Legal Writing for the Plaintiffs' Trial Bar

What is a Writ, and why would I ask the Court of Appeal to issue one?

As a practical matter, a writ is the way that parties involved in litigation in California can get appellate review of trial-court decisions before the entire lawsuit has been concluded with a final judgment, and therefore becomes appealable. Writs are rarely granted, because California follows the "one final judgment rule." This rule means that, in general, there is one, single, final judgment issued at the end of a lawsuit, and all of the trial court’s rulings will be reviewed on appeal after that judgment has been issued. Appellate review is therefore generally not available of the various trial-court decisions that are made before the lawsuit has concluded with a final judgment. Writs are an exception to the effect of the “one final judgment rule.”

Technically, a “writ” is an order issued by the reviewing court (typically the Court of Appeal) to an inferior tribunal, typically the Superior Court, directing it to do something that the reviewing court thinks that it is required to do (mandate) or forbidding it from doing something it is not permitted to do (prohibition). In practice, a writ is like an immediate appeal of a particular legal issue or ruling.

Ehrlich Law Firm wins writ proceeding invalidating Health Net arbitration agreement

The Court of Appeal in Los Angeles has reversed a trial court's order requiring that Mary Medeiros arbitrate her claims against Health Net, arising from the company's failure to provide her with timely medical care. Even though Health Net's enrollment form failed to comply with the mandatory disclosure requirements concerning arbitration clauses, the trial court ordered the case to arbitration. The Ehrlich Law Firm filed a writ of mandate, which was granted in a published opinion. (Medeiros v. Superior Court (Health Net) (2007) 146 Cal.App.4th 1008. Medeiros is a victory for public employees, because it held that health plans that provide coverage through public agencies must comply with the arbitration-disclosure requirements in the Health & Safety Code and the Insurance Code.

Writs are not easy to get

Writs are not easy to get. Article 6, section 10 of the California Constitution defines the relief available by writs as “extraordinary.” Likewise, the cases refer to these writs as “extraordinary writs” and note that, “. . . writ relief is deemed ‘extraordinary.’” (Science Applications Internat’l. Corp. v. Superior Court (1995)39 Cal.App.4th 1095, 1100.)  Writs are granted sparingly because they are viewed as something as an interruption in the orderly flow of litigation. As one court explained:

"[I]f it [writ review] were granted at the drop of a hat, it would interfere with an orderly administration of justice at the trial and appellate levels.... [¶] 'If the rule were otherwise, in every ordinary action a defendant whenever he chose could halt the proceeding in the trial court by applying for a writ ... to stop the ordinary progress of that action toward a judgment until a reviewing tribunal passed upon an intermediate question that had arisen.” (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272-1273.)

Commentators estimate that more than 90% of the writ petitions filed in the California system are summarily denied.  Yet, in California, there are between 5,000 and 7,800 published California decisions arising out of writ proceedings.  What kinds of issue warrant an application to an appellate court for a writ? The decision in Omaha Indemnity Co. v. Superior Court, 209 Cal.App.3d at 1273-1274, provides a useful list:

  • The issue presented in the petition should be of widespread interest, or present a significant and novel constitutional issue;
  • The trial court’s order has deprived the petitioner from presenting a substantial portion of the case;
  • There are conflicting trial court interpretations of the law that require resolution; or
  • The trial court’s order is clearly erroneous as a matter of law and substantially prejudices the petitioner’s case.

In addition to satisfying one or more of these criteria, the petitioner must overcome a further hurdle -- that the typical remedy for error committed by the trial court, an appeal, would not provide an adequate remedy. (Omaha Indemnity v. Superior Court, 209 Cal.App.3rd at 1274.) Appellate courts are inclined to grant writs to prevent an irreparable injury, but they are unlikely to be moved by an “irreparable inconvenience.”(Ordway v. Superior Court (1988) 198 Cal.App.3rd 98, 101 n. 1.)

Ehrlich Law Firm convinces Ninth Circuit to submit certified question to California Supreme Court

Scott Minkler appealed the district court’s order granting summary judgment on his claim against Safeco Insurance Company under a homeowner’s liability policy. Minkler’s claims arose out of Safeco’s refusal to defend Betty Schwartz, whose son David molested Minkler. Safeco denied coverage because of an exclusion in its policy for claims arising from the acts of “an” insured, because David was a resident of Betty’s home, and hence an insured under her policy. The issue in the case is the proper construction of a provision in the Safeco policy stating that “This insurance applies separately to each insured.” The Ninth Circuit, at the Ehrlich Firm’s request, has asked the California Supreme Court to decide the meaning of that provision. Minkler v. Safeco Ins. Co., 561 F.3d 1033 (9th Cir. 2009).

Minkler v. SafeCo Ins. Co. (.pdf)

Why you need an attorney with writ petition experience

The lawyer who petitions for a writ must therefore be able to show the Court that the issue presented is (a) interesting, and (b) important. For this reason, the odds of being able to successfully obtain writ review often depend on the skill of the lawyer presenting the writ petition. At the Ehrlich Law Firm, we have experience with drafting persuasive writ petitions, and have enjoyed success in obtaining writ review for our clients at far higher than the overall success rate for writ petitions.

For example, in Elvira v. Superior Court (2007) B200184, we successfully obtained a writ challenging the trial court’s sustaining of a demurrer to plaintiff’s complaint.  In DeBruyn v. Superior Court (2008) 158 Cal.App.4th 1213, we convinced the Appellate Court to consider the issue of whether an insurance policy that purported to bar all mold-related claims, regardless of how caused, was consistent with California law.  And in Medeiros v. Superior Court (2007) 146 Cal.App.4th 1008, we obtained a writ for a client who had been enrolled in her employer’s health plan electronically, without being given the disclosure concerning the plan’s use of arbitration that were required on the application by state law.  In its published opinion, the court held that insurers could not circumvent this law by doing away with the application.

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