What is the standard of review on a Writ of Mandate in the Appellate Court regarding a discovery motion?

Asked over 1 year ago - Mill Valley, CA

I am in pro per and won a motion to deem admitted RFAs in my civil unlimited case. Opp. counsel then filed for reconsideration and was denied. Now he's filed a Writ with the Appellate Court and his pleadings do not specify the standard of review anywhere in any of the documents.

My initial research indicates that it is likely an abuse of discretion standard, but I remain uncertain and a call to the court produced nothing of value in determining this. Can anyone tell me what the standard normally is, or how it is that I can tell?

So far my research has turned up both de novo and abuse of discretion. Any assistance or statutes or case citings or practice manual info would be very helpful so I can properly frame my response to the correct standard. Thank you.

Attorney answers (2)

  1. Tobie Brina Waxman

    Contributor Level 17

    5

    Lawyers agree

    Answered . The basis for the Writ - i.e. what mistake or error of law is the appellant contending - dictates the standard of review. You are probably right. It will likely be abuse of discretion. However, at this point, it is not your burden and should not be of any concern to you. It is entirely within the discretion of the appellate court whether to grant immediate review by writ petition of the challenged order. The great majority of such writ petitions are summarily denied. If the court agrees to review the order (which is unlikely), the appellant then must file his or her opening brief in which he/she will likely include statements/discussion regarding which standard of review applies. If it actually gets to the point where an opening brief is filed and you want to respond, I would highly recommend you hire an appellate attorney to prepare the brief for you and appear for the oral argument, if any.

  2. Herb Fox

    Contributor Level 16

    4

    Lawyers agree

    Answered . Generally the standard is abuse of discretion, unless the discovery issue concerns Constitutional issues (e.g., right to privacy) or concerns the interpretation of a section of the discovery act, in which case the standard is de novo.
    The fact that the writ petition does not specify the standard of review is itself a sign that the petition is doomed to fail.
    Best of luck.

    Nothing contained in this communication is intended to be, or shall be deemed as, legal advice, counsel, or... more

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