- It can be issued to correct an abuse of discretion by a court, an administrative body, or a person;3 or
- It can be issued to compel a court, an administrative body, or a person to do something that the law requires of them.4
Put simply, the writ of mandate is used to correct mistakes that were the result of an abuse of discretion or the failure to act when the law requires it.5 Importantly, the writ cannot be used to control how discretion is exercised.6 It can only be used when there has been an underlying abuse of discretion or an entity’s failure to meet its legal duties.
The writ of mandate is usually only available to correct governmental errors. But it can sometimes be used against private parties to compel them to do something that the law requires.7 This might, for example, happen when shareholders seek to force a business’s officers to take an action the law requires—like disclosing records.8
The party seeking a writ of mandate must file a written petition with a court to obtain it.9 The rest of this article takes a closer look at petitions for writs of mandate in California state court.
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- 1 How Writs and Appeals Are Different
- 2 The Parties in a Writ Proceeding
- 3 General Requirements of the Writ of Mandate
- 4 Situations in Which the Writ Might Be Appropriate
- 5 Preparing a Petition for a Writ of Mandate
- 6 Writs of Administrative Mandamus Compared
- 7 Final Thoughts
How Writs and Appeals Are Different
California has three basic levels of state courts: the superior courts, the courts of appeal, and the Supreme Court of California.10 The basic hierarchy of California courts can be illustrated as follows:
The superior courts are California’s trial-level courts, which is where most cases begin. After the superior court renders a judgment or issues an appealable order, the losing party can file an appeal with one of California’s courts of appeal (or, in smaller cases, in the appellate division of the superior court).11
An appeal is an opportunity for the losing party to challenge mistakes made in the superior court.12 The party that files the appeal will argue that the higher court should order the lower court to make some change in its decision. That change might be a complete reversal of the case, or it might be a minor modification in the outcome.
A writ proceeding is similar to an appeal in that a party is usually challenging a mistake made in a lower court.13 But writs are generally considered an “extraordinary” type of relief and have several distinguishing characteristics.14
First, writs are much less common than appeals and courts tend to disfavor their use. Courts prefer to wait and see whether the alleged error will be fixed or made irrelevant by the time the case reaches a final judgment.15 As one court explained:
“[I]t is not fair to parties on appeal who have often waited years for the final resolution of their disputes to have litigants in the pretrial stage elbow their way into the line at our door.”16
Thus, filing a successful writ petition can be more difficult than an appeal because courts are often hesitant to grant it.17
Second, the fact that a lower court made a mistake is usually not enough to obtain writ relief.18 Writs are discretionary in nature,19 in most cases, and courts will often decline to hear them until a final judgment has been rendered.20 This differs from appeals, which are generally heard as a matter of right.21
The Supreme Court of California has listed six circumstances where the use of writs is appropriate:22
- The writ petition involves a significant and novel constitutional issue, or is an issue of widespread interest.23
- The trial court’s order deprived a party of an opportunity to present a substantial portion of its case.24
- Conflicting trial court interpretations of the law require a resolution of the conflict by a higher court.25
- The trial court’s order is both clearly wrong as a matter of law and substantially prejudices a party’s case.26
- The party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief.27
- The petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.28
The extent to which these criteria apply depends on the facts and circumstances of the case.29
Because the availability of writs is so limited, most writ petitions end with the reviewing court issuing a one-sentence order that denies the petition. These are called summary denials (the petition is considered summarily denied) and they usually contain no explanation about why the writ was denied.30
Despite these limitations, writs have one important benefit that appeals do not: if granted, the party can obtain relief faster than a normal appeal would allow. Rather than waiting for a final judgment or an appealable order to issue, the party can pursue a writ petition right away (if appropriate). This can save the parties significant time and money.31
Additionally, when writ review is the exclusive means of reviewing a final order or judgment, courts are not permitted to exercise discretion in the manner stated above. If the writ petition is apparently meritorious, timely presented, and procedurally sufficient, the courts must entertain it.32
As such, there are a variety of situations where a writ petition might be advisable for California litigants.
The Parties in a Writ Proceeding
Lawyers engaged in writ proceedings use several terms that aren’t common in other types of cases. Those can be defined as follows:
A petitioner is the party who is requesting the writ of mandate.
A respondent is the entity that is alleged to have committed the violation described in the petition for writ of mandate. It is usually the trial court, state agency, or other inferior tribunal.
Unless the respondent is directly impacted by the petition, they normally take a neutral role in the matter and are not entitled to respond to the petition.33
Real Party in Interest
A real party in interest is the party that will be directly affected by the outcome of the writ proceedings. The real party in interest is usually the other party to the lawsuit or proceeding being challenged, but it can also include anyone that has a direct interest in the result 34
The real party in interest normally opposes the petition, and has a right to respond to it.35 There can sometimes be multiple real parties in interest.
