Palma, Alt Writs, and the OSC: Reading the Tea Leaves After Your Petition Lands with Judge Fay

Tim Kowal Welcome to the California Appellate Law Podcast. I'm Tim Kowal, 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 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, 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 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 just wait for a judgment in 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 comes now or later. that's just legal relief and no we're not gonna 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 there's an room for room for lawyerly argument there.

Jeffrey Lewis Yeah, except when it does.

Tim Kowal how do you how do you rate that one?

Tom Fay there's two things to be said about that The 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 to 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 going to 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 going to get a coherent result out of the trial. Whoever appeals is going to 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 is 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 going to consume six months of courtroom time in the complex department, right? And there's going to be 15 lawyers in the room from 15 different parties, and we're going to spend eight figures to try this thing. 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 g 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 at but it's the point is the issues are straightforward and well understood. I don't wanna 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 does that analysis bleed into the money is typically not grounds for irreparable harm? If hey, 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 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.

Tom Fay 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, writ relief always discretionary. So i 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 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 get at their get at their assets because they don't have any, that sort of situation. That kind of argument can work. It 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 part it's about couching your argument in those terms and understanding it's not enough to say this is a really big number. You gotta say this is going to be unfixable. I'm I'm 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 th people most of the time, in my experience at least.

Tim Kowal 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.

Tom Fay Absolutely. I think that's I think that's a fair way to put it.

Tim Kowal Okay. So the so the basic elements again, irreparable injury, absence of 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 fifty-nine to file this and you're asking for relief tomorrow. So, you might just not. Meet that discretionary prong and and you're you're turning the panel off.

Tom Fay I think that's true and 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 the statutory or common law deadlines. and they've demonstrated a quite convincing case for irreparable harm, but 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 suffer? And in those sort of maybe it is, maybe it isn't cases, if you've waited 59 days, that is going to suggest to us that maybe this isn't quite as big of an emergency as you're making it out.

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

Tom Fay That's right. I think economists call that revealed preferences, right? You can say it's important and it's really urgent, as the attorney, I should say, if you've been thinking, I some meat and confers to write, I'll get to this writ petition when I get to it, that tells me maybe it's not so urgent.

Jeffrey Lewis Yeah. Your Your Honor, that makes a lot of sense to me on common law writs with a sixty day deadline. When you're dealing with statutory writs with much shorter deadlines, does the Court of Appeal take negative inference if you wait till day nineteen as opposed to day ten out of twenty?

Tom Fay Not really. I mean really what we're talking about is mostly the common law writs, at least in my experience. But this is again the way I look at it personally. as you say, the statutory writs almost always have a ten or twenty day deadline. And it from my experience in private practice working on those, it's always a scramble getting those out the door just within the ten or twenty days. And so I don't think anybody is gonna 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, no. 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 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, in we're gonna get to petitions for supersedious later, but just for the uninitiated, It's called a petition, but it's not an original proceeding. It's filed is basically a motion for stay in a inside a direct appeal. So there's another pace case number pending. And the argument is that 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 gonna happen is on, June 29th.

Tom Fay Exactly.

Tim Kowal What if on june thirtieth, 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.

Tom Fay 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? F the first thing that might have happened is we just don't think you've met the showing that the your appeals 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, pick using your dates, after June 29th, there's still a life question here for one reason or another. Perhap 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 work up we can. And if we've disagreed with you, I agree with you. we're conscious of the 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.

Tim Kowal Yeah the

Jeffrey Lewis See, Tim, the people in the appellate court, they're not sinister at all. You've got it all wrong. They're kind.

Tim Kowal No, no, I'm saying my adversaries are sinister.

Tom Fay Yeah, they they're the ones who are gonna seize on your contention that it's moot. Right.

Tim Kowal Yeah. I'm glad that the 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 the next batch of writ nuts and bolts on procedure. and Judge Fay, 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. so the court, if it's gonna vacate or otherwise review the order, you gotta 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, 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, 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 Yeah anything else to add to that, Judge Fay?

Tom Fay 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 the whole sorted 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 and or 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 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, is that not? in the federal system as I understand it.

Jeffrey Lewis some. Yeah.

Tom Fay 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 gonna 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 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. typically, I think it's an all caps, bold, the the rule against promiscuous emphasis. in typography usually does not apply to to 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 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.

Tom Fay That's right. And the stipulation to electronic service isn't just the normal stipulation that you get w by virtue of filing electronically in the trunk or you have 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. 'Cause there are the people who see first. That lets our clerks know, I need to get this right away upstairs to central staff, to the writ 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, is to give us a heads up. Because the thing we fear is that we miss one of these that lindigates, 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 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 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 about right?

Tom Fay 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'll set aside the formatting rules, just get it straight to the writs people and and we'll take it from there.

