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Successful Family Law Petitions For Writ Relief


By San Diego Family Law Appellate Attorneys Stephen Temko, CFLS, CALS, AAML and Dennis Temko

 (Vol. 35, Issue 3, 2013) State Bar Family Law News.


I. Introduction


An appeal is most often authorized by statute and usually from a final judgment or an order modifying a final judgment. (See Code of Civil Procedure §904.1 listing 13 grounds to appeal.) In family law, decisions that order the payment of money are also appealable such as temporary child or spousal support or attorney fees. (In re Marriage of Skelly (1976) 18 Cal.3d 365.) Another exception to the final judgment rule is an appeal from a bifurcated trial. (See Cal. Rules of Court, Rules 5.175 & 5.180.) Setting aside these limited exceptions to the final judgment rule, there are vast number of orders that are not appealable and the only remedy is a petition for writ relief. A writ is an order issued by the reviewing court to an inferior court directing it to do something or prohibiting it from doing something. The major common law writs are mandate, prohibition and certiorari (or writ of review). The Courts of Appeal have original jurisdiction in these proceedings. (Cal. Const. art. VI, § 10.)


II. Requirements for Writ Review.


There are two types of writs. Statutory writs and common law writs. The legislature has authorized review of particular rulings by writ and these are called “statutory writs”. When a statutory writ is authorized, there usually is no appeal at the end of the case on this issue, appellate relief must be sought as proscribed by the statute.


There are three general requirements for writ review. First, there must be no adequate remedy at law. (Code Civ. Proc.,§§ 1068, 1086, 1103.) Second, it must appear the petitioner will suffer irreparable injury if the writ is not granted, i.e.,harm or prejudice that cannot be corrected by a later appeal. (Smith v. Superior Court (General Motors Corp.) (1996) 41 Cal. App.4th 1014, 1021.) Third, the petitioner must have a beneficial interest (a special interest or some particular right over and above the public at large) in the lawsuit. (Code Civ. Proc., §§ 1069, 1086, 1103.) Other criteria for determining the propriety of an extraordinary writ are:


1. The issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue;


2. The trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action (Brandt v. Superior Court (Standard Insurance Company) (1985) 37 Cal.3d 813, 817);


3. Conflicting trial court interpretations of the law require a resolution of the conflict (Greyhound Corp v. Superior Court (Clay) (1961) 56 Cal.2d 355, 378;


4. The trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case (Babb v. Superior Court (Huntington) (1971) 3 Cal.3d 841, 851); or


5. The intervention of an appellate court may be required to consider instances of a grave nature or of significant legal impact, or to review questions of first impression and general importance to the bench and bar where general guidelines can be laid down for future cases. (Anderson v. Superior Court (1989) 213 Cal. App.3d 1321, 1328;City of Garden Grove v. Superior Court (Kha) (2007) 157 Cal. App.4th 355, 370.)


The extent to which these criteria apply depends on the facts and circumstances of the case. (Omaha Indemnity Co. v. Superior Court (Greinke) (1989) 209 Cal. App.3d 1266, 1273‑1274 [excellent discussion of writs and why writs aresummarily denied].) A writ is not a substitute for a late appeal. (Mauro B. v. Superior Court (William S.) (1991) 230 Cal. App. 3d 949.)


If you are going to file a writ petition, you must read and follow California Rules of Court, rule 8.486.


The “vast majority” (90%) of petitions for extraordinary writs filed in the Courts of Appeal are summarily denied. Writs may be considered on their merits and yet summarily denied without an opinion, oral argument, or the issuance of an alternative writ or order to show cause. (Joyce G. v. Superior Court (Nevada County Child Protective Services) (1995) 38 Cal. App.4th 1501, 1513.)


Only rarely does the court give detailed reasons for its rejection of a petition. Instead, counsel is usually notified in a terse minute order thatthe petition is denied. The large number of rejections of writ petitions demonstrates that courts will not use their scarce resources to second-guess every ruling and order of the trial court, particularly when to do so would save neither time nor aid in the resolution of a lawsuit. (Omaha Indemnity Co. v. Superior Court (Greinke), supra, 209 Cal. App.3d 1266, 1273-1274.)


III. Common Law Writs


A. Writ of Mandate


Code of Civil Procedure section 1085. A writ of mandate issues to correct an abuse of discretion or compel the performance of a duty. A writ of mandate does not generally lie to control the exercise of judicial discretion, but the writ will issue where, under the facts, that discretion can be exercised in only one way. (Robbins v. Superior Court (County of Sacramento) (1985) 38 Cal.3d 199, 205.)


