Fill and Sign the App 150 Info Information on Writ Proceedings in Misdemeanor Infraction and Limited Civil Cases Judicial Council Forms

Inf or m ation on Wri t P roc eedi ngs in M isde m eanor , In fra ction, a nd Li m ited C ivil Ca ses ___ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ Inf or m ation on W rit Proceed ings i n APP-150-INFO, Page 1 of 12 Misde m eanor , Inf raction, and Lim ited Civil Cases AP P -150 -INF O Rev. July 1, 201 0, Optional Form California Rules of Court, rules 8.930–8.936 This information s he et tells you about writ proc eed ings— proc eeding s in w hich a person is asking for a w rit of m anda te, proh ibition, o r review— in misde meanor , infraction, a nd l imited c ivil cases. P lease read this information she et be fore you fill o ut Petition for W rit (Misdem eano r, In frac tion, or Limited C ivil Case) (fo rm A PP-151) . T his informatio n s he et doe s no t cov er everything you m ay ne ed to k now abou t w rit proc eeding s. It is onl y m eant to give you a g ene ral ide a of the writ proc ess. To l ear n m ore, y ou s houl d read rules 8.930 –8.93 6 of the C alifornia R ules of C ou rt, w hich set out the proc edur es for w rit proc eeding s in t he appe llate division. You c an g et the se rules at any cou rtho use or This inf ormation she et do es N OT pr ov ide information about appe als or p roc eed ings f or w rits of supe rsed eas or ha be as corpus . • For information a bout appe als, pl ease see the box on the top o f this pa ge. • For information a bout w rits of ha beas corpus , p lease see rules 4.55 0–4.55 2 of the C alifornia R ules of Cour t and Petition f or W rit of H abe as C orpu s (for m MC -275) . • For information a bout w rits of sup ersede as, p lease see rule 8.824 of the C alifornia R ules of C our t. You c an g et the se r ules and form s at any cour thous e or A writ is an or de r from a hi ghe r cour t telling a low er cour t to do s om ething the law says the low er cou rt m ust do or no t to do som ething the law says the low er court doe s no t ha ve the pow er to do. I n w rit pr oceeding s in the appe llate di vision, t he low er cou rt is the supe rior court tha t took the action o r issue d t he orde r be ing cha lleng ed. In th is infor ma tion sh eet, we cal l the lower cou rt the “trial cou rt.” Yes. The re a re three m ain k inds of w rits: • Wr its of m anda te ( som etimes ca lled “ manda mus”), which a re orde rs telling the trial cou rt to do som ething . • W rits of proh ibition, w hich are orde rs telling the trial cou rt not to do som ething . • Wr its of r ev iew (som etimes c alled “ce rtiorari”), which a re orde rs telling the trial cou rt tha t the appe llate d ivision w ill rev iew cer tain k inds of act ions already tak en by the trial cou rt. The re are l aws ( statutes) that you s hou ld r ead conc erning each type of w rit: see C aliforni a C ode of C ivil Proced ure sect ion s 1084 –1097 a bou t writs of m anda te, section s 1102 –1105 abou t w rits of prohi bition, and sections 1067 –1077 abou t w rits of review. Y ou c an g et cop ies of No. In a n ap pe al, the app ellate di vision must cons ide r the parties’ argum ent s and de cide w he the r the t rial cou rt made the leg al er ror cl aimed by the app ealing pa rty an d whe the r the trial cour t’s de cision s houl d be ov erturne d W ha t doe s thi s inf or m ation s he et cove r? W hat is a writ? Are t her e d iffer en t ki nds o f writs? Is a writ p roce ed ing the sam e a s an a ppe al? 1 2 3 4 For inform ation a bout appe al proc edur es, see: • Information on A ppe al Procedur es for Misde mean ors (fo rm C R-131 -INF O) • Information on A ppe al Procedur es for Infrac tion s (for m C R-141 -INF O) • Information on A ppe al Procedur es for Lim ited Ci vil Cas es (for m AP P-101-INF O) You c an g et the se forms at any cour thous e or coun ty GE NERAL IN FOR M ATION count y law library. count y law library. the se s tatutes at any coun ty law library. Judicial Council of California law library. Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 2 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO based on that error (this is called a “decision on the merits”). In a writ proceeding , the appellate division is not required to make a decision on the merits; even if the trial court made a legal error, the appellate division can decide not to consider that error now, but to wait and consider the error as part of any appeal from the final judgment. Most requests for writs are denied without a decision on the merits (this is called a “summary denial”). Becaus e of this, appeals are the ordinary way that decisions made by a trial court are reviewed and w rit proceedings are often called proceedings for “extraordinary” relief. Appeals and writ proceedings are also used to review different kinds of decisions by the trial court. Appeals can be used only to review a trial court’s final judgment and a few kinds of orders. Most rulings made by a trial court before it issues its final judgment cannot be appealed right away; they can only be appealed after the trial cour t case is over, as part of an appeal of the final judgment. Unlike appeals, writ proceedings can be used to ask for review of certain kinds of important rulings made by a trial court before it issues its final judgment. No. A writ proceeding is NOT a new trial . The appellate division will not consider new evidence, such as the testimony of new witnesses. Instead, if it does not summarily deny the request for a writ, the appellate division reviews a record of what happened in the trial court and the tr ial court’s ruling to see if the trial court made the legal error claimed by the person asking for the writ. When it conducts its review, the appellate division presumes that the trial court’s ruling is correct; the person who requests the writ must show t he appellate division that the trial court made the legal error the person is claiming. No. Writs can only address certain legal errors: Writs can only address the following types of legal errors made by a trial court: • The trial court has a legal du ty to act but: o Refuses to act o Has not done what the law says it must do o Has acted in a way the law says it does not have the power to act • The trial court has performed or says it is going to perform a