Writs of Mandate

California’s Code of Civil Procedure, in Part 3, Title 1, Chapter 2, deals with writs of mandate. Section 1084 specifies that the writ of mandamus is also a writ of mandate.

Section 1085 allows a write of mandate to be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled.

In addition, the appellate division of the superior court may grant a writ of mandate directed to the superior court in a limited civil case or in a misdemeanor or infraction case. Where the appellate division grants a writ of mandate directed to the superior court, the superior court is an inferior tribunal.

Section 1085.5 provides that, in any action or proceeding to attack, review, set aside, void, or annul the activity of the Director of Food and Agriculture, the procedure for issuance of a writ of mandate is to followed specified procedures.

Section 1086 requires a writ to be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law, which must be issued upon the verified petition of the party beneficially interested.

Section 1087 allows the writ to be either alternative or peremptory. The alternative writ must command the party to whom it is directed to do the act required to be performed, or to show cause before the court why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted.

Section 1088 states that, when the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued. However, if the application is upon due notice and the writ is allowed, the peremptory may be issued. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice period at a minimum is 10 days of the application. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.

Section 1088.5 provides that, in a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court.

Section 1089 states that, on the date for return of the alternative writ, or on which the application for the writ is noticed, the party upon whom the writ or notice has been served may make a return by demurrer, verified answer or both. If the return is by demurrer alone, the court may allow an answer to be filed within the time as it may designate.

Section 1089.5 provides that, where a petition for writ of mandate is filed in the trial court, and where a record of the proceedings to be reviewed has been filed with the petition or where no record of a proceeding is required, the respondent is required to answer within 30 days after service of the petition.

Section 1090 states that, if a return is made, which raises a question of a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, the court may order the question to be tried before a jury. The question to be tried must be distinctly stated in the order for trial, and the county must be designated. The order may also direct the jury to assess any damages which the applicant may have sustained.

Section 1091 specifies that, on the trial, the applicant is not precluded by the return from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance.

Section 1092 requires the motion for new trial to be made in the Court in which the issue of fact is tried.

Section 1093 states that, if no notice of a motion for a new trial be given, or if given, the motion be denied, the Clerk, within 5 days after the verdict or denial of the motion, must transmit to the Court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial.

Section 1094 specifies that, if no return is made, the case may be heard on the papers of the applicant. If the return raises only questions of law, or puts in issue immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case.

Section 1094.5 provides, where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.

The case is heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent’s points and authorities, or may be ordered to be filed by the court. The cost of preparing the record is borne by the petitioner.

The inquiry in such a case extends to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

There are special rules for cases arising from private hospital boards or boards of directors of districts organized under the Local Health Care District Law. The court enters judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, the court may order the reconsideration of the case in light of the court’s opinion and judgment and may order respondent to take further action as is specially enjoined upon it by law, but the judgment does not limit or control in any way the discretion legally vested in the respondent. There are also detailed rules for seeking and issuing a stay.

Section 1094.6 authorizes judicial review of any decision of a local agency, other than school district, or of any commission, board, officer or agent thereof, may occur only if the petition for writ of mandate is filed within the time limits specified in this section. Petitions must be filed not later than the 90th day following the date on which the decision becomes final.

In addition, the complete record of the proceedings is prepared by the local agency or its commission, board, officer, or agent which made the decision and will be delivered to the petitioner within 190 days after he has filed a written request. The terms “decision” and “party” are defined.

Section 1094.8 states that an action or proceeding to review the issuance, revocation, suspension, or denial of a permit or other entitlement for expressive conduct protected by the First Amendment to the United States Constitution must be conducted in accordance with this section of law. In addition, the following terms are defined: “permit,” “entitlement,” “permit applicant,” and “public agency.”

A public agency may designate the permits or entitlements by adopting an ordinance or resolution which contains a specific listing or other description of the permits or entitlements issued by the public agency which are eligible for expedited judicial review pursuant to this section because the permits regulate expressive conduct protected by the First Amendment to the United States Constitution. Specific procedures are set forth.

Section 1095 specifies that, if judgment is given for the applicant, the applicant may recover the damages which the applicant has sustained, as found by the jury, or as may be determined by the court or referee, a peremptory mandate must also be awarded without delay. The terms “public entity” and “officer” are defined.

Section 1096 requires the writ to be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. Service upon a majority of the members of any Board or body, is service upon the Board or body, whether at the time of the service the Board or body was in session or not.

Section 1097 provides that, if a peremptory mandate has been issued and directed to an inferior tribunal, corporation, board, or person, and it appears to the court that a member of the tribunal, corporation, or board, or the person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the writ, the court may, upon motion, impose a fine not exceeding $1,000. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.