San Francisco, CA asked in Appeals / Appellate Law for California

Q: Should a petition for Writ filed in court appeals be different from one filed superior

A petition for Writ of Mandamus is denied in superior court, resulting in hopes of appealing that superior court order denial refusing to intervene, should the petition for Writ of Mandamus filed now in court of appeals differ or be the same?

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1 Lawyer Answer
John Toby Schreiber
John Toby Schreiber
  • Appeals & Appellate Lawyer
  • Benicia, CA
  • Licensed in California

A: Actually, trial court orders denying a petition for writ of mandamus are usually appealable and begin by filing a notice of appeal in the trial court within 60 days of notice of the entry of that order. There are exceptions to that rule, such as proceedings brought under the Public Records Act, and under Business & Professions Code section 2337, which limits appellate review of a trial court decision revoking, restricting, or suspending a license, to petitions for writ of mandate, prohibition, or other extraordinary relief.

If your case falls within one of the exceptions to the rule of appealability and a writ petition is necessary to file in the appellate court, then yes, the petition filed in the appel late court must be different than that filed in the trial court. First, you must be aware and state the appropriate standard of review for the appellate court to use, and be cognizant of that standard in making your arguments. Second, the record or exhibits filed with the appellate court and the writ petition must be complete. That means that all important filings in the trial court that relate to the ruling must be included in the exhibits, including the moving and opposing papers, operative pleadings, the order from which review is sought, and a reporter's transcript of the trial court proceedings (which means arranging for a court reporter in the trial court). If the record is not complete the appellate court can dismiss the writ petition on that basis alone.

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