judicial function (like deciding a person’s rights und er law in a particular case) in a way that the court does not have the legal power to do. There must be no other adequate remedy: The trial court’s error must also be something that can be fixed only with a writ. The person asking for the writ must show t he appellate division that there is no adequate way to address the trial court’s error other than with the writ (this is called having “no adequate remedy at law”). As mentioned above, appeals are the ordinary way that trial court decisions are reviewed. I f the trial court’s ruling can be appealed, the appellate division will generally consider an appeal to be good enough (an “adequate remedy”) unless the person asking for the writ can show the appellate division that he or she will be harmed in a way that cannot be fixed by the appeal if the appellate division does not issue the writ (this is called “irreparable” injury or harm). Statutory writs : There are laws (statutes) that provide that certain kinds of rulings can or must be challenged using a writ pro ceeding. These are called “statutory writs.” Here is a list of some of the most common rulings that a statute says can or must be challenged using a writ: • A ruling on a motion to disqualify a judge (see California Code of Civil Procedure section 170.3(d)) • Denial of a motion for summary judgment (see California Code of Civil Procedure section 437c(m)(l)) • A ruling on a motion for summary adjudication of issues (see California Code of Civi l Procedure section 437c(m)(l)) • Denial of a stay in an unlawful deta iner matter (see California Code o f Civil Procedure section 1176) • An order disqualifying the prosecuting attorne y (see California Penal Code section 1424) Is a writ proceeding a new trial ? Can a writ be used to address any errors made by a trial cou rt? 5 6 Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 3 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO You can get copies of these statutes at any county law library or online at www.leginfo.ca.gov/calaw.html. You will need to check whether there is a statute providing that the specific ruling you want to challenge can or must be reviewed using a writ proceeding. (Note that just because there is a statute requiring or allowing you to ask for a writ to ch allenge a ruling does not mean that the court must grant your request; the appellate division can still deny a request for a statutory writ.) Common law w rits: Even if there is not a statute specifically providing for a writ proceeding to challenge a part icular ruling, most trial court rulings other than the final judgment can potentially be challenged using a writ proceeding if the trial court made the type of legal error described above and the petitioner has no other adequate remedy at law. These writs are called “common law” writs. No. Different courts have the power (called “jurisdiction”) to consider requests for writs in different types of cases. The appellate division can only consider requests for writs in limited civil, misdemeanor, and infr action cases. A limited civil case is a civil case in which the amount claimed is $25,000 or less (see California Code of Civil Procedure sections 85 and 88). Misdemeanor cases are cases in which a person has been charged with or convicted of a crime for which the punishment can include jail time of up to one year but not time in state prison (see California Penal Code sections 17 and 19.2 ). (If the person was also charged with or convicted of a felony in the same case, it is considered a felony case, not a misdemeanor case.) Infraction cases are cases in which a person has been charged with or convicted of a crime for which the punishment can be a fine, traffic school, or some form of community service but cannot include any time in jail or prison (see Cal ifornia Penal Code sections 17 and 19.8). Examples of infractions include traffic tickets or citations for violations of some city or county ordinances. (If a person was also charged with or convicted of a misdemeanor in the same case, it is considered a m isdemeanor case, not an infraction case.) You can get copies of these statutes at any county law library or online at www.leginfo.ca.gov/calaw.html. The appellate division does NOT have jurisdiction to consider requests for writs in either unlimited civil cases (civil cases in which the amount claimed is more than $25,000) or felony cases (cases in which a person has been charged with or convicted of a crime for which the punishment can include time in state prison). R equests for writs in these cases can b e made in the Court of Appeal. The appellate division also does NOT have the jurisdiction to consider requests for writs of habeas corpus; requests for these writs can be made in the superior court. If you are asking for the writ, you are called the PETITIONER. You should read “Information for the Petition er,” beginning on page 4 . T he court the petitioner is asking to be ordered to do or not to do something is called the RESPONDENT. In appellate division writ proceedings, the trial court is the respo ndent. Any other party in the trial court case who would be affected by a ruling regarding the request for a writ is a REAL PARTY IN INTEREST. If you are a real party in interest, you should read “Information for a Real Party in Interest,” begin ning on page 9. You do not have to have a lawyer; you are allowed to represent yourself in a writ proceeding in the appellate division. But writ proceedings can be very complicated and you will have to follow the same rules that lawyers have to follow . If you have any questions about the writ procedures, you should talk to a lawyer. In limited civil cases and infraction cases, you must hire a lawyer at your own expense if you want one (the court cannot provide one). You can get information about finding a lawy er on the California Courts Online Self -Help Center at www.courtinfo.ca.gov/selfhelp/lowcost. Can the appellate division consider a request for a writ in any case? Who are the parties in a writ proceeding? Do I need a lawyer to represent me in a writ proceeding? 