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Legal Memorandum: Issuance of an Extraordinary Writ

Issue: What are the threshold requirements for issuance of an extraordinary writ?

Area of Law: Litigation & Procedure
Keywords: Extraordinary writ; Threshold requirements
Jurisdiction: California
Cited Cases: 11 Cal. Rptr. 2; 46 Cal. Rptr. 2d 332; 49 Cal. Rptr. 2d 20; 258 Cal. Rptr. 66; 41 Cal. App. 4; 243 Cal. Rptr. 536
Cited Statutes: Cal. Code Civ. P. § 1086)
Date: 11/01/2007

Relief through writ review is viewed by California appellate courts as an extraordinary measure.  Omaha Indemnity Co. v. Super. Ct. (Greinke) (1989) 209 Cal. App. 3d 1266, 1268, 258 Cal. Rptr. 66, 67.  In keeping with their extraordinary nature, writ petitions are rarely granted.  Id., 258 Cal. Rptr. at 68.  The court in Omaha Indemnity provided the lucid reasoning behind this reluctance:

[I]f it were granted at the drop of a hat, [writ review] 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.  If such were the rule, reviewing courts would in innumerable cases be converted from appellate courts to nisi prius tribunals [and] would be trapped in an appellate gridlock.”

Id. at 69 (citation omitted).  In essence, it is not enough to justify issuance of a writ that the trial judge below may have committed an error.  It is the contemplation of the law that, absent extraordinary circumstances, lower court errors be corrected below, by the time of judgment, or else on appeal.  See Eisenberg, Horvitz and Wiener, Civil Appeals and Writs (Rutter Group 2006) § 15:1.5, citing Omaha Indemnity, supra and Science Applications Int’l Corp. v. […]

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