2010 California Code
Code of Civil Procedure
Chapter 2. Writ Of Mandate

CODE OF CIVIL PROCEDURE
SECTION 1084-1097



1084.]  Section Ten Hundred and Eighty-four. The writ of mandamus
may be denominated a writ of mandate.



1085.  (a) A writ of mandate may 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, and from which the party is unlawfully
precluded by that inferior tribunal, corporation, board, or person.
   (b) 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 for purposes of this chapter.



1085.5.  Notwithstanding this chapter, in any action or proceeding
to attack, review, set aside, void, or annul the activity of the
Director of Food and Agriculture under Division 4 (commencing with
Section 5001) or Division 5 (commencing with Section 9101) of the
Food and Agricultural Code, the procedure for issuance of a writ of
mandate shall be in accordance with Chapter 1.5 (commencing with
Section 5051) of Part 1 of Division 4 of that code.



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


1087.  The writ may be either alternative or peremptory. The
alternative writ must command the party to whom it is directed
immediately after the receipt of the writ, or at some other specified
time, to do the act required to be performed, or to show cause
before the court at a time and place then or thereafter specified by
court order 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.



1088.  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; but if the application is upon due notice and the writ
is allowed, the peremptory may be issued in the first instance. 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 of the
application, when given, must be at least ten days. The writ cannot
be granted by default. The case must be heard by the court, whether
the adverse party appears or not.


1088.5.  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.



1089.  On the date for return of the alternative writ, or on which
the application for the writ is noticed, or, if the Judicial Council
shall adopt rules relating to the return and answer, then at the time
provided by those rules, 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 such time as it may designate. Nothing in this
section affects rules of the Judicial Council governing original writ
proceedings in reviewing courts.



1089.5.  Where a petition for writ of mandate is filed in the trial
court pursuant to Section 1088.5, 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 shall answer or
otherwise respond within 30 days after service of the petition.
However, where a record of the proceeding to be reviewed has been
requested pursuant to Section 11523 of the Government Code, or
otherwise, and has not been filed with the petition, the party upon
whom the petition has been served, including any real party in
interest, shall answer or otherwise respond within 30 days following
receipt of a copy of the record.



1090.  If a return be made, which raises a question as to a matter
of fact essential to the determination of the motion, and affecting
the substantial rights of the parties, and upon the supposed truth of
the allegation of which the application for the writ is based, the
court may, in its discretion, order the question to be tried before a
jury, and postpone the argument until such trial can be had, and the
verdict certified to the court. The question to be tried must be
distinctly stated in the order for trial, and the county must be
designated in which the same shall be had. The order may also direct
the jury to assess any damages which the applicant may have
sustained, in case they find for him.



1091.  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.



1092.  The motion for new trial must be made in the Court in which
the issue of fact is tried.



1093.  If no notice of a motion for a new trial be given, or if
given, the motion be denied, the Clerk, within five days after
rendition of 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; after
which either party may bring on the argument of the application, upon
reasonable notice to the adverse party.



1094.  If no return be 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.
   If a petition for a writ of mandate filed pursuant to Section
1088.5 presents no triable issue of fact or is based solely on an
administrative record, the matter may be determined by the court by
noticed motion of any party for a judgment on the peremptory writ.