7 8 9 Inf or m ation on Wri t P roc eedi ngs in M isde m eanor , Inf raction, a nd Li m ited C ivil Ca ses ___ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ Rev. July 1, 201 0 Inf or m ation on W rit P roceedi ng s in APP-150-INFO, Page 4 of 12 Misd em ean or, Inf raction, and Lim ited Civil Cases AP P -150 -INF O This part of the informatio n she et is w ritten f or the pe titione r— the pa rty asking for the w rit. It expl ains som e of the rules and p roc edur es relating to ask ing for a writ. The information m ay also be he lpful to a real party in i nterest. There is m ore in formation for a real pa rty in interest starting on pa ge 9 of this information s he et. Only a pa rty in t he trial c ou rt p roc eeding — the plaint iff or de fend ant in a ci vil ca se or the de fend ant or prosecuting agenc y in a m isde meanor or infraction case — can ask for a w rit ch alleng ing a r uling on a motion t o d isqu alify a judg e (see C alifornia C od e of Civil Procedu re section 170 .3( d)). P arties are a lso usua lly the onl y one s tha t ask for w rits cha lleng ing ot her kinds of trial cou rt ruling s. How ever, in m ost cases, a pe rson w ho w as not a pa rty doe s h av e t he leg al right to ask for a w rit if tha t pe rson ha s a “be neficial interest ” i n the trial cou rt’s ruling . A “b en eficial interest” m eans that the person ha s a s pe cific right or interest affected by the ruling tha t goe s be yond t he gene ral rights or interest s t he publ ic m ay ha ve in t he ruling . To ask for a w rit you m ust ser ve and file a pe tition fo r a writ (see be low for an e xp lana tion o f how to “ serve and file” a pe tition). A petition is a f ormal req ue st tha t the appe llate d ivision i ssu e a w rit. A pe tition for a w rit expl ains to the appe llate di vision w ha t ha ppe ne d i n the trial cou rt, w hat legal e rror you ( the petitione r) be lieve the trial cou rt m ade , w hy you ha ve no o the r ade qua te remedy at law, a nd w ha t or de r you a re reque sting the appe llate d ivision t o m ak e. If you a re r epre sen ted by a l aw yer, y our law yer w ill prepa re your petition for a writ. If you a re not represented by a lawyer, y ou m ust us e Petition f or W rit (Misde meanor , Infrac tion, or Limited C ivil C ase) (form AP P-151) to p repare your petition. Y ou c an g et form you t o f ill in the informatio n t ha t ne eds to be in a w rit pe tition. a. Descr ipt ion of your int er est in t he t rial cour t’s ruling Your pe tition ne eds to t ell the app ellate di vision w hy you ha ve a r ight to a sk for a w rit in the ca se. A s discu ssed a bov e, usua lly on ly a pe rson w ho w as a pa rty in t he t rial cour t case — the pl aint iff or de fenda nt in a civil case or the de fenda nt or prosecuting agenc y in a misde meanor or i nfraction case — ask s f or a w rit cha lleng ing a r uling in t hat case. I f you w ere a pa rty in the trial cou rt case, say that in y our pe tition. I f you w ere not a party, y ou w ill need to de scribe w ha t “bene ficial interest” you ha ve in t he trial court’s ruling . A “be ne ficial interest” m eans tha t you ha ve a spe cific r ight or i nterest affect ed by the ruling that goe s beyond t he gene ral rights or interest s t he publ ic m ay ha ve i n t he ruling . T o show the appe llate division that you ha ve a be ne ficial interest in t he ruling you w ant to c ha lleng e, you must de scribe how the ruling w ill affect you i n a direct and n eg ative w ay . b. Descr ipt ion o f the legal er ror you bel iev e t he trial cou rt m ade Your pe titio n w ill n eed to t ell the appe llate di vision w ha t leg al error you be liev e t he trial co urt m ade . N ot ev ery mistak e a t rial cou rt m ight m ake can be ad dre sse d by a writ. Y ou m ust show tha t the trial court m ade one of the follow ing type s of legal errors: • The trial c ourt ha s a legal d uty to a ct bu t: o Refuses t o a ct o Has not do ne w hat the law say s i t m ust do o Has ac ted in a w ay the l aw say s i t doe s not ha ve the pow er to a ct • The trial court ha s pe rformed or says it is going to pe rform a jud icial func tion (like de ciding a pe rson ’s rights unde r law in a pa rticular case) in a w ay tha t the cour t doe s no t ha ve the legal pow er to do. To show the app ellate division t ha t the trial c our t m ade one of the se legal errors, y ou w ill ne ed t o: • Show tha t the trial cour t has the legal dut y or the pow er to a ct or no t act in a pa rticular w ay. Y ou w ill ne ed to t ell the ap pe llate d ivision w ha t leg al W ho can as k f or a writ? How do I a sk for a writ? How do I pr epa re a writ p etition? 10 11 12 IN FOR M ATION F OR T HE P ETIT ION ER This form ask s AP P-151 a t any cou rtho use or cou nty law library. Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 5 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO authority —what constitutional provi sion, statute, rule, or published court decision—establishes the trial court’s legal duty or power to act or not act in that way. • Show the appellate division that the trial court has not acted in the way that this legal authority says the court is require d to act. You will need to tell the appellate division exactly where in the record of what happened in the trial court it shows that the trial court did not act in the way it was required to. c . Description of why you need the writ One of the most import ant parts of your petition is explaining to the appellate division why you need the writ you have requested. Remember, the appellate division does not have to grant your petition just because the trial court made an error. You must convince the appellate d ivision that it is important for it to issue the writ. Your petition needs to show that a writ is the only way to fix the trial court’s error . To convince the court you need the writ , you will need to show the appellate division that you have no way to fi x the trial court’s error other than through a writ (this is called having “no adequate remedy at law”). This will be hard if the tria l court’s ruling can be appealed. If the ruling you are challenging can be appealed, either immediately or as part of an appeal of the final judgment in your case, the appellate division will generally consider this appeal to be a good enough way to fix the trial court’s ruling (an “adequate remedy”). To be able to explain to the appellate division why you do not have an ade quate remedy at law, you will need to find out if the ruling you