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2017 California Rules of Court

Rule 8.487. Opposition and amicus curiae briefs

(a) Preliminary opposition

(1)Within 10 days after the petition is filed, the respondent or any real party in interest, separately or jointly, may serve and file a preliminary opposition.

(2)A preliminary opposition must contain a memorandum and a statement of any material fact not included in the petition.

(3)Within 10 days after a preliminary opposition is filed, the petitioner may serve and file a reply.

(4)Without requesting preliminary opposition or waiting for a reply, the court may grant or deny a request for temporary stay, deny the petition, issue an alternative writ or order to show cause, or notify the parties that it is considering issuing a peremptory writ in the first instance.

(b) Return or opposition; reply

(1)If the court issues an alternative writ or order to show cause, the respondent or any real party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both. If the court notifies the parties that it is considering issuing a peremptory writ in the first instance, the respondent or any real party in interest may serve and file an opposition.

(2)Unless the court orders otherwise, the return or opposition must be served and filed within 30 days after the court issues the alternative writ or order to show cause or notifies the parties that it is considering issuing a peremptory writ in the first instance.

(3)Unless the court orders otherwise, the petitioner may serve and file a reply within 15 days after the return or opposition is filed.

(4)If the return is by demurrer alone and the demurrer is not sustained, the court may issue the peremptory writ without granting leave to answer.

(c) Supporting documents

Any supporting documents accompanying a preliminary opposition, return or opposition, or reply must comply with rule 8.486(c)–(d).

(Subd (c) adopted effective January 1, 2014.)

(d) Attorney General's amicus curiae brief

(1)If the court issues an alternative writ or order to show cause, the Attorney General may file an amicus curiae brief without the permission of the Chief Justice or presiding justice, unless the brief is submitted on behalf of another state officer or agency.

(2)The Attorney General must serve and file the brief within 14 days after the return is filed or, if no return is filed, within 14 days after the date it was due. For good cause, the Chief Justice or presiding justice may allow later filing.

(3)The brief must provide the information required by rule 8.200(c)(2) and comply with rule 8.200(c)(5).

(4)Any party may serve and file an answer within 14 days after the brief is filed.

(Subd (d) amended effective January 1, 2017; adopted as subd (c); previously relettered as subd (d) effective January 1, 2014.)

(e) Other amicus curiae briefs

(1)This subdivision governs amicus curiae briefs when the court issues an alternative writ or order to show cause.

(2)Any person or entity may serve and file an application for permission of the Chief Justice or presiding justice to file an amicus curiae brief.

(3)The application must be filed no later than 14 days after the return is filed or, if no return is filed, within 14 days after the date it was due. For good cause, the Chief Justice or presiding justice may allow later filing.

(4)The proposed brief must be served on all parties. It must accompany the application and may be combined with it.

(5)The proposed brief must provide the information required by rule 8.200(c)(2) and (3) and comply with rule 8.200(c)(5).

(6)If the court grants the application, any party may file either an answer to the individual amicus curiae brief or a consolidated answer to multiple amicus curiae briefs filed in the case. If the court does not specify a due date, the answer must be filed within 14 days after either the court rules on the last timely filed application to file an amicus curiae brief or the time for filing applications to file an amicus curiae brief expires, whichever is later. The answer must be served on all parties and the amicus curiae.

(Subd (e) adopted effective January 1, 2017.)

Rule 8.487 amended effective January 1, 2017; adopted effective January 1, 2009; previously amended effective January 1, 2014.

Advisory Committee Comment

A party other than the petitioner who files a preliminary opposition under (a) or a return or opposition under (b) may be required to pay a filing fee under Government Code section 68926 if the preliminary opposition, return, or opposition is the first document filed in the writ proceeding in the reviewing court by that party. See rule 8.25(c).

Subdivision (a). Consistent with practice, rule 8.487 draws a distinction between a "preliminary opposition," which the respondent or a real party in interest may file before the court takes any action on the petition ((a)(1)), and a more formal "opposition," which the respondent or a real party in interest may file if the court notifies the parties that it is considering issuing a peremptory writ in the first instance ((b)(1)).

Subdivision (a)(1) allows the respondent or any real party in interest to serve and file a preliminary opposition within 10 days after the petition is filed. The reviewing court retains the power to act in any case without obtaining preliminary opposition ((a)(4)).

Subdivision (a)(3) allows a petitioner to serve and file a reply within 10 days after a preliminary opposition is filed. To permit prompt action in urgent cases, however, the provision recognizes that the reviewing court may act on the petition without waiting for a reply.

Subdivision (a)(4) recognizes that the reviewing court may "grant or deny a request for temporary stay" without requesting preliminary opposition or waiting for a reply.

The several references in rule 8.487 to the power of the court to issue a peremptory writ in the first instance after notifying the parties that it is considering doing so ((a)–(b)) implement the rule of Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.

Subdivision (b). Subdivision (b)(2) requires that the return or opposition be served and filed within 30 days after the court issues the alternative writ or order to show cause or notifies the parties that it is considering issuing a peremptory writ in the first instance. To permit prompt action in urgent cases, however, the provision recognizes that the reviewing court may order otherwise.

Subdivision (b)(3) formalizes the common practice of permitting petitioners to file replies to returns and specifies that such a reply must be served and filed within 15 days after the return is filed. To permit prompt action in urgent cases, however, the provision recognizes that the reviewing court may order otherwise.

Subdivision (c). Examples of confidential records include records of the family conciliation court (Fam. Code, § 1818 (b)) and fee waiver applications (Gov. Code, § 68633(f)).

Subdivisions (d) and (e). These provisions do not alter the court's authority to request or permit the filing of amicus briefs or amicus letters in writ proceedings in circumstances not covered by these subdivisions, such as before the court has determined whether to issue an alternative writ or order to show cause or when it notifies the parties that it is considering issuing a peremptory writ in the first instance.

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