1094.5.  (a) 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 shall be 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. Except when
otherwise prescribed by statute, the cost of preparing the record
shall be borne by the petitioner. Where the petitioner has proceeded
pursuant to Section 68511.3 of the Government Code and the Rules of
Court implementing that section and where the transcript is necessary
to a proper review of the administrative proceedings, the cost of
preparing the transcript shall be borne by the respondent. Where the
party seeking the writ has proceeded pursuant to Section 1088.5, the
administrative record shall be filed as expeditiously as possible,
and may be filed with the petition, or by the respondent after
payment of the costs by the petitioner, where required, or as
otherwise directed by the court. If the expense of preparing all or
any part of the record has been borne by the prevailing party, the
expense shall be taxable as costs.
   (b) The inquiry in such a case shall extend 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.
   (c) Where it is claimed that the findings are not supported by the
evidence, in cases in which the court is authorized by law to
exercise its independent judgment on the evidence, abuse of
discretion is established if the court determines that the findings
are not supported by the weight of the evidence. In all other cases,
abuse of discretion is established if the court determines that the
findings are not supported by substantial evidence in the light of
the whole record.
   (d) Notwithstanding subdivision (c), in cases arising from private
hospital boards or boards of directors of districts organized
pursuant to The Local Hospital District Law, Division 23 (commencing
with Section 32000) of the Health and Safety Code or governing bodies
of municipal hospitals formed pursuant to Article 7 (commencing with
Section 37600) or Article 8 (commencing with Section 37650) of
Chapter 5 of Division 3 of Title 4 of the Government Code, abuse of
discretion is established if the court determines that the findings
are not supported by substantial evidence in the light of the whole
record. However, in all cases in which the petition alleges
discriminatory actions prohibited by Section 1316 of the Health and
Safety Code, and the plaintiff makes a preliminary showing of
substantial evidence in support of that allegation, the court shall
exercise its independent judgment on the evidence and abuse of
discretion shall be established if the court determines that the
findings are not supported by the weight of the evidence.
   (e) Where the court finds that there is relevant evidence that, in
the exercise of reasonable diligence, could not have been produced
or that was improperly excluded at the hearing before respondent, it
may enter judgment as provided in subdivision (f) remanding the case
to be reconsidered in the light of that evidence; or, in cases in
which the court is authorized by law to exercise its independent
judgment on the evidence, the court may admit the evidence at the
hearing on the writ without remanding the case.
   (f) The court shall enter 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, it may
order the reconsideration of the case in the light of the court's
opinion and judgment and may order respondent to take such further
action as is specially enjoined upon it by law, but the judgment
shall not limit or control in any way the discretion legally vested
in the respondent.
   (g) Except as provided in subdivision (h), the court in which
proceedings under this section are instituted may stay the operation
of the administrative order or decision pending the judgment of the
court, or until the filing of a notice of appeal from the judgment or
until the expiration of the time for filing the notice, whichever
occurs first. However, no such stay shall be imposed or continued if
the court is satisfied that it is against the public interest. The
application for the stay shall be accompanied by proof of service of
a copy of the application on the respondent. Service shall be made in
the manner provided by Title 5 (commencing with Section 405) of Part
2 or Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.
If an appeal is taken from a denial of the writ, the order or
decision of the agency shall not be stayed except upon the order of
the court to which the appeal is taken. However, in cases where a
stay is in effect at the time of filing the notice of appeal, the
stay shall be continued by operation of law for a period of 20 days
from the filing of the notice. If an appeal is taken from the
granting of the writ, the order or decision of the agency is stayed
pending the determination of the appeal unless the court to which the
appeal is taken shall otherwise order. Where any final
administrative order or decision is the subject of proceedings under
this section, if the petition shall have been filed while the penalty
imposed is in full force and effect, the determination shall not be
considered to have become moot in cases where the penalty imposed by
the administrative agency has been completed or complied with during
the pendency of the proceedings.
   (h) (1) The court in which proceedings under this section are
instituted may stay the operation of the administrative order or
decision of any licensed hospital or any state agency made after a
hearing required by statute to be conducted under the Administrative
Procedure Act, as set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code,
conducted by the agency itself or an administrative law judge on the
staff of the Office of Administrative Hearings pending the judgment
of the court, or until the filing of a notice of appeal from the
judgment or until the expiration of the time for filing the notice,
whichever occurs first. However, the stay shall not be imposed or
continued unless the court is satisfied that the public interest will
not suffer and that the licensed hospital or agency is unlikely to
prevail ultimately on the merits. The application for the stay shall
be accompanied by proof of service of a copy of the application on
the respondent. Service shall be made in the manner provided by Title
5 (commencing with Section 405) of Part 2 or Chapter 5 (commencing
with Section 1010) of Title 14 of Part 2.
   (2) The standard set forth in this subdivision for obtaining a
stay shall apply to any administrative order or decision of an agency
that issues licenses pursuant to Division 2 (commencing with Section
500) of the Business and Professions Code or pursuant to the
Osteopathic Initiative Act or the Chiropractic Initiative Act. With
respect to orders or decisions of other state agencies, the standard
in this subdivision shall apply only when the agency has adopted the
proposed decision of the administrative law judge in its entirety or
has adopted the proposed decision but reduced the proposed penalty
pursuant to subdivision (b) of Section 11517 of the Government Code;
otherwise the standard in subdivision (g) shall apply.
   (3) If an appeal is taken from a denial of the writ, the order or
decision of the hospital or agency shall not be stayed except upon
the order of the court to which the appeal is taken. However, in
cases where a stay is in effect at the time of filing the notice of
appeal, the stay shall be continued by operation of law for a period
of 20 days from the filing of the notice. If an appeal is taken from
the granting of the writ, the order or decision of the hospital or
agency is stayed pending the determination of the appeal unless the
court to which the appeal is taken shall otherwise order. Where any
final administrative order or decision is the subject of proceedings
under this section, if the petition shall have been filed while the
penalty imposed is in full force and effect, the determination shall
not be considered to have become moot in cases where the penalty
imposed by the administrative agency has been completed or complied
with during the pendency of the proceedings.
   (i) Any administrative record received for filing by the clerk of
the court may be disposed of as provided in Sections 1952, 1952.2,
and 1952.3.
   (j) Effective January 1, 1996, this subdivision shall apply to
state employees in State Bargaining Unit 5. For purposes of this
section, the court is not authorized to review any disciplinary
decisions reached pursuant to Section 19576.1 of the Government Code.