want to challenge can be appealed, either immediately or as part of an appeal of the final judgment . Here are some trial court rulings that can be appealed. There are laws (statutes) that sa y that certain kinds of trial court rulings (“orders”) can be appealed immediately. In limited civil cases, California Code of Civil Procedure section 904.2 lists orders that can be appealed immediately, including orders: • Changing or refusing to ch ange the place of trial (venue) • Granting a motion to quash ser vice of summons • Granting a motion to stay or dismiss the act ion on t he ground of inconvenient forum • Granting a new trial • Denying a motion for judgm ent notwithstanding the verdict • Granting or dissol ving an injunction or refusing to grant or dissolve an injunction • Appointing a receiver • Made after final judgment in the case In misdemeanor and infraction cases, orders made after the final judgment that affect the substantial rights of the defendant can be appealed immedia tely (California Penal Code section 1466) . In misdemeanor cases, o rders granting or denying a motion to suppress evidence c an also be appealed immediately (California Penal Code section 1538.5(j)) . You can get copies of these statut es at any county law library or online at www.leginfo.ca.gov/calaw.html. You should also check to see if there are published court decisions that indicate whether you can or must use an appeal or a writ petition to challenge the type of ruling you want to challenge in your case. If the ruling can be appealed, you will need to show that an appeal will not fix the trial court’s error . If the trial court ruling you want to challenge can be appealed, you will need to show the appellate division why that appeal is not good enough to fix the trial court’s error. To do that, you will need to show the appellate division how you will be harmed by the trial court’s error in a way that cannot be fixed by the appeal if the appellate division does not issue the writ (this is called “irreparable” injury or harm ). For example, because of the time it takes for an appeal, the harm you want to prevent may happen before an appeal can be finished. Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 6 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO d . Description of the order you want the appellate division to make Your petit ion needs to describe what you are asking the appellate division to order the trial court to do or not do. Writ petitions usually ask that the trial court be ordered to cancel ( “vacate” ) its ruling, issue a new ruling, or not take any steps to enforce its ruling. If you want the appellate division to order the trial court not to do anything more until the appellate division decides whether to grant the writ you are requesting, you must ask for a “stay.” If you want a stay, you should first ask the trial court for a stay. You should tell the appellate division whether you asked the trial court for a stay. If you did not ask the trial court for a stay, you should tell the appellate division why you did not do this. If you ask the appellate division for a st ay, make sure you also fill out the “Stay r equested” box on the first page of the Petition for Writ (Misdemeanor, Infraction, or Limited Civil Case) (form APP-151). e . Verifying the petition Petitions for writs must be “verified.” This means that either the petition er or the petitioner’s attorney must declare under penalty of perjury that the facts stated in the petition are true and correct , must sign the petition, and must indicate the date that the petition was signed. On the last page of the Petition for Writ (Misdemeanor, Infraction, or Limited Civil Case) (form APP-151), there is a place for you to verify your petition. Y es. Along with the petition, you must serve and file a record of what happened in the trial court (see below for an explanati on of how to serve and file the petition). Since the appellate division judges were not there in the trial court, a record of what happened must be sent to the appellate division for its review. The materials that make up this record are called “supporting documents.” What needs to be in the supporting documents: The supporting documents must include: • A record of what was said in the trial court about the ruling that you are challenging (this is called the “oral proceedings”) and • Copies of certain importa nt documents from the trial court. Read below for more information about the se two parts of the supporting documents. Record of the oral proceeding s: There are several ways a record of what was said in the trial court may be provided to the appellate div ision: • A transcript —A transcript is a written record (often called the “verbatim” record) of the oral proceedings in the trial court. If a court reporter was in the trial court and made a record of the oral proceedings, you can have the court reporter prepare a transcript of those oral proceedings, called a “reporter’s transcript,” for the appellate division. If a reporter was not there , but the oral proceedings were officially recorded on approved electronic recording equipment, you can have a transcript p repared for the appellate division from the official electronic recording of these proceedings. You (the petitioner) must pay for preparing a transcript, unless the court orders otherwise. • A copy of an electronic recording —If the oral proceedings were off icially recorded on approved electronic recording equipment, the court has a local rule for the appellate division permitting this recording to be used as the record of the oral proceedings, and all the parties agree ( “stipulate ”), a copy of the official e lectronic recording itself can be used as the record of the oral proceedings instead of a transcript . You (the petitioner) must pay for preparing a copy of the official electronic recording, unless the court orders otherwise. • A summary —If a transcript or official electronic recording of what was said in the trial court is not available, your petition must include a declaration (a statement signed by the petitioner under penalty of perjury) either: o Explaining why the transcript or official electronic recor ding is not available and providing a fair summary of the proceedings, Is there anything else that I need to serve and file with my petition ? 