B. Writ of Prohibition


Code of Civil Procedure section 1102. A writ of prohibition issues to prevent a threatened judicial act in excess of jurisdiction.


C. Writ of Certiorari


Code of Civil Procedure section 1068. A writ of certiorari issues to correct a completed judicial act in excess of jurisdiction.


D. Writ of Supersedeas


See California Rules of Court, rule 8.116. An order staying the trial court order pending completion of an appeal. There is generally no time limit to file a common law writ petition for mandate or prohibition relief. 60 days is theusual outside time limit. Any Petition is subject to a laches defense.


E. Writ of Habeas Corpus This is the remedy when a family law litigant has been found in contempt of court.(In re Blaze (1969) 271 Cal.App.2d 210.)


IV. Statutory Writs


Statutory writs are subject to strict time limits. In some instances, a statutory writ is the sole method of obtaining appellate relief. Examples and time limits are as follows:


1. An order denying a motion to quash service of process for lack of personal jurisdiction. (Code Civ. Proc., § 418.10, subd. (c).) The Petition must be filed within 10 days after service of the order. An additional 20 days may be obtained. Note: a responsive pleading must not be filed while the Petition is pending. A response will constitute a general appearance and waive your motion to quash and subsequent writ petition.


2. An order challenging a ruling on a motion to disqualify a judge. (Code Civ. Proc., § 170.3, subd. (d).) The Petition must be filed within 10 days after service of the order.


3. An order granting or denying a motion to expunge a lis pendens. (Code Civ. Proc, § 405.39.) The Petition must be filed within 20 days after service of the order. An additional 10 days may be obtained.


4. An order granting or denying a change of venue. (Code Civ. Proc., § 400.) The Petition must be filed within 20 days after service of the order. An additional 10 days may be obtained. This order may be appealed at the end of the case as well.


V. Writ Terminology


A. Designation of Parties:


The party seeking relief is the petitioner. The party opposing relief is the “real party in interest.” The Superior Court is the “respondent.”


B. Alternative Writ and Peremptory Writ:


If the appellate court is considering granting relief, or is directed to hear the case by the Supreme Court, an “alternative writ” is issued. This writ is the method by which the appellate court directs the Superior Court either to change its ruling or to show cause why it should not be compelled to do so. The real party files a response to the alternative writ, which defends the trial court’s ruling in a pleading called the “return.”


VI. Family Law Cases Where the Appellate Court Granted Writ Relief


A. Writ of Mandate[1]


1. Jurisdiction:


Lough v. Superior Court (Lough) (1992) 8 Cal. App.4th 136. Retention of jurisdiction over custody, child support, and visitation matters under the UCCJA.


Zaragoza v. Superior Court (Zaragoza) (1996) 49 Cal. App. 4th 720. Mandate relief granted because failure to timely file a motion to quash resulted in a waiver of the right to assert a prior Nevada judgment of dissolution was res judicata.


Kumar v. Superior Court (Kumar) (1982) 32 Cal.3d 689. Modification of child custody/visitation decree under the UCCJA. Personal jurisdiction over non-resident father for modification of child support.


Cole v. Superior Court (Cole) (1995) 173 Cal. App.3d 265. Peremptory writ issued as petitioner denied due process in receiving only 2 days notice of UCCJA jurisdictional hearing.


Muckle v. Superior Court (Burgess-Muckle) (2002) 102 Cal.App.4th 218. Writ issued to reverse decision that California had personal jurisdiction over GA husband.


2. Venue:


Forster v. Superior Court (Forster) (1992) 11 Cal. App.4th 782. Duty to transfer legal separation action to county of respondent’s residence.


Silva v. Superior Court (Silva) (1981) 119 Cal. App.3d 301. Abuse of discretion established by lack of substantial evidence to support denial of motion for change of venue of marital dissolution action on the ground of inconvenient forum.


3. Joinder:


Schnabel v. Superior Court (Schnabel) (1994) 30 Cal. App. 4th 758. Joinder of closely held corporation in which spouses had an ownership interest and husband was an officer.


Schnabel v. Superior Court (Schnabel) (1993) 21 Cal. App. 4th 548. Joinder of closely held corporation in which spouses had an ownership interest and husband was an officer.


