involved in a writ petition?

Hon. Thomas Fay 33:29

That's a good question. They almost never do, and they are usually not supposed to. They're usually prohibited from doing so. But there are limited circumstances where a trial court can and will respond to a writ petition on typically, as I understand it, on invitation of the Court of Appeal itself. We haven't done that in the entire time I've served as a writs attorney here. But there's an example that comes to mind. I believe this was done in writ proceedings regarding the Code of Civil Procedures Section 170.6 disqualification thing around then judge, then justice, now retired Justice Gothels in like 2014. Where the issue is one that is really about internal superior court proceedings and the real party interest doesn't really have a stake in the outcome, then you could see the Court of Appeal requesting, actually requesting response from the Superior Court itself. But that almost never happens. And in a typical in an ordinary case, the Superior Court is not to do that. And what they are supposed to do instead, if the trial judge wants to say or do something, it should just be a minute order in the trial judge's own department that then just gets transmitted to us, not a filing in our court, if that means Your Honor, is that like a rule of decorum or civility that prohibits the Superior Court from doing that?

Jeff Lewis 34:44

Or where's the source of that prohibition?

Hon. Thomas Fay 34:46

That's a good question. That's a great question.

Jeff Lewis 34:49

I never heard that.

Hon. Thomas Fay 34:50

I can tell you that's the procedure. I'd have to go look and see if it's if that's embodied in a rule of court or statute, or if that's just the that's just the accepted procedure. But it I can tell you that that is the that that is the procedure.

Jeff Lewis 35:02

I'm sure one of our listeners will weigh in and send us a an email.

Tim Kowal 35:05

Sorry, Tim, go ahead. I was looking up one of my recent read petitions where I have NO period at the left-hand uh top left hand corner. Uh the actual file stamp puts the case number on the right-hand corner, top right-hand corner of the read petition. So I wonder if I need to do some like pin the tail on the donkey and try to put my NO, line it up with where the stamp is actually going to go.

Jeff Lewis 35:25

No, Tim, the NO in the left corner identifies you as old school. It's a badge of honor. Keep your template as is.

Tim Kowal 35:31

Uh yeah.

Jeff Lewis 35:31

It's like I agree with you.

Tim Kowal 35:33

Comes now is also a badge of honor. You have to number the paragraphs in a petition for writ of mandate. I think because when you are asked to respond to it and do a return, you're supposed to respond to them by number as you do in a superior court pleading or answer. What about in a petition for supersedious? Do you need to number the paragraphs there?

Hon. Thomas Fay 35:55

This is one of those rules that is, I think, inconsistently enforced, both in the mandamus context and in the supersedious context. In theory, a mandamus petition, because it's an original proceeding, you're supposed to do numbered paragraphs for the reason you're describing, because it's more like a a pleading. But you're right, uh a supersedious petition is a it's it's more of a motion, really. And so I, again, I I don't think you're ever going to see one denied on that ground. It's certainly I've never heard anybody discuss something like that in our court. I can't speak for every court in the state, obviously, but that is that is my impression of the the state of play. I don't think it's required. I don't think

Navigating Trial Court Interactions

Hon. Thomas Fay 36:31

setting it up in numbered paragraphs in that fashion is required, but I suppose I could be wrong.

Tim Kowal 36:36

There is a response filed or an opposition to it. Actually, for that matter, what would a response be called? Is it a a response or it's not a return, would it just be an opposition? I think that's how I've seen them framed.

Hon. Thomas Fay 36:46

To a supersedious petition, I see them that they're typically titled oppositions, yes.

Tim Kowal 36:50

Yeah. So along the same lines, you need a verification in a writ petition. What about in a petition for supersedious?

Hon. Thomas Fay 36:55

I believe the answer to that is yeah, you you probably do. I don't think the rules of court expressly require it, although I could be wrong about that. But the thing to remember is that to get supersedious relief, one of the things you have to do is demonstrate that you have you have requested a stay from the trial court. That's required both for the automatic appellate stay and for the discretionary supersedious type situations. And the only way you're gonna be able to demonstrate that is to hand us exhibits because they won't be part of the record on appeal. So the only way to do that is to make some statement under penalty of perjury that these are real documents.