13 Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 7 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO including the petitioner’s arguments and any statement by the court supporting its ruling or o Stating that the transcript or electronic recording has been ordered, the date it was ordered, and the date it is expected to be filed. Copies of documents from the trial court : Copies of the following documents from the trial court must also be included in the supporting documents: • The trial court ruling b eing challenged in the petition • All do cuments and exhibits submitted to the trial court supporting and opposing the petitioner’s position • Any other documents or portions of documents submitted to the trial court that are necessary for a complete understanding of the case and of the ruling bei ng challenged What if I cannot get copies of the documents from the trial court because of an emergency? Rule 8.931 of the California Rules of Court provides that in extraordinary circumstances the petition may be filed without copies of the documents from the trial court . If the petition is filed without these documents, you must explain in your petition the urgency and the circumstances making the documents available. Format of the supporting documents : Supporting documents must be put in the format required by rule 8.931 of the California Rules of Court . Among other things, there must be a tab for each document and an index listing the documents that are included. You should carefully read rule 8.931. You can get a copy of rule 8.931 at any courthouse or county law library or online at www. courtinfo.ca.gov/rules. Yes. For statutory writs, the statute usually sets the deadline for serving and filing the petition. Here is a list of the deadlines for filing petitions for some of the most common statutory writs (you can get copies of these statutes at any county law library or online at www.leginfo.ca.gov/calaw.html ). Statutory Writ Filing Deadline Writ challenging a ruling on a motion to disqualify a judge (see California Code of Civil Procedure section 170.3(d)) 10 days after notice to the parties of the decision Writ challenging the denial of a motion for summary judgment (see California Code of Civil Procedure section 437c(m)(l)) 20 days after service of written notice of entry of the order Writ challenging a ruling on a motion for summary adjudication of issues (see California Code of Civil Procedure section 437c(m)(l)) 20 days after service of written notice of entry of the order For common law writs or statutory writs where the statute does not set a deadline, you should file the petition as soon as possible and not later than 30 days after the court makes the ruling that you are challenging in the petition. While there is no absolute deadline for filing these petitions, writ petitions are us ually used when it is urgent that the trial court’s error be fixed. Remember, the court is not required to grant your petition even if the trial court made a n error . If you delay in filing your petition, it may make the appellate division think that it is not really urgent that the trial court’s error be fixed and the appellate division may deny your petition. If there are extraordinary circumstances that delayed the filing of your petition, you should explain these circumstances to the appellate division i n your petition. Rule 8.931(d) requires that the petition and one set of supporting documents be served on any named real party in interest and that just the petition be served on the respondent trial court. “Serving” a petition on a party means tha t you must: • Have somebody over 18 years old who is not a party to the case— so not you—mail or deliver (“serve”) the petition to the real party in interest and the respondent court in the way required by law . Is there a deadline to ask for a writ ? How do I “serve” my petition ? 14 15 Inf or m ation on Wri t P roc eedi ngs in M isde m eanor , Inf raction, a nd Li m ited C ivil Ca ses ___ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ ___ __ ___ __ __ ___ __ Rev. July 1, 201 0 Inf or m ation on W rit P roceedi ng s in APP-150-INFO, Page 8 of 12 Misd em ean or, Inf raction, and Lim ited Civil Cases AP P -150 -INF O • Mak e a r ecor d t hat the pe tition ha s be en s erved . T his reco rd is cal led a “proof of ser vice.” Proof of Se rvice (Appe lla te D ivision) (fo rm A PP-109) can b e us ed t o make t his r eco rd. The pr oof of service m ust show who s erved the petition, w ho w as served w ith t he pe tition, how the pe tition w as served ( by m ail or in pe rson), and t he date the pe tition w as served. You c an g et m ore information a bou t how to s erve cou rt doc um ents and pr oof of service from What Is Proo f of Se rvice? (form A PP-109 -INF O) and on t he California Cour ts Online Self-Help C enter at www.c ou rtinfo.c a.go v /selfhelp/low cos t/getread y.htm#servi ng. To file a pe tition for a w rit in t he app ellate division, y ou must br ing or m ail the origina l petition, inc lud ing the suppor ting doc um ents, a nd the proo f of service to t he clerk for the appe llate di vision o f th e sup erior cou rt tha t made the ruling you a re cha lleng ing . If the sup erior cou rt ha s m ore than one cou rthou se location, you s houl d c all the clerk at the courthous e whe re the ruling you a re cha lleng ing w as m ade to ask w he re t o file y our petition. You s hou ld m ake a copy of all the doc um ents you a re plann ing to file for your ow n r ecords be fore you f ile the m w ith t he court. It is a good i de a to b ring or m ail an extra copy of the pe tition to the clerk w he n y ou f ile your origina l and a sk t he clerk t o stamp t his copy to show that the origina l has be en filed. The re is no f ee to f ile a pe tition for a w rit in a misde meanor or infraction case, but the re is a fee to file a pe tition for a w rit in a lim ite d civil case. Y ou shou ld ask the clerk for the app ellate d ivision w he re y ou a re filing the pe tition w ha t this fee is. If you c annot afford to pa y this filing fee, y ou c an ask the co urt to w aive t his fee. To do t his, y ou m ust fill out an App lication f or Waiver of C ou rt Fees a nd Costs (fo rm FW -001) . Y ou can get form F W -001 a t any cour thou se or cou nty law W ithin 10 