Tim Kowal 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 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 the other side files a writ petition is let's not bother, because the the Court of Appeal can't grant a peremptory writ without giving us an opportunity to oppose, so let's just see if the court is interested in hearing from us first.

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

Tom Fay 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 reasons for that are obvious. I think that's to my mind, at least that's the 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. we'll 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

Jeffrey Lewis So Your Honor, how often would you estimate that you get unsolicited oppositions?

Tom Fay numbers are hard to estimate, but it does happen not infrequently. I I would say it happens fairly frequently. And

Jeffrey Lewis Okay.

Tom Fay Usually that's done by an attorney on the other side who perceives accurately or otherwise that the writ petition 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 gonna deny it, right? that's usually the tenor of those of those documents.

Jeffrey Lewis Got it. Got it.

Tim Kowal I'm curious, Jeff, about your example. because Judge Fay, 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 we're 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.

Tom Fay I can't speak to how other districts do it. that it is our practice to follow Rule one B 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 written 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 gonna 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 one B 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 the rules differently. I don't know.

Tim Kowal Well, that takes us into available remedies. so ev every mandamus petition ends in one of two ways: denial or issue 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 and or 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?

Tom Fay 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. That says, hey, we think the trial court may have erred, and here's 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 gonna do that. That's a suggestive Palma notice. that now the Palma case 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 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 respondent court will show cause, but actually it's the real party in interest that's gonna file the return. And we just basically set it up for briefing. We're gonna have typically oral argument, and then we're gonna 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 So if you're the petitioner, you don't really want the alternative writ. You want the

Tom Fay 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.

Tim Kowal Yeah.

Jeffrey Lewis Ha ha

Tim Kowal Yeah, but the yeah.

Tom Fay Because it suggests that maybe, not always, but maybe the panel is thinking of issuing a published opinion explaining why real party and interest is right and why the trial court was actually right to do this.

Tim Kowal that happens when there's an order to show cause or or an alternative writ?

Tom Fay Order show cause. so the alternative writ says trial court change your mind or show cause. 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 gonna have the hearing, we're gonna have the briefing, we're gonna 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 Yeah. Right. potential downside, just it's something to be aware of with an alternative writ. is 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 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 gonna let it ride, not gonna change it. And the the court came down with a preemptory writ overruling Judge Birdsong. And But I thought the 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 maybe I think in that particular case, 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.

Tom Fay 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 Cal.App.4th 1180 Okay. And in this case, this is a second district case, if I remember correctly, somebody petitions, makes files a writ petition in the Court of Appeal. The 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. Positioner files a second writ petition. 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.

Tim Kowal It yeah, it took three times around the block on that same issue.

Tom Fay 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 goal game for anybody.

Tim Kowal Yeah. Yeah. it's also a testament to the work that appellate courts do and appellate attorneys do and and 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 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.

Tom Fay That's right. sometimes they tell us they tell the Court of Appeal we're wrong. Happens.

Tim Kowal sometimes it happens maybe two or three different writ petitions going around and then finally an appeal on the same issue has happened in that case you just described. what was that case out of the four third years ago it was the crocodile tears case where the trial judge said, Yeah, I would deny your request for relief from default. because I'm just not persuaded. But I know those judges at the at the four third, 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 judgment to fall back on, not just your prognostication of what you think we're gonna do.

Jeffrey Lewis Yeah.

Tom Fay I think that's right. I think that's right.

Jeffrey Lewis Suit up, your honor.

Tim Kowal Yeah.

Tom Fay Yeah.

Tim Kowal we we have to get to to supersedious. as we mentioned, a petition for a writ of supersedious is 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 C C P nine twenty-three. The Court of Appeal, frankly, I often forget this. I think of supersedious 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 supersedious and how the writ panel processes those.

Tom Fay 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 can 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 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 Okay. And so is it as a matter of the definition the hygiene of definition, is it a petition? How is it a petition if it's not an original proceeding?

Tom Fay I try not to think too hard about that, to be honest with you. my approach to it is a petition for a rid 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 rid of supersedious, in the same sense that by the way, a demur is a pleading. It's not a motion, it's a bleeding. 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.

Tim Kowal Yeah. Mm-hmm.

Tom Fay That's what it is.

Tim Kowal That's a that's a good analog. it every other state calls it and jurisdiction calls it a motion to dismiss, but we in California called a demur.

Tom Fay That's right. And and not only do we call it a demur, it's specifically listed in the Code of Silver 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. But again.

Tim Kowal Yeah, that's right. and so and supersedious, I I I think it's just Latin for stay But it's why it's not called a motion for stay is beyond me. Maybe that's why we get certified specialization in appeals.

Jeffrey Lewis Ha ha ha.

Tom Fay 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 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 I think writ petitions used to come in different flavors. There was petitions for writ of mandamus and writs of prohibitum, may maybe one or two others.

