Remedies

Remedy is not just relief, it is the means of obtaining relief.

Remedies are the way we go about getting what you need. Sometimes there will be words used that you do not know, or do not fully understand, or worse think you know.

If you do not understand a word, use a dictionary. I use one constantly — even for words I’ve used a million times. When you’re talking about your life, you want to be sure you understand the word.

Fun fact: Every lawyer and judge at one point did not know these words either. They all learned them along the way. That is exactly what you are doing now.

Also, do not assume a court or lawyer knows the words either, most think they do. When I am making a point that centers on a word, I introduce that word by saying: So the Court knows the basis from where I am starting from, the Oxford Dictionary defines “word” as: “a single distinct meaningful element of speech or writing, used with others (or sometimes alone) to form a sentence and typically shown with a space on either side when written or printed”.

Basic Definitions

  • Right → Something that belongs to you under the law.

  • Action → Simply the right or power to enforce an obligation — what is owed to you.

  • Cause of Action → The right or power to present to the court what is owed to you — the obligation.

  • Remedy → The means (the method or “vehicle”) of getting that relief.

  • Relief → The result you are asking the court for, what the judge orders.

  • Prosecuting → The act of doing the above in court. This word doesn’t just mean “the government.” Regular people prosecute their own actions too.

A Simple Example

  • You own a bike. (Right)

  • You get to ride it. (Action)

  • You lend it to someone and want it back. (Cause of Action)

  • You sue them in small claims court. (Remedy & Prosecuting)

  • The judge orders it returned. (Relief)

The Courts’ Words

  • “‘An action is nothing else than the right or power of prosecuting in a judicial proceeding what is owed to one’ — which is but to say, an obligation…. The action therefore springs from the obligation, and hence the ‘cause of action’ is simply the obligation.” (Frost v. Witter (1901) 132 Cal. 421, 426.)

  • “‘Remedy’ is not redress or relief, but is the means by which a wrong is redressed and relief obtained.” (Painter v. Berglund (1939) 31 Cal.App.2d 63, 70.)

  • “The ideas of right and remedy are inseparable. ‘Want of right and want of remedy are the same thing.’” (Edwards v. Kearzey (1877) 96 U.S. 595, 600.)

California’s Statutes Say the Same Thing

From the California Code of Civil Procedure (abbreviated as: Code Civ. Proc. or CCP)

  • § 24. Actions are of two kinds: (1) Civil; (2) Criminal.

  • § 25. A civil action arises out of: (1) An obligation; (2) An injury.

  • § 26. An obligation is a legal duty, arising from contract or by operation of law.

  • § 27. An injury is to the person or to property.

  • § 30. A civil action is prosecuted by one party against another for the declaration, enforcement, or protection of a right, or the redress or prevention of a wrong.

Remedies Are Based on Substance More Than Labels

We seek remedies by presenting courts with different types of named papers. These are often called vehicles. Think of it like choosing the right vehicle for the job — a tractor for the field, a sports car for speed, a truck for hauling.

This case explains both the variety of names and the rule that really matters:

“Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls.” (Melton v. United States (7th Cir. 2004) 359 F.3d 855, 857, emphasis added.)

So what does “substance” mean?

“[T]he true nature of a petition or cause of action is based on the facts alleged and the remedy sought” and whether it meets “the prerequisites” for that vehicle, People v. Picklesimer (2010) 48 Cal.4th 330, 340.

In plain terms:

  • You must show the facts proving you had a right.

  • You must show how that right was denied.

  • You must show the relief you are owed.

  • And your filing must meet the prerequisites (the technical requirements for that vehicle).

Motion vs. Petition

One of the most important basics is this: a motion is tied to an ongoing case, while a petition is used when the case is already over.

The court explained:

“‘As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy.’ [Citation.] In most cases, after the judgment has become final, there is nothing pending to which a motion may attach.”
(Picklesimer at p. 337.)

Simple terms:

  • If the original case is still alive → you usually use a motion.

  • If the case is finished → you usually need a petition.

And here’s the big difference: petitions must be verified (a sworn statement of facts under penalty of perjury). A motion almost never is. That distinction alone decides whether your filing survives.

For more on the other prerequisites, see Basic Legal Writing Presentation.

The Core Remedies

There are a number of remedies, to choose to obtain relief. The correct one often depends on what stage you are at in a case and what you want to achieve.

Habeas Corpus

The classic remedy in the United States for people in custody (meaning in prison, in jail, on probation, or on parole) is called habeas corpus. Lawyers have made it complex, but the basic idea is simple: if your conviction violated the Constitution, this is the vehicle to challenge it.

Luckily, the complexity was made a little easier with form HC-001. If you do not currently have an attorney and you are in California, you must use it.

Mandamus

If you are no longer in custody, depending on what you are trying to accomplish, the correct remedy may be a petition for a writ of mandamus (also called a writ of mandate). This is used to compel a person or court to do their job. If your conviction was illegal, then the government has an obligation not to let it stand as valid.

For those who want to understand the different procedures between habeas and mandamus, and to get a general overview, read People v. Romero (1994) 8 Cal.4th 728, 737–744.

Statutory Remedies

California has also created specific statutes that give you ways to challenge a conviction, outside of habeas or mandamus. These are narrower, but powerful if your situation fits:

  • Penal Code § 745 — challenges convictions obtained through racial bias.

  • Penal Code § 1473.6 — used when a conviction was based on false evidence or testimony.

  • Penal Code § 1473.7 — allows relief when a conviction or plea is invalid because of an error, such as not understanding immigration consequences.

Think of these like sports cars — fast and effective, but only on the track they were built for. If your facts match one of these statutes, this may be the remedy for you.

Motions to Vacate Void Judgments

Sometimes a judgment is not just wrong, but void — meaning the court never had the power (jurisdiction) to issue it in the first place. In that case, a motion to vacate a void judgment can be filed, even long after the case has ended.

This is rare and often misunderstood, but when a judgment is truly void, it has no legal effect and can be attacked at any time. See People v. Vasilyan, (2009) 174 Cal. App. 4th 443.

Closing Bridge

At the end of the day, substance controls. The name on your filing matters far less than whether it matches your facts, your action, your relief, and the prerequisites required. The court, in “its discretion may treat a motion or a petition for a different writ as a mislabeled petition for” the correct one. (People v. Picklesimer at 340)

Pick the vehicle that fits your situation. Each one comes with its own specific requirements. Pick wrong, and you could drive straight into a wall.

Avoid that by learning and educating yourself. Which is what we are here to help you with, continue learning here.