da ys after you s erve and f ile your pe tition, t he respo nde nt or any real pa rty in i nterest can s erve and file prelimina ry oppos ition to the pe tition . W ithin 10 da ys after an oppo sition i s filed, you may serve and f ile a reply to tha t op pos ition. The app ellate di vision doe s not ha ve to w ait for an oppos ition o r reply be fore it can act on a pe tition for a writ, how ever. W ithou t w aiting , the app ellate division can: a. Issue a st ay b. Sum marily de ny the pe titio n c. Issue an a lterna tive w rit or orde r to show cause d. Notify th e pa rties th at it is cons idering is suing a preem ptor y w rit in t he first ins tanc e Read be low for m ore information a bou t the se opt ion s. a. Stay of trial cou rt pr oc eedi ngs A st ay is an or de r from the appe llate division t elling th e trial cou rt not to do any thing more unt il the appe llate division de cide s w he the r to grant your pe tition. A stay put s the trial cou rt pr oceeding s on t empor ary hol d. b. Sum mar y deni al A “sum mary de nial” m eans tha t the app ellate d ivision de nies the pe tition w ithou t de ciding w he ther the trial cour t m ade the leg al error claimed by the petitione r or whe the r the w rit requ ested by the pe tition er shou ld be issu ed ba sed o n t hat error. Rem embe r, e ven i f the trial cour t m ade a l eg al er ror, the appe llate di vision can de cide no t to con sider tha t error now but to wait and cons ide r the er ror as p art of any appe al from the fina l judg ment. N o r easons need to be given f or a sum mary de nial. Most pe titions for w rits are denied i n t his w ay. c. Alter na tive writ or or de r to sho w cause An “ alterna tiv e w rit” is an orde r telling th e trial c our t eithe r to do w ha t the pe titio ner has r eque sted i n the pe tition ( or som e modi fied form of w ha t the pe tition er How do I file m y pe tition ? Do I ha ve to pa y to f ile a pe tition ? W hat hap pen s af ter I file m y petition? 16 17 18 library. You can file this application either before you file your petition or with your petition. The court will review this application and decide whether to waive the filing fee. Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 9 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO requested) or to show the appellate division why the t rial court should not be ordered to do what the petitioner requested. An “order to show cause” is similar; it is an order telling the trial court to show the appellate division why the trial court should not be ordered to do what the petitioner requested i n the petition (or some modified form of what the petitioner requested). The appellate division will issue an alternative writ or an order to show cause only if the petitioner has shown that he or she has no adequate remedy at law and the appellate divisio n has decided that the petitioner may have shown that the trial court made a legal error that needs to be fixed. If the appellate division issues an alternative writ and the trial court does what the petitioner requested (or a modified form o f what the petitioner requested as ordered by the appellate division), then no further action by the appellate division is needed and the appellate division may dismiss the petition. If the trial court does not comply with an alternative writ , however, or if the appellate division issues an order to show cause, then the respondent court or a real party in interest can file a response to the appellate division’s order (called a “return”) that explains why the trial court should not be ordered to do what the petitioner r equested. The return must be served and filed within the time specified by the appellate division or, if no time is specified, within 30 days from the date the alternative writ or order to show cause was issued. The petitioner will then have an opportunity to serve and file a reply within 15 days after the return is filed. The appellate division may set the matter for oral argument. When all the papers have been served and filed (or the time to serve and file them has passed) and oral argument is completed, the appellate division will decide the case. d. Peremptory writ in the first instance A “peremptory writ in the first instance” is an order telling the trial court to do what the petitioner has requested (or some modified form of what the petitioner req uested) that is issued without the appellate division first issuing an alternative writ or order to show cause. It is very rare for the appellate division to issue a peremptory writ in the first instance, and it will not do so without first notifying the p arties and giving the respondent court and any real party in interest a chance to file an opposition. The respondent court or a real party in interest can file a response to the appellate division’s notice (called an “opposition”) that explains why the tri al court should not be ordered to do what the petitioner has requested. The opposition must be served and filed within the time specified by the appellate division or, if no time is specified, within 30 days from the date the notice was issued. The petitioner will then have a chance to serve and file a reply within 15 days after the opposition is filed. The appellate division may then set the matter for oral argument. When all the papers have been served and filed (or the time to serve and file them has passed) and oral argument is completed, the appellate division will decide the case. If the court denies your petition, it may be helpful to talk to a lawyer. In a limited civil or infraction case, you must hire a lawyer at your own expense if you want one (the court cannot provide one). You can get information about finding an attorney on the California Courts Online Self -Help Center at www.courtinfo.ca.gov /selfhelp/lowcost. This part of the information sheet is written for a real party in inter est—a party from the trial court case other than the petitioner who will be affected by a ruling on a petition for a writ . It explains some of the rules and procedures relating to responding to a petition for a writ. The information may also be helpful to the petitioner. You do not have to do anything. The California Rules of Court give you the right to file a preliminary opposition to a petition for a writ within 10 days after the petition is served and filed, but you are not required to do this. The appellate division can take certain actions without waiting for any opposition, including: What should I do if the court denies my petition? I have received a copy of a petition for a writ in a case in which I am a party. Do I need to do anything? 