General Requirements of the Writ of Mandate
In California, there are three basic requirements that usually must be met before a court will grant a petition for writ of mandate:
- No plain, speedy, and adequate remedy is unavailable to the party that filed the petition;36
- A clear, present, and usually ministerial duty existed on the part of the entity against whom the petition is filed;37 and
- The party bringing the petition possessed beneficial interest in the performance of that duty.38
If the party bringing the petition is able to satisfy these three requirements, courts will usually grant the petition for writ of mandate.39
No Adequate Alternative Procedure
A writ of mandate will usually only issue if there is no adequate remedy at law exists.40 This means that if there is an alternative remedy available (like an appeal, for example) courts will not grant a writ of mandate.41
An adequate remedy will usually exist where the issue can be challenged later on appeal, or through a different court or administrative procedure.42 The question usually comes down to whether procedures are available that will properly afford a party the relief to which they are entitled.43 The issue is determined based on the specific circumstances of the case.44
Importantly, an adequate remedy will not exist if the party that filed the petition will suffer an irreparable injury if the writ is not granted.45 This is often the case where delay will case harm that cannot be undone. Courts have emphasized that an irreparable injury is not merely an irreparable inconvenience.46 The injury must be substantial and will usually involve a party’s rights—not mere expense.
Where a trial court ordered a party to disclose confidential communications between a patient and his psychotherapist, the order was reviewable through a writ of mandate.
An appeal would not have been adequate because waiting until the conclusion of trial would have forced the party to either: violate the confidential relationship, or violate the trial court’s order.47
Although the inadequacy of other remedies is a requirement for most cases, courts will sometimes exercise their discretion to grant a writ of mandate where the issues presented are of great public importance and must be resolved promptly.48 But, if the party bringing the petition can meet this requirement, they may be entitled as a matter of right to have the writ granted.49
Finally, the party bringing the petition cannot be responsible for the lack of an adequate alternative remedy, unless they have a good excuse. If, for example, they failed to file a timely appeal or let their rights lapse, a writ of mandate will not be appropriate—courts will consider the adequate alternative to exist and to have been forfeited.50
A Ministerial Duty
In addition to the inadequacy of legal remedies, courts will consider whether the entity against whom the petition is filed possessed a clear, present, and ministerial duty to perform an act in a specific way.51
A ministerial duty in this context is defined as an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exist. This almost always involves a public official or other person in a public office who, by virtue of that position, is obligated to perform in a prescribed manner required by law.52
Courts are more likely to find in the petitioner’s favor on this issue if the public officer exercised their own judgment instead of following the rules prescribed by law.53
A Beneficial Interest
Finally, the party seeking the petition must possess a beneficial interest in the performance of the challenged duty.54 To establish this, the petitioner must demonstrate they have some direct and substantial interest, over and above the interest held in common with the public at large, that the writ of mandate would protect.55
Generally, beneficially-interested parties are entities that have been or will be adversely affected by governmental action or inaction.56 A writ of mandate will be denied if the party seeking it will gain no direct benefit from its issuance and suffer no direct harm without it.57
There is an important exception to the beneficial right requirement. An entity can seek a writ of mandate, even though not beneficially interested, the case involves an important public right and the object of the action is to enforce a public duty.58 The public interest exception is a very fact-specific analysis, where a court will generally weigh the interest of the general public against the impact that allowing the exception would have on the real party in interest.59
Situations in Which the Writ Might Be Appropriate
A petition for writ of mandate will generally seek one of two types of writs:
- Statutory Writ of Mandate. If the writ of mandate has been specifically authorized by the California State Legislature, it is called a statutory writ of mandate.60
- Common Law Writ of Mandate. If the authority for a writ of mandate is located outside of statutes, it is called a common law writ of mandate.61 In these types of cases, the origin of the writ is provided by the California Constitution or written decisions in cases published by California courts.
When a writ of mandate is pursued as a common law writ, the court’s decision will generally be governed by guiding principles set out in prior court opinions. This is different than statutory writs, which are controlled by strict rules laid out in statutes.
Different situations will call for different strategies in pursuing a writ of mandate.
The Statutory Writ of Mandate
The California State Legislature has specifically authorized the writ of mandate in relatively large number of situations. Those generally involve the review of certain orders where no appeal is available.