4. Disqualification of Attorney:


Johnson v. Superior Court (Johnson) (1984) 159 Cal. App.3d 573. No conflict of interest created by attorney’s previous dual representation of both spouses in business matters unrelated to present support action


Addam v. Superior Court (Addam) (2004) 116 Cal. App.4th 368.  Disqualification of lawyer because of sibling relationship to opposing party’s physician set aside and mandate relief granted.


Woods v. Superior Court (Woods) (1983) 149 Cal. App.3d 931.  Conflict of interest prevents attorney for family-owned business from representing either spouse in dissolution action.


Klemm v. Superior Court (County of Fresno) (1977) 75 Cal. App.3d 893.  Dual representation of both spouses is permitted in uncontested dissolution action where any conflict of interest is merely potential.


5. Procedure:


Blumenthal v. Superior Court (Blumenthal) (2006) 137 Cal. App.4th 672.  Mandate relief ordering trial court to vacate mistrial which had been granted merely because trial not completed in arbitrary deadline set by trial court.


Ceriale v. Superior Court (Taback) (1996) 48 Cal. App.4th 1629.  Mandate granted setting aside bifurcation order because although underlying dissolution case was equitable and tried before a bench officer, a subsequent malpractice trial is a entitled to a jury trial.


Sanctions under $5,000. See Code of Civil Procedure section 904.1, subdivision (b).  Sanctions over $5,000 may be appealed.


6. Due Process:


Anderson v. Superior Court (1989) 213 Cal. App.3d 1321.  Imposition of appealable job search orders on mothers with AFDC grants who appear in family law court in support matters, without adequate and timely notice of that procedure,

which could result in reduction or loss of AFDC benefits,violates due process. Appeal is not an adequate remedy because the issues presented are of great public

interest and must be resolved promptly.


McLaughlin v. Superior Court (McLaughlin) (1983) 140 Cal. App.3d 473.  Right of parents to cross-examine mediator who renders a recommendation to the court as to custody or visitation of child involved in pre-hearing mediation when

parents fail to resolve dispute in the mediation proceedings. Local court policy prohibiting such cross-examination violates due process.


Taylor M. v. Superior Court (San Diego County Health and Human Services Agency) (2003) 106 Cal. App.4th 97.  Juvenile court improperly dismissed the dependency petition without an adequate hearing and mandate relief granted.


7. Discovery:


NOTE, extraordinary review of a discovery order will NOT be granted except when a ruling threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy.  (Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1493


Johnson v. Superior Court (California Cryobank, Inc.) (2000) 80 Cal. App.4th 1050.  Mandate granted to compel discovery in sperm donor litigation.


Babcock v. Superior Court (DiGiovanni) (1994) 29 Cal. App. 4th 721.  Disclosure of financial records of third party living with ex-spouse on issue of whether third party was the beneficiary of community funds.


Estevez v. Superior Court (Salley) (1994) 22 Cal. App.4th 423.  Noncustodial parent’s stipulation to pay any reasonable amount of support precludes discovery of his net worth and lifestyle in proceedings to modify child support.


Harris v. Superior Court (Smets) (1992) 3 Cal. App.4th 661.  Disclosure of financial records of third party living with exspouse on issue of whether ex-spouse’s child support obligation should be increased.


Lehman v. Superior Court (Lehman) (1986) 179 Cal. App.3d 558.  Abuse of discretion to limit discovery to property in existence on date of separation where wife claims medical corporations established by physician husband after separation are a continuation of his original practice and therefore community property.


Thomas B. v. Superior Court (Sherry H. et al.) (1985) 175 Cal. App.3d 255.  Disclosure of putative father’s state income tax returns on issue of child support in action to establish parentage.


Simek v. Superior Court (Simek) (1981) 117 Cal. App.3d 169.  Disclosure of noncustodial parent’s medical and psychiatric records in proceedings to terminate visitation.


Koshman v. Superior Court (Koshman) (1980) 111 Cal. App.3d 294.  Disclosure of custodial parent’s medical records in proceedings to modify child custody.


Manela v. Superior Court (2009) 177 Cal.App.4th 1139.  In custody matter, father's privacy interests in medical records were outweighed by the state's compelling interest in protecting child


8. Marital Property:


Lee v. Superior Court (Lee) (1976) 63 Cal. App.3d 705.  Authority to order the sale of a potential community asset and disposition of the proceeds for the benefit of a spouse’s claimed separate asset during pendency of dissolution action.  (See Fam. Code sect. 2108.)