Tom Fay There still are, but I have never seen a writ petition denied for being of the wrong flavor. I've never seen that. I've never seen anyone try to argue that it should be, because why? So

Tim Kowal Yeah. Yeah, it's yeah, it should not be the label that controls. I stopped thinking too hard about that when I just call them all, petitions for writ of mandate. Okay, I've got I've got a few burning questions I wanted to cover in our last few moments here. these are 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 the abbreviation for number, at the top left corner of my writ petitions. is that needed?

Tom Fay the clerks are not gonna 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 N O, that's another Latin another a Latin artifact, if I'm not mistaken.

Tim Kowal 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?

Tom Fay 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 the writ proceedings regarding the code of civil procedures section one seventy point six disqualification thing around then judge then justice now retired justice Goethals in like twenty fourteen where the issue is one that

Jeffrey Lewis Right.

Tom Fay 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 makes

Jeffrey Lewis Your your honor, is that like a rule of decorum or civility that prohibits the Superior Court from doing that, or where where the source of that prohibition?

Tom Fay That's a good question. That's a great question that I don't have the answer to. 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.

Jeffrey Lewis I never heard that. Huh, I'm sure one of our listeners will weigh in and send us a an email. Sorry, Tim, go ahead.

Tim Kowal I was looking up one of my recent writ petitions where I have NO period at the left hand top left hand corner. The the actual file stamp puts the case number on the right hand corner, top right hand corner of the writ 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 where with where the stamp is actually gonna go.

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

Tim Kowal Right. yeah, it's like

Tom Fay I agree with that.

Tim Kowal yeah, 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 in a superior court pleading or answer. what about in a petition for supersedious? Do you need to number the paragraphs there?

Tom Fay yeah. the th 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 reasons you're describing because that's more like a a pleading. But you're right, 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 gonna 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 this state of play. I don't think it's required. I don't think setting it up in numbered paragraphs in that fashion is required. but I suppose I could be wrong.

Tim Kowal there is a a a response filed or an opposition to it, actually for that matter, what would a 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.

Tom Fay to a supersedious petition, I see them they're typically titled oppositions, yes.

Tim Kowal So along the same lines, you need a verification in a writ petition. what about in a petition for supersedious

Tom Fay 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. so you've gotta I think you've gotta do that.

Tim Kowal That's right. Yeah. So either verify it or or s submit it along with the declaration.

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

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

Tom Fay if you're not doing the numbered paragraphs in a petition for rid of supersedious, I don't see why you would necessarily need to do it that way. 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 mandanaus petition, I don't think they do. but like I said, we are not in the business, at least I at 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.

Jeffrey Lewis Or because you used cleaned up or not, Tim. They're not gonna deny you relief 'cause you use cleaned up. Yes, it has. I watch. It has.

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

Tim Kowal 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, 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 to ask the trial judge for a temporary stay. So that because we're gonna need to go in on a on a writ or a petition for supercedious, and we don't wanna make the writ panel have to put on another pot of coffee and 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 the do I have a skewed sample do you see that as a writ attorney?

Tom Fay 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 ten, fifteen, twenty 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 lispendants. 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 fifteen X party applications this morning, and you're telling me that the premise of your X party application is that I'm wrong. So no. and I understand that as well. but like the synopsis is it happens sometimes, not always. I don't I can't speak for why your sample looks the way it does.

Tim Kowal I lied. Here's really my last question. And it's it's also along the lines of of how trial attorney should 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 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 one sixty six point one orders?

Tom Fay Asked for it once as a private practitioner and was instantly and summarily denied. And again, 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 i 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 So if it's fair it's rarely requested, rarely granted. So may it may be too small a a sample size to make any prescriptions or advice on how it might play out in the Court of Appeal.

Tom Fay 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 gonna make its own mind up at the end of the day. So

Tim Kowal Well, Judge Fay, this has been very illuminating. I mean, writ practice is obviously a huge part of what we do as appellate attorneys. it is the most frantic part of what we do. It's sometimes the most unpleasant, but it 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 this discussion, our listeners will be able to bookmark it, listen to it again next time they have to prepare a writ petition. And Judge Fay, I'm grateful that you did not decide to back out after you became appointed to the bench, because now there's hundreds and thousands of attorneys who are better armed to to take you up on a writ if they don't like a ruling that you hand down.

Tom Fay I see it as it's a safety net for it, if I got it wrong, the the three really smart people are gonna tell me why I got it wrong, 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. it's great.

Jeffrey Lewis 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 thank you for your service. it's not easy to serve as a judge, so thank you in advance for that.

Tom Fay Thank you very much.

Tim Kowal Well, and we hope you'll come on again later on and share some your perspective once you've served 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 info@calpodcast.com in our upcoming episodes. Look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis It's See you next time.