1094.6.  (a) Judicial review of any decision of a local agency,
other than school district, as the term local agency is defined in
Section 54951 of the Government Code, or of any commission, board,
officer or agent thereof, may be had pursuant to Section 1094.5 of
this code only if the petition for writ of mandate pursuant to such
section is filed within the time limits specified in this section.
   (b) Any such petition shall be filed not later than the 90th day
following the date on which the decision becomes final. If there is
no provision for reconsideration of the decision, or for a written
decision or written findings supporting the decision, in any
applicable provision of any statute, charter, or rule, for the
purposes of this section, the decision is final on the date it is
announced. If the decision is not announced at the close of the
hearing, the date, time, and place of the announcement of the
decision shall be announced at the hearing. If there is a provision
for reconsideration, the decision is final for purposes of this
section upon the expiration of the period during which such
reconsideration can be sought; provided, that if reconsideration is
sought pursuant to any such provision the decision is final for the
purposes of this section on the date that reconsideration is
rejected. If there is a provision for a written decision or written
findings, the decision is final for purposes of this section upon the
date it is mailed by first-class mail, postage prepaid, including a
copy of the affidavit or certificate of mailing, to the party seeking
the writ. Subdivision (a) of Section 1013 does not apply to extend
the time, following deposit in the mail of the decision or findings,
within which a petition shall be filed.
   (c) The complete record of the proceedings shall be prepared by
the local agency or its commission, board, officer, or agent which
made the decision and shall be delivered to the petitioner within 190
days after he has filed a written request therefor. The local agency
may recover from the petitioner its actual costs for transcribing or
otherwise preparing the record. Such record shall include the
transcript of the proceedings, all pleadings, all notices and orders,
any proposed decision by a hearing officer, the final decision, all
admitted exhibits, all rejected exhibits in the possession of the
local agency or its commission, board, officer, or agent, all written
evidence, and any other papers in the case.
   (d) If the petitioner files a request for the record as specified
in subdivision (c) within 10 days after the date the decision becomes
final as provided in subdivision (b), the time within which a
petition pursuant to Section 1094.5 may be filed shall be extended to
not later than the 30th day following the date on which the record
is either personally delivered or mailed to the petitioner or his
attorney of record, if he has one.
   (e) As used in this section, decision means a decision subject to
review pursuant to Section 1094.5, suspending, demoting, or
dismissing an officer or employee, revoking, denying an application
for a permit, license, or other entitlement, imposing a civil or
administrative penalty, fine, charge, or cost, or denying an
application for any retirement benefit or allowance.
   (f) In making a final decision as defined in subdivision (e), the
local agency shall provide notice to the party that the time within
which judicial review must be sought is governed by this section.
   As used in this subdivision, "party" means an officer or employee
who has been suspended, demoted or dismissed; a person whose permit,
license, or other entitlement has been revoked or suspended, or whose
application for a permit, license, or other entitlement has been
denied; or a person whose application for a retirement benefit or
allowance has been denied.
   (g) This section shall prevail over any conflicting provision in
any otherwise applicable law relating to the subject matter, unless
the conflicting provision is a state or federal law which provides a
shorter statute of limitations, in which case the shorter statute of
limitations shall apply.