9. Child Custody/Visitation:




Speelman v. Superior Court (Speelman) (1983) 152 Cal. App. 3d 124.  Abuse of discretion to order a change of custody without finding a substantial change of circumstances affecting the child.


Gadbois v. Superior Court (Houston) (1981) 126 Cal. App.3d 653.  Duty to adjudicate motion for temporary visitation during pendency of paternity action by making preliminary determination of paternity and determination whether visitation would be detrimental to best interests of child.


In re Marriage of Jenkens (1981) 116 Cal. App.3d 767. Authority to modify child custody order in dissolution action by awarding visitation rights to nonparty relatives (maternal grandparents) after the death of noncustodial

parent (father).


Nadler v. Superior Court (Nadler) (1967) 255 Cal. App.2d 523. Failure to exercise discretion in child custody proceedings in divorce action by ruling homosexual parent (mother) is unfit as a matter of law to have custody.

in the Crash program were totally inadequate.


10. Child Support:


Jaycee B. v. Superior Court (John B.) (1996) 42 Cal. App.4th 718. Authority to make temporary child support order pending  final determination of husband’s paternity in dissolution action where child conceived and born by gestational surrogacy is not genetically related to either the intended parents (the spouses) or the surrogate mother.


Taylor v. Superior Court (Jacob) (1990) 218 Cal. App.3d 1185. Standing of divorced custodial parent who is receiving AFDC benefits to bring action to require noncustodial parent to post security for payment of child support. Appeal is not an adequate remedy because the inherited $100,000 estate of incarcerated noncustodial parent allegedly will be dissipated before the appeal can be resolved.


Richter v. Superior Court (Winter) (1963) 214 Cal. App.2d 1. Failure to exercise discretion by continuing hearing an order to show cause for support during pendency of paternity action until after the child’s birth, without receiving any



11. Spousal Support:


Weber v. Superior Court (Weber) (1960) 53 Cal.2d 403. Authority to make order for temporary support in divorce action brought after other spouse obtained ex parte divorce decree in another state.


B. Writ of Prohibition


1. Discovery:


Smith v. Superior Court (Smith) (1981) 118 Cal. App.3d 136. Disclosure of information concerning patients of psychologist spouse on issue of spousal support.


2. Child Support:


McMahon v. Superior Court (Bierl) (1967) 255 Cal. App.2d 363. Defective showing in support of order to show cause for contempt of court for alleged failure to comply with child support order.


Kresteller v. Superior Court (Feldman) (1967) 248 Cal. App. 2d 545. Independent action for child support is precluded because court that granted prior divorce has continuing jurisdiction to modify its original decree, notwithstanding

its failure to include order for child support in the decree.


3. Spousal Support:


De Luca v. Superior Court (De Luca) (1968) 262 Cal. App. 2d 254. Order modifying original divorce decree by awarding alimony is void where original decree is silent regarding alimony and has become final.


Maben v. Superior Court (Maben) (1967) 255 Cal. App. 2d 708. No jurisdiction to extend alimony where prior order awarded alimony for a specified time period which expired before modification proceedings were commenced and jurisdiction was not retained to make further alimony award.


Greene v. Superior Court (Greene) (1961) 55 Cal.2d 403. No jurisdiction to grant motion to vacate order that modified alimony provision in Nevada divorce decree on erroneous ground that such order modifying alimony is void.


C. Writ of Certiorari/Writ of Habeas Corpus


 NOTE: THERE IS NO APPEAL FROM A FINDING OF CONTEMPT. When the citee is incarcerated, a writ of habeas corpus is filed.  When only a fine is imposed, review is by certiorari. See Code of Civil Procedure sections 1222, 904.1, subdivision (a)(1) and Goold v. Superior Court (Goold) (2006) 145 Cal. App.4th 1. For procedural rules, see California Rules of Court, Rule 8.384.


Coursey v. Superior Court (Coursey) (1987) 194 Cal. App. 3d 147. Review and annulment of contempt adjudication for spouse’s alleged failure to obey order granting visitation


In re Marcus (2006) 138 Cal. App.4th 1009. Habeas relief granted for contempt conviction because order had not been reduced to writing.


D. Writ of Supersedeas (Stay granted by appellate court)


In re Marriage of Dover (1971) 15 Cal. App.3d 675. Writ of supersedeas granted in custody dispute. (See Cal. Rules of Court, Rule 8.824.)



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