Tim Kowal 37:26

That's right.

Hon. Thomas Fay 37:27

So you've got to, I think you've got to do that.

Tim Kowal 37:30

So either verify it or uh or submit it along with the declaration.

Hon. Thomas Fay 37:34

Right, which is a di a distinction without a difference, really. Yeah.

Tim Kowal 37:37

I'm trying to figure out what are the differences between uh petitions for writ of mandate and petitions for writ of supersedious. The legal argument in a writ of mandate is in a memorandum that follows the the the petition and the prayer and the verification. And then there's a memorandum of points and authorities where you put all your legal arguments. That's the part that looks like the uh like the merits brief. Do you need to do the same kind of structure in a petition for supersedious?

Hon. Thomas Fay 38:00

If you're not doing the numbered paragraphs in a petition for writ of supersedious, I don't see why you would necessarily need to do it that way. Uh the most important thing is that you make sure you include everything in the supersedious petition that is required by the rules of course. You've got an appropriate statement of the, especially when there's no record, which is often the case. You need an appropriate statement of the case. You need to make sure that you've verified all the exhibits that demonstrate your entitlement to supersedious relief. You need to and then you need a complete memorandum that explains why you're right, right? So you need all those pieces, whether they need to be formatted exactly the same as mandana's petition, I don't think they do. But like I said, we are not in the business, at least I at this court and in my experience, we're not in the business of denying supersedious petitions because your paragraphs are numbered or unnumbered, or because you've got one statement here versus one statement there. We're we're looking, we're looking past that where we can.

Jeff Lewis 38:48

Or because you used cleaned up or not, Tim. They're not going to deny you relief because you use cleaned up.

Hon. Thomas Fay 38:53

I think cleaned up has appeared in at least one opinion of this court. I'm not mistaken. Yes, it has. I watched. Yes.

Tim Kowal 38:59

Okay, my last question, and it's along the lines of exhausting remedies and asking the trial court for a stay before rushing in and asking for supersedious. On on multiple occasions, uh, when I'm laying the groundwork for a writ, I've asked the trial judge, either personally or I've told my trial attorney to do so, to ask the trial judge for a temporary stay so that because we're going to need to go in on a on a writ or petition for supersedious, and we don't want to make the writ panel have to put on another pot of coffee and uh burn the mid-eyed oil to process this one. So can we just please have a few extra days? And I have to say, usually, and maybe my sample size is too small, but usually the response is, yeah, nice try, denied. I would think that there would be a little bit more collegiality from the from the trial bench to the to the appellate bench, but maybe I'm being cynical. Is that uh do I have a skewed sample? Do you see that as a writ attorney?

Hon. Thomas Fay 39:49

I have seen it. I do see it. In my experience, now keep in mind, of course, I'm gonna see supersedious petitions where the stay was denied. If the stay is granted, especially if it's a stay that is for the duration of the appeal, I will not see a supersedious petition because why, right? There's already a stay. So, but I do see trial courts in our county, in Orange County, I do see them not infrequently, not always, but not infrequently, grant a stay of a few days on a time-sensitive order to allow a party who's got a stated intent to file, for example, a mandamus petition to do so without prejudicing their client's interest. Typically, I've seen those stays on the order of 10, 15, 20 days. Of course, that is completely discretionary. The trial court doesn't have to do that as far as I'm not aware of a statute that requires that, except something in the back of my mind is there is some circumstance where you have to do that in some very specific order that I'm not remembering off the top of my head right now. Might be lispend. Anyway, in general, I have seen I have seen it, and not too infrequently, but I've also plenty of times seen the trial court simply refuse. And keep in mind, of course, that these are often going to be presented as an ex-party application, and the trial court, understandably, is gonna look at that and say, I've got 15 x-party applications this morning, and you're telling me that the premise of your ex-party application is that I'm wrong. So no. And I understand that as well. Uh but like the synopsis is it happens sometimes,

The Role of Certification in Writs

Hon. Thomas Fay 41:15

not always. I don't I can't speak for why your sample looks the way it does.