1094.8.  (a) Notwithstanding anything to the contrary in this
chapter, 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 shall be conducted in accordance with subdivision (d).
   (b) For purposes of this section, the following definitions shall
apply:
   (1) The terms "permit" and "entitlement" are used interchangeably.
   (2) The term "permit applicant" means both an applicant for a
permit and a permitholder.
   (3) The term "public agency" means a city, county, city and
county, a joint powers authority or similar public entity formed
pursuant to Section 65850.4 of the Government Code, or any other
public entity authorized by law to issue permits for expressive
conduct protected by the First Amendment to the United States
Constitution.
   (c) A public agency may, if it so chooses, designate the permits
or entitlements to which this section applies 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.
   (d) The procedure set forth in this subdivision, when applicable,
shall supersede anything to the contrary set forth in this chapter.
   (1) Within five court days after receipt of written notification
from a permit applicant that the permit applicant will seek judicial
review of a public agency's action on the permit, the public agency
shall prepare, certify, and make available the administrative record
to the permit applicant.
   (2) Either the public agency or the permit applicant may bring an
action in accordance with the procedure set forth in this section. If
the permit applicant brings the action, the action shall be in the
form of a petition for writ of mandate pursuant to Section 1085 or
1094.5, as appropriate.
   (3) The party bringing the action pursuant to this section shall
file and serve the petition on the respondent no later than 21
calendar days following the public agency's final decision on the
permit. The title page of the petition shall contain the following
language in 18-point type:
   "ATTENTION: THIS MATTER IS ENTITLED TO PRIORITY AND SUBJECT TO THE
EXPEDITED HEARING AND REVIEW PROCEDURES CONTAINED IN SECTION 1094.8
OF THE CODE OF CIVIL PROCEDURE."
   (4) The clerk of the court shall set a hearing for review of the
petition no later than 25 calendar days from the date the petition is
filed. Moving, opposition, and reply papers shall be filed as
provided in the California Rules of Court. The petitioner shall lodge
the administrative record with the court no later than 10 calendar
days in advance of the hearing date.
   (5) Following the conclusion of the hearing, the court shall
render its decision in an expeditious manner consistent with
constitutional requirements in view of the particular facts and
circumstances. In no event shall the decision be rendered later than
20 calendar days after the matter is submitted or 50 calendar days
after the date the petition is filed pursuant to paragraph (4),
whichever is earlier.
   (e) If the presiding judge of the court in which the action is
filed determines that, as a result of either the press of other court
business or other factors, the court will be unable to meet any one
or more of the deadlines provided within this section, the presiding
judge shall request the temporary assignment of a judicial officer to
hear the petition and render a decision within the time limits
contained herein, pursuant to Section 68543.8 of the Government Code.
Given the short time period involved, the request shall be entitled
to priority.
   (f) In any action challenging the issuance, revocation,
suspension, or denial of a permit or entitlement, the parties to the
action shall be permitted to jointly waive the time limits provided
for herein.



1095.  If judgment be 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, upon a
reference to be ordered, together with costs; and a peremptory
mandate must also be awarded without delay. Damages and costs may be
enforced in the manner provided for money judgments generally. In all
cases where the respondent is an officer of a public entity, all
damages and costs, or either, which may be recovered or awarded,
shall be recovered and awarded against the public entity represented
by the officer, and not against the officer so appearing in the
proceeding, and are a proper claim against the public entity for
which the officer appeared and shall be paid as other claims against
the public entity are paid; but in all such cases, the court shall
first determine that the officer appeared and made defense in the
proceeding in good faith. For the purpose of this section, "public
entity" includes the state, a county, city, district or other public
agency or public corporation. For the purpose of this section,
"officer" includes officer, agent or employee.



1096.  The writ must 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.



1097.]  Section Ten Hundred and Ninety-seven. When a peremptory
mandate has been issued and directed to any inferior tribunal,
corporation, Board, or person, if it appear to the Court that any
member of such tribunal, corporation, or Board, or such person upon
whom the writ has been personally served, has, without just excuse,
refused or neglected to obey the same, the Court may, upon motion,
impose a fine not exceeding one thousand dollars. 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.



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