Six Tips for Effective Writ Practice
By Jeffrey I. Ehrlich
Advocate. July/August 2001 | Download .pdf
B. Two Tips for the Respondent
1. Any Preliminary Opposition Must Be Filed Fast
Unless the reviewing court requests it, neither the respondent court nor the real party in interest is required to file an opposition to a writ petition. Cal. Rules of Court, Rule 56(b). Rule 56(b) allows either the respondent or the real party in interest to file “points and authorities in opposition and a statement of any fact considered material not included in the petition.” This document is often referred to as a “preliminary opposition” to the petition.
Appellate practitioners and justices offer differing opinions on whether to file a preliminary opposition. Some believe it “dignifies” or calls undue attention to a petition that might otherwise be routinely dismissed. Others find it useful to explain their client’s position and to assure the court that the petition overstates the issue. Some follow a middle ground, generally not filing a preliminary opposition unless there is something misleading in the petition. The deadline for filing a preliminary opposition is quite short — five days after service. Ibid. Courts often process writ petitions quickly. It is therefore advisable to file a preliminary opposition as quickly as possible, and not on the last day. It is not unheard of for an attorney who has filed a preliminary opposition on the fifth day to receive a phone call from the clerk of the court declining to file the document because the court denied the petition the day before.
2. If the Court Issues the Alternative Writ, File a Proper Return
The court will not grant a writ on the merits without an opposition. In most cases, if the court finds that the petition raises issues that might warrant relief, it will issue an alternative writ — essentially an order to show cause to the trial court to change its order or show cause why not. Upon issuance of the alternative writ, the real party and the respondent can file a “return” to the petition. C.R.C. 56(f). A return can be in the form of a demurrer to the petition, or a verified answer, or both. C.C.P. § 1089; C.R.C. 56(f). The verified answer allows the responding party to controvert the factual contentions in the petition, and it is therefore a good idea to file one. A return by demurrer alone does not controvert the petition’s factual allegations, and the court may overrule the demurrer and issue the relief sought in the petition without giving leave to file an answer. Rule 56(f).
Likewise, filing an unverified “opposition ” or “response” to the petition also fails to controvert the factual allegations in the petition. County of San Bernardino v. Superior Court, 30 Cal.App.4th 378, 382 n. 6, 35 Cal.Rptr.2d 760, 761 (1994) (responsive brief that does not respond to formal allegations in the petition is not a return). A return should mirror a petition, containing an introduction and summary of the argument, the “return” itself in the form of a verified answer or demurrer, or both, and a supporting memorandum of points and authorities.
One further note: Under the rules, the responding parties have the right to file a return if the court issues an alternative writ. Sometimes, however, the petition will seek issuance of the peremptory writ in the first instance, or the court will give notice that it intends to proceed on that basis. In that event, any preliminary opposition that is filed should essentially constitute a return, because it may be the only opposition filed before the court rules. ■