Tim Kowal 41:18

I lied. Here's really my last question. And it's it's also along the lines of of uh how a trial attorney should try to lay the groundwork for a writ petition or for seeking a petition for supersedious in the court of appeal. Code of Civil Procedure Section 166.1 allows a trial court to certify an issue for appellate review. It doesn't actually make it appealable. I would agree that this is writ worthy, but it might not carry any more weight uh legally than the attorney's own view that it's writ worthy. Do you see many of those and and how does the Court of Appeal and the writ panel treat 166.1 uh orders?

Hon. Thomas Fay 41:52

Asked for it once as a private practitioner and was instantly and summarily denied. And uh again, uh understandably the premise there is, well, trial court, you might be wrong. And that I don't think most trial judges are not s particularly interested in hearing that after they've given spent their time and the and effort to make sure they've got the right answer. I haven't seen, I'm not recalling off the top of my head having seen an actual 166.1 request granted, but I have seen its equivalent, where I guess the parties didn't realize that that was a statutory procedure they could employ, but the trial court and they all agreed that, again, I don't want to get too much into the details of any particular case here, but I did see it in one instance where the trial court and the parties agreed, yes, this is a it's a novel issue, it is it's important, and it's uncertain. So the trial court tried to package up the issue as cleanly as it could for writ relief. And I believe if I'm not mistaken, writ relief was granted and an opinion was written, but it wasn't published because if I remember correctly, the panel's determination was that it wasn't novel, actually. So it's very rare that I see that. And I agree with you, most people are not even aware that that procedure is available. It is, but it does not see much use. And I don't know how receptive the trial court is to is to that in most situations.

Tim Kowal 43:07

Aaron Powell So it's fair, it's rarely requested, rarely granted. So it may be too small a sample size to make any uh uh prescriptions or advice on how it might play out in the Court of Appeal.

Hon. Thomas Fay 43:18

Aaron Powell I think that's right. I I think it's also probably worth saying that I'm sure the panel would give that the trial court's view on that some weight, that it that it's important and novel and interesting. But the panel is going to make its own mind up at the end of the day.

Tim Kowal 43:32

So Well, Judge Faye, this has been very illuminating. I mean, writ practice is uh obviously a huge part of what we do as appellate attorneys. It is uh the most frantic part of what we do. It's uh sometimes the most unpleasant, but but it often the most interesting and exciting. And the worst feeling is when you don't do it right, when you've not made the personal service or haven't gotten the verification or followed one of the rules of court. And so hopefully this discussion, uh, our listeners will be able to bookmark it, listen to it again next time they have to prepare a writ petition. And uh, Judge Faye, I'm grateful that you did not decide to back out after you became appointed to the bench, because now there's uh hundreds and thousands of attorneys who uh are better armed to uh to take you up on a writ if they don't like a ruling that you hand out.

Hon. Thomas Fay 44:19

I see it as it's a safety net. If I got it wrong, the the three really smart people are gonna tell me why I got it wrong and how to fix it. And then I then the parties aren't harmed by the mistake I made. That's the way I look at it. But I wouldn't have missed it for anything. As I said before, I'm a regular listener, so it's a real pleasure to appear on this podcast and speak with you folks. Uh it's great.

Jeff Lewis 44:37

Yeah, and Your Honor, accept our best wishes for the for the patience and wisdom for the trials that you're about to undergo. And uh thank you for your service. It's it's not easy to serve as a judge, so thank you in advance for that. Thank you very much.

Tim Kowal 44:49

Well, and we hope you'll come on again uh later on and share some of your perspective once you've served on the on the bench and have had to deal with attorneys like us and our trial attorney counterparts firsthand. Well, that's gonna wrap us up for this episode, Jeff. If you have suggestions for future episodes, guests, or topics, please email us at infocalpodcast.com in our upcoming episodes. Look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis 45:14

See you next time.

Announcer 45:47

Our hosts, and other episodes, visit the California Appellate Law Podcast website at CAL Podcast.com. That's C A L Podcast dot com. Thanks to Jonathan Caro for our intro music. Thank you for listening, and please join us again.