WRIT OF SUPERSEDEAS
How to request a stay of a judgment or order issued by a trial court pending an appeal if you believe that, without a stay, you will suffer serious harm?
Your opponent obtains a judgment or order in the trial court, and you appeal. Normally, the trial court order is not stayed automatically and by the time your appeal is decided, your opponent may have already enforced the judgment or order against you. This may result in severe prejudice to you if you ultimately prevail on your appeal and the judgment or order is overturned.
What is the Writ of Supersedeas?
The writ of supersedeas is issued by appellate court to lower court, directing that enforcement of judgment be stayed pending appeal, when relief is necessary to protect appellant from serious injury in case of reversal, and will not cause respondent disproportionate injury in case of affirmance.[1]
A petition for a writ of supersedeas is presented to the court of appeal to request that the court maintain the subject of the action in status quo until final determination of the appeal. Purpose of writ of supersedeas is to maintain status quo.[2]
An appellate court may grant a writ of supersedeas when a denial of a stay of enforcement would deprive the appellant of the benefit of a reversal of the judgment against him or her, provided, of course, that a proper showing is made.[3]
Appellate court has inherent power to issue process necessary to protect its appellate jurisdiction and to insure that rights of appellant will not be destroyed by mere passage of time necessary to prosecute appeal.[4]
The writ of supersedeas has long been recognized to be an attribute of the inherent power of the courts to preserve their own jurisdiction. The power to issue the writ is implied from the power to hear appeals.[5]
What is the Process of Applying for a Writ of Supersedeas?
Stay proceedings may be initiated by filing a petition for writ of supersedeas in the court of appeal.[6]
Appellant prepares, serves, and files a verified petition for writ of supersedeas with the court of appeal in which the appeal is pending.[7]
The petition bears the same title as the appeal and contains a statement of the necessity for the writ and supporting memorandum.[8]
The cover must bear the conspicuous notation "STAY REQUESTED," and identify the nature and date of the proceeding or act sought to be stayed.[9]
The writ will not issue until respondent has had an opportunity to file a memorandum and a statement of any material facts in opposition. Unless otherwise ordered, any opposition must be filed within 15 days after the petition and supporting points and authorities are filed.[10]
If the record on appeal has not yet been filed in the court of appeal, the petition must contain a copy of the judgment, the date of its entry, the fact and date of filing of the notice of appeal, and a statement of the subject matter of the appeal sufficient to advise the reviewing court of the question involved.[11]
Issuance of writ of supersedeas is precluded if appeal is no longer pending and judgment has become final.[12]
Under What Conditions is a Writ of Supersedeas Issued?
Appellate courts may grant supersedeas when the denial of a stay would deprive appellant of benefit of a reversal of judgment.[13]
An appellate court may issue a writ of supersedeas on any conditions that that court deems just or appropriate under the circumstances.[14]
The most common condition imposed on granting a writ of supersedeas is that an undertaking be filed, and the practice is to require approval of the sufficiency of the bond by the presiding judge of the lower court.[15]
As a practical matter, it is very difficult to obtain a writ of supersedeas and they are rarely granted. At a minimum, you must be able to demonstrate that you cannot afford a bond, that the issues in the appeal are significant, and that there is a strong likelihood of obtaining a reversal.
JAHANGIRI LAW GROUP handles appeals in the areas of business, corporate, commercial, and real estate litigation, and transactional law. We offer services in Urdu, Hindi, Punjabi and Spanish. We are located in San Ramon. We are open from 9:00 a.m. to 5:00 p.m., Monday to Friday. To make an appointment please call 925-574-0100.
[1]
California Table Grape Com. v. Dispoto (1971) 14 Cal. App. 3d 314, 316
[2] Dry Cleaners & Dyers Institute v. Reiss (1936) 5 Cal. 2d 306, 310; Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors (1967) 255 Cal. App. 2d 51, 53
[3] Deepwell Homeowners' Protective Asso. v. City Council of Palm Springs (1965) 239 Cal. App. 2d 63, 65-66
[4] Adoption of Pierce (1970) 5 Cal. App. 3d 316, 320
[5] People ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal. 2d 533, 538
[6] Cal. Rules of Ct., Rule 8.112
[7] Cal. Rules of Ct., Rule 8.112
[8] Cal. Rules of Ct., Rule 8.112
[9] Cal. Rules of Ct., Rules 8.40(c), 8.116
[10] Cal. Rules of Ct., Rule 8.112
[11] Cal. Rules of Ct., Rules 8.40(c), 8.112
[12] In re Christy L. (1986) 187 Cal. App. 3d 753, 758-759, 232 Cal. Rptr. 184
[13] People ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal. 2d 533, 537; Deepwell Homeowners' Protective Asso. v. City Council of Palm Springs (1965) 239 Cal. App. 2d 63, 65-66
[14] Kane v. Superior Court (1995) 37 Cal. App. 4th 1577, 1587 n.6
[15] Sandell, Inc. v. Bailey (1961) 193 Cal. App. 2d 518, 520