Among others, a statutory writ of mandate petition can be filed to challenge the following:
- Denials of Summary Judgment. An order denying a motion for summary judgment may be challenged by a petition for writ of mandate.62
- Summary Adjudication Orders. A petition for writ of mandate is appropriate to challenge an order granting or denying a motion for summary adjudication.63
- Judge Disqualifications. Normally, an order granting or denying a motion to disqualify a judge is not appealable. It can, however, be pursued through a petition for writ of mandate.64
- Venue Challenges. A petition for writ of mandate is appropriate to challenge an order granting or denying a motion to change the place of trial.65
- Forum Challenges. An order granting or denying a motion to stay or dismiss a case due to an inconvenient forum may be challenged through a petition for writ of mandate.66
- Motions to Reclassify. An order granting or denying a motion to reclassify an action may be challenged through a petition for writ of mandate.67
- Motions to Expunge Lis Pendens. Lis pendens is a recorded notice to potential purchasers of property that pending court actions may affect the property’s title. A motion to expunge lis pendens is essentially a motion to remove the recorded notice. If a court grants or denies such a motion, the court’s order is reviewable by a higher court through a petition for writ of mandate.68
- Settlement Orders. An order granting or denying a motion for good faith settlement may be challenged through a petition for writ of mandate.69
- Motions to Quash Service. A petition for writ of mandate is appropriate to challenge an order granting or denying a motion to quash service of summons.70
- Certain Evidentiary Challenges. An order denying a motion to suppress evidence in a criminal case may be challenged through a petition for writ of mandate.71
This list is, of course, not exhaustive. The legislature has expressly authorized writs of mandate in several other situations.
The Common Law Writ of Mandate
The common law writ of mandate has been used to correct abuses of discretion or compel entities to act in a wide variety of situations. A few examples are listed below.
- Correcting Discovery Abuses. Courts have used the common law writ of mandate to reverse clear abuses of discretion in the discovery setting.72
- Protecting Attorney-Client Privilege. California courts have used the writ of mandate to reverse court orders that would result in an irreversible disclosure of materials protected by attorney-client privilege.73
- Protecting the Right of Privacy. The writ of mandate will sometimes be appropriate to prevent the disclosure of personal information that could undermine important public policy goals.74
- Answering Jurisdictional Questions. The writ of mandate is sometimes appropriate to either attack a court’s jurisdiction in a case, or to compel the court to hear a case where it has incorrectly concluded that it has no jurisdiction.75
- Reviewing Non-Appealable Arbitration Orders. When a superior court orders parties to participate in arbitration and that order is not reviewable by an appeal, a writ of mandate is sometimes appropriate.76
- Correcting Some Demurrer Orders. When a demurrer is granted on some, but not all, causes of action without leave to amend, review through a petition for writ of mandate may be appropriate.77 And at least one California court has granted a petition for writ of mandate where the superior court improperly denied a demurrer.78
Again, this list is not exhaustive. Because the common law writ of mandate is governed only by general legal principles, there many other situations in which seeking it might be appropriate.
Preparing a Petition for a Writ of Mandate
Deadline to File
A petition for writ of mandate must be timely. The exact deadline will vary.
If, however, there is no prescribed statutory deadline, appellate courts have the authority to consider a petition for writ of mandate at any time.81 But, unless there is a very good reason, courts will usually require the petition to be filed within 60 days of when the challenged order was serviced.82
If the challenged order was never served on the parties, a court might entertain a petition as late as 180 days from the date that the order was entered.83 But this situation would be rare.
What a Writ Petition Should Include
A writ petition should usually be composed of several parts, all of which must be formatted according to the applicable court’s rules:84
- Cover Page. If the writ petition is being filed in the court of appeal, the cover page must be red.85 The cover page usually includes the caption of the parties, the court’s name, the numbers of any related cases, the title of the document, a description of the lower court, and the contact information of the filing party (or the attorney for the filing party).
- The Petition. The actual writ petition must: (1) explain why the reviewing court should issue the writ, (2) name the responding party and disclose the name of any real part in interest, (3) include a notice of any related appeals that may be pending, and (4) be verified.86 It is also usually a good idea to provide a brief introduction to the facts and the issues in the petition, with appropriate citations.87
- A Memorandum. The petition must include a memorandum of points and authorities that explains the legal basis for the petition. It should not restate any facts included in the petition, but should include citations to legal authorities and any exhibits or the trial court record.88
- An Adequate Record. Petitions must be accompanied by an record that is adequate for the reviewing court to know the all relevant facts of the case.89 If the party is challenging a court decision, the record should include a reporter’s transcript of the hearing and a clerk’s transcript of any documents relevant to the decision, including the filings of both parties and the order itself (if written).90
- Exhibits or Declarations If the record of the earlier proceedings is insufficient, it may be necessary to supplement it with additional information. This might mean furnishing a copy of exhibits,91 or presenting the court with declarations and supporting materials.92
- Certificate of Interested Parties. The California Rules of Court require parties in many civil cases to serve and file a certificate of interested parties, which discloses the parties that have financial interests in the case.93 The courts provide a specific form for this purpose.
