When can you take a writ?

When can you take a writ?

Generally, appellate courts award writ relief only where the petitioner (1) has no alternative simple, quick, and appropriate remedy in the ordinary process of law; and (2) will suffer irreparable harm if such relief is not granted. These are usually very high standards to meet.

What is writ relief?

A petition for writ relief is an equitable action that requires the performance or abstention from an official act or obligation. In general, writ petitions are filed in the Superior Court to examine actions or refusals to act by a public agency or official, and in the Court of Appeal to review Superior Court rulings. Writs are also used when there is no other adequate remedy, such as when a court ruling would be ineffective otherwise.

Writs are issued by the Superior Court upon the request of any party interested in haveing the court determine if the respondent has been performing his duties properly. If the court determines that the respondent has not performed his duties, then the court issues a writ directing him to do so. The Superior Court may issue several types of writs, including: a mandatory injunction ordering someone to do something; a prohibitive injunction preventing someone from doing something; a writ of mandamus requiring someone who has a duty to perform a specific act to do so; and a writ of certiority allowing someone to appeal an adverse decision by a lower court.

The California Constitution provides that "a judicial writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which is purely ministerial, involving no exercise of judgment or discretion."

Ministerial acts are those that must be done at a specified time without regard to the merits of the case.

When can a writ petition be maintainable?

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How long does it take to serve an alternative writ?

A copy of the petition must be served on each person against whom the writ is sought, along with the alternative writ and any notice of intention to seek for the writ. The application must be given at least 10 days' notice. The writ cannot be issued automatically. It can only be issued by a judge or court commissioner after the petitioner has complied with all other requirements for its issuance.

The time period in which a respondent must answer a petition depends on what type of relief is requested. If the petitioner seeks an order that will affect real property, then the respondent must file an answer within 20 days of service of the petition. If the petitioner seeks other types of relief, then the respondent may file an answer at any time before the hearing. At the hearing, the petitioner must prove his or her case by a preponderance of the evidence. If the petitioner succeeds, then the respondent must comply with the court's order; if not, then the respondent is not required to comply with the order.

In most cases, respondents do not have to answer petitions until shortly before their hearings. If a respondent believes that the petition fails to state a claim upon which relief can be granted, he or she can file a motion to dismiss under California law. A respondent can also file a motion for summary judgment if there are no disputed issues of material fact. Either way, respondents have the opportunity to bring these issues before the court early in the process.

What is the name of the court that requests a writ?

The petitioner is the party who asks the writ. The RESPONDENT is the court that the petitioner is requesting to be directed to do or not do anything. The trial court is the defendant in appellate division writ proceedings. It is also called respondent.

Appellate courts can issue several types of writs, including supervisory and original jurisdiction writs. A supervisory writ is used by an appellate court to review actions taken by a trial court. For example, if a plaintiff files suit in district court without first serving the defendant, the plaintiff could ask the appellate court to issue a supervisory writ ordering the trial judge to grant a new time period so the defendant can be served. An original jurisdiction writ is used by an appellate court to challenge a trial court's subject matter jurisdiction over a case. For example, if a plaintiff files suit in justice court alleging damages under $5,000, the plaintiff could ask the appellate court to issue an original jurisdiction writ directing the justice court to transfer the case to district court because the amount in controversy exceeds $10,000.

Writs are also used by parties seeking specific performance of a contract for sale of real property, or to prevent a foreclosure on their home. The party filing the writ provides notice to the respondent court or justice court that it is seeking relief in the form of an order directing some action by either the trial court or another tribunal.

About Article Author

Cheryl Espinoza

Cheryl Espinoza has studied the history of news, and how it's been used to influence public opinion. She's learned about the power of imagery in journalism, and how important it is for news outlets to be transparent about their coverage. Cheryl wants to be an expert on what makes news stories succeed or fail, and how it can be used as a tool for social change.

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