19 2 0 INFORMATION FOR A REAL PARTY IN INTEREST Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 10 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO • Summarily denying the petition • Issuing an alternat ive writ or order to show cause • Notifying the parties that it is considering issuing a peremp tory writ in the first instance Read the response to question for more information about these options. Most petitions for writs are summarily denied, often within a few days after they are filed. If you have not already received something from the appellate div ision saying what action it is taking on the petition, it is a good idea to call the appellate division to see if the petition has been denied before you decide whether and how to respond. This would also be a good time to talk to a lawyer. You do not have to have a lawyer; you are allowed to represent yourself in a writ proceeding in the appellate division. But writ proceedings can be very complicated and you will have to follow the same rules that lawyers have to follow . If you have any questions about w rit proceedings or about whether and how you should respond to a writ petition, you should talk to a lawyer. In a limited civil case or infraction case, you must hire a lawyer at your own expense if you want one (the court cannot provide one). You can get information about finding an attorney on the California Courts Online Self - Help Center at www.courtinfo.ca.gov/selfhelp/lowcost. If the petition has not already been summarily denied, you may, but are not required to, serve and file a preliminary oppositi on to the petition within 10 days after the petition was served and filed. In general, it is a good idea to consider filing a preliminary opposition if the petition misstates the facts or if you think the petition shows that the trial court made a legal error that may need to be fixed. However, the appellate division will not grant a writ without first issuing an alternative writ, an order to show cause, or a notice that it is considering issuing a peremptory writ. In all these circumstances, you will get n otice from the court and have a chance to file a response. A preliminary opposition is therefore typically used to explain to the appellate division why you believe it should not grant an alternative writ or order to show cause. If you decide to file a pr eliminary opposition, you must serve that preliminary opposition on all the other parties to the writ proceeding. “Serving and filing” an opposition means that you must: • Have somebody over 18 years old who is not a party to the case— so not you—mail or deliver (“serve”) the preliminary opposition to the other parties in the way required by law . • Make a record that the preliminary opposition has been served. This record is called a “proof of service.” Proof of Service (Appellate Division) (form APP -109) can b e used to make this record. The proof of service must show who served the preliminary opposition, who was served with the preliminary opposition, how the preliminary opposition was served (by mail or in person), and the date the pr eliminary opposition was served. • File the original preliminary opposition and the proof of service with the appellate division . You should make a copy of the preliminary opposition you are planning to file for your own records before you file it with the court. It is a good idea to bring or mail an extra copy of the preliminary opposition to the clerk when you file your original and ask the clerk to stamp this copy to show that the original has been filed. You can get more information about how to serve court documents and proof of service from What Is Proof of Service? (form APP -109 -INFO) and on the California Courts Online Self -Help Center at www.courtinfo.ca.gov /selfhelp/lowcost/getready.htm#serving. Yes. Unless the trial court has already done what the alternative writ told it to do, you should serve and file a response called a “return.” As explained above, the appellate division will issue an alternative writ or an order to show cause only if the appellate division has decided that the petition er may have shown tha t the trial court made a legal error that 21 I have received a copy of an alternative writ or an order to show cause issued by the appellate division. Do I need to do anything? 18 Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 11 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO needs to be fixed. An “alternative writ” is an order telling the trial court either to do what the petitioner has requested in the petition (or some modified form of what the petitioner requested) or to show the appellate division why the trial court should not be ordered to do what the petitioner requested. An “order to show cause” is similar; it is an order telling the trial court to show the appellate division why the trial court should not be ordered to do what the petitioner requested in the petition (or some modified form of what the petitioner requested ). If the appellate division issues an alternative writ and the trial court does what the petitioner requested (or a modified form of what the petitioner reque sted as ordered by the appellate division), then no further action by the appellate division is needed and the appellate division may dismiss the petition. If the trial court does not comply with an alternative writ, however, or if the appellate division i ssues an order to show cause, then the respondent court or the real party in interest may serve and file a response to the appellate division’s order, called a “return.” A return is your argument to the appellate division about why the trial court should not be ordered to do what the petitioner has requested. If you are represented by a lawyer in the writ proceeding, your lawyer will prepare your return. If you are not represented by a lawyer, you will need to prepare your own return. A return is usually a legal response called an “answer.” An answer is used to admit or deny