November 29, 2010

When requesting an immediate stay from the Supreme Court, call ahead

There are times when seeking review in the Supreme Court that it is also necessary to ask for an immediate stay of trial court proceedings. For example, if your client has been ordered to produce privileged documents immediately and the Court of Appeal has summarily denied your writ petition challenging that order, you may want to seek review in the Supreme Court. You will also likely want to ask for a stay of the production order. (Compare Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 122 [“defendants had no legal duty to comply” with a discovery order until all their avenues of appellate relief—including a petition for writ of mandate and a petition for review to the Supreme Court—were exhausted] with the unpublished decision in Neu v. Superior Court (Apr. 24, 2003, B163692) 2003 WL 1928397, at p. *2, fn. 8 [“We do not go as far today as we went in Fairfield, where we held that the mere filing of a writ petition (which was denied) and a petition for review by the Supreme Court (which was also denied) relieves a party of an existing obligation to respond to outstanding discovery requests. . . . We consider it safe to assume that today’s writ practice differs substantially from writ practice in the 1960’s, and consider the sentiment expressed in Fairfield to apply here only because a stay was issued and the petition was granted—but not otherwise”].)

The Court and its staff are remarkably responsive to immediate stay requests and will usually be able to act on them quickly, sometimes even the same day. Because time is of the essence in such situations, we thought we would pass along a tip that can help the court clerk’s office help you. The clerk’s office appreciates receiving a phone call in advance to let them know that you intend to file a petition for review and stay request with a short fuse. As happened in one of our cases recently, the clerks may use the advance warning to request a copy of the record from the Court of Appeal—even before the petition for review has been filed. While this won’t guarantee that you will receive the relief you’re seeking, it might help get your petition processed in an orderly way, and certainly can’t hurt.

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