The Court of Appeal appears to have rescued the appellant in County of Orange v. Superior Court from a couple of potentially fatal procedural miscues. First, the appellant sought to stay the judgment of the superior court pending appeal by filing a “petition for writ of mandate, prohibition, or other appropriate relief.”. The court comes to the rescue, noting: “We treated the Department’s petition as a petition for writ of supersedeas, and, on our own motion, granted the Department’s request for an immediate stay of the proceedings.”
Generally, supersedeas is the appropriate procedure to get a stay of the trial court judgment pending appeal. The purpose of the writ is to suspend the trial court’s authority to enforce the judgment and thus preserve the jurisdiction of the appellate court to hear the matter. Without the writ, the case may become moot.
In this case, the court also appears to have rescued the appellant on another issue. According to real party, the order at issue is not appealable. The Court of Appeal did not rule on that assertion and instead exercised its “discretion to treat the appeal as a petition for writ of mandate.”
This raises an interesting question with regard to conversion of the first writ into a writ of supersedeas. As noted above, the purpose of that writ is to preserve the court’s appellate jurisdiction (Cal Rule of Court 8.112; CCP § 923). If the court was going to treat the matter as a petition for writ of mandate in the end, was it necessary to convert the first writ into a writ of supersedeas? Does this give the real party grounds to argue that the court acted in excess of its jurisdiction in granting that writ and the immediate stay?