the facts alleged in the petition, to add to or correct the facts , and to explain any legal defenses to the legal arguments made by the petitioner. You should read California Code of C ivil Procedure sections 430.10–430.80 for more information about answers. You can get copies of these statutes at any county law library or online at www.leginfo.ca.gov/calaw.html . A return can also include additional supporting documents not already filed by the petitioner. If you do not file a return when the appellate division issues an alternative writ or order to show cause, it does not mean that the appellate division is required to issue the writ requested by the petitioner. However, the appellate di vision will treat the facts stated by the petitioner in the petition as true, which makes it more likely the appellate division will issue the requested writ. Unless the appellate division sets a different filing deadline in its alternative writ or order to show cause, you must serve and file your return within 30 days after the appellate division issues the alternative writ or order to show cause. The return must be served on all the other parties to the writ proceeding. “Serving and filing” the return means that you must: • Have somebody over 18 years old who is not a party to the case— so not you—mail or deliver (“serve”) the return to the other parties in the way required by law . • Make a record that the return has been served. This record is called a “proof of service.” Proof of Service (Appellate Division) (form APP -109) can be used to make this record. The proof of service must show who served the return, who was served with the return, how the return was served (by mail or in person), and the date the ret urn was served. • File the original return and the proof of service with the appellate division . You should make a copy of the return you are planning to file for your own records before you file it with the court. It is a good idea to bring or mail an extr a copy of the return to the clerk when you file your original and ask the clerk to stamp this copy to show that the original has been filed. You can get more information about how to serve court documents and proof of service from What Is Proof of Service? (form APP -109 -INFO) and on the California Courts Online Self -Help Center at www.courtinfo.ca.gov /selfh elp/lowcost/getready.htm#serving. Yes. You should serve and file a response called an “opposition.” As explained in the answer to question , a “peremptory writ in the first instance” is an order telling the trial court to do what the petitioner has requested (or 22 I have received a copy of a notice from the appellate division indicating it is considering issuing a peremptory writ in the first instance. Do I need to do anything? 18 Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases ___________________________________________________________________________ _ Rev. July 1, 2010 Information on Writ Proceedings in APP-150- INFO, Page 12 of 12 Misdemeanor, Infraction, and Limited Civil Cases APP -150 -INFO some modified form of what the petitioner requested as ordered by the appellate division) that is issued without the appella te division first issuing an alternative writ or order to show cause. The appellate division will not issue a peremptory writ in the first instance without first giving the parties notice and a chance to file an opposition. However, when the appellate divi sion issues such a notice, it means that the appellate division is strongly considering granting the writ requested by the petition er. An opposition is your argument to the appellate division about why the trial court should not be ordered to do what the petition er has requested. If you are represented by a lawyer in the writ proceeding, your lawyer will prepare your opposition. If you are not represented by a lawyer, you will need to prepare your own opposition. Like a return discussed above, an opposition is usually a legal response called an “answer.” An answer is used to admit or deny the facts alleged in the petition, to add to or correct the facts, and to explain any legal defenses to the legal arguments made by the petitioner. You should read Califor nia Code of Civil Procedure sections 430.10–430.80 for more information about answers. You can get copies of these statutes at any county law library or online at www.leginfo.ca.gov/calaw.html. Unless the appellate division sets a different deadline in its notice that it is considering issuing a peremptory writ, you must serve and file your opposition within 30 days after the appellate division issues the notice. The opposition must be served on all the other parties to the writ proceeding. “Serving and fi ling” the opposition means that you must: • Have somebody over 18 years old who is not a party to the case— so not you—mail or deliver (“serve”) the opposition to the other parties in the way required by law . • Make a record that the opposition has been served . This record is called a “proof of service.” Proof of Service (Appellate Division) (form APP -109) can be used to make this record. The proof of service must show who served the opposition, who was served with the opposition, how the opposition was served (by mail or in person), and the date the opposition was served. • File the original opposition and the proof of service with the appellate division . You should make a copy of the opposition you are planning to file for your own records before you file it wi th the court. It is a good idea to bring or mail an extra copy of the opposition to the clerk when you file your original , and ask the clerk to stamp this copy to show that the original has been filed. You can get more information about how to serve court documents and proof of service from What Is Proof of Service? (form APP -109 -INFO) and on the California Courts Online Self -Help Center at w ww.courtinfo.ca.gov /selfhelp /lowcost/getready.htm#serving. After you file a return or opposition, the petitioner has 15 days to serve and file a reply. The appellate division may also set the matter for oral argument. When all the papers have been filed (or the time to file them has passed) and oral argument is completed, the appellate division will decide the ca se. 23 What happens after I serve and file my return or opposition?