- Filing Fees. Filing a petition for writ of mandate will usually require a filing fee. The amount of the fee will depend on the court in which the petition is being filed. In some cases, a fee waiver can be obtained.
In addition to these items the local court rules may impose additional requirements on the parties, so it is important to review all court rules before filing.
Requesting a Stay
There are special requirements for petitions that request a stay in a lower court’s proceedings. A stay is an order that stops the proceedings in a lower court from moving forward while the petition is pending.
If court procedures allow it, a stay should first be filed in the lower court.94 If that is not possible, the writ petition can request a stay. To request a stay in the writ petition, the petition should:
- Include on the cover page the words “STAY REQUESTED” and identify the proceeding or act sought to be stayed.95
- Include text on the cover page or near the beginning of the petition that states the trial court and department involved and the name and telephone number of the trial judge whose order the request seeks to stay.96
- Include in the body of the petition an explanation of why a stay is urgently needed.97
If the petition seeks a stay, it should also be personally served on the opposing party.
Writs of Administrative Mandamus Compared
The writ of administrative mandate (sometimes called the writ of administrative mandamus) is similar to a normal writ of mandate, except that the California legislature has specifically authorized it to be issued by superior courts to compel administrative agencies to do or not do something.98
Function of the Writ
The writ of administrative mandate provides a way for aggrieved parties to challenge the final decisions or orders of administrative agencies where no other adequate remedies are available.99
Because the writ of administrative mandate is limited to final decisions or orders, it is not available to challenge rules or regulations adopted by an administrative agency.100 But a normal writ of mandate petition might still be available.101
If an administrative agency has a procedure for parties to appeal its decisions, the writ of administrative mandate is usually not available until after that appeal has been exhausted.102
Prerequisites to Filing
There are four prerequisites that must be met before an administrative agency’s decision can be reviewed through a writ of administrative mandate:
- Hearing. The administrative agency conducted a hearing, and the hearing was required by law.103
- Evidence. In reaching its decision, the administrative agency took evidence and the taking of evidence was required by law.104
- Discretion. The administrative agency exercised discretion in making its decision, and the exercise of discretion was required by law.105
- Finality. The agency rendered a final order or decision.106
If any of these elements are not met, a writ of administrative mandate is not appropriate. But a normal writ of mandate might still be available.107 An appeal might also be available at a later time.
Types of Successful Arguments
The requirements listed above must be met before the writ of administrative mandate will even be entertained. To be successful, a petition for writ of administrative mandate must demonstrate one of the following:108
- The administrative agency’s hearing or decision was in excess of its jurisdiction,
- The administrative agency failed to proceed in a manner required by law,
- The hearing was conducted in an unfair manner (i.e., there was no fair trial),
- The administrative agency’s order or decision was not supported by the findings, or
- The administrative agency’s findings were not supported by the evidence.109
When a court analyzes whether these elements are met, it will generally give the administrative agency’s decision deference.110 As such, where there is conflicting evidence, the disagreement will generally be resolved in favor of what the administrative agency previously decided.111
Pursuing a petition for writ of mandate (or a petition for writ of mandamus) can often be a complex venture. It’s usually helpful to have an attorney experienced in filing writ petitions.
If you are interested in filing a petition for writ of mandate in California, you should consider hiring a qualified writs and appeals attorney to advise you.
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Code Civ. Proc., § 1084 [“The writ of mandamus may be denominated a writ of mandate.”].Footnote 1
City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925 [“Mandate is the principal extraordinary writ surviving under California law.”].Footnote 2
Baldwin-Lima-Hamilton Corp. v. Superior Court of San Francisco (1962) 208 Cal.App.2d 803, 823 [“While mandamus will not lie to control the discretion exercised by a public officer or board [citations] it will lie to correct an abuse of discretion by such officer or board.”].Footnote 3
San Francisco v. Superior Court of San Francisco (1928) 94 Cal.App. 318, 320; Code Civ. Proc., § 1085 [“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.”].Footnote 4
Rli Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 433 [“For our writs of mandate to issue, we must be convinced that the trial court abused its discretion . . . .”]; Riverside Sheriff’s Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289 [“In order to obtain an ordinary writ under Code of Civil Procedure section 1085 a petitioner must show that there is no other plain, speedy and adequate remedy, that the respondent has failed to perform an act despite a clear, present and ministerial duty to do so, and that the petitioner has a clear, present and beneficial right to that performance.”].Footnote 5
Baldwin-Lima-Hamilton Corp. v. Superior Court of San Francisco (1962) 208 Cal.App.2d 803, 823.Footnote 6
City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 927 [“It is true, however, that mandate will sometimes lie against a private person to compel performance of a duty.”].Footnote 7
See, e.g., Johnson v. Langdon (1902) 135 Cal. 624, 626 [“The remedy by mandamus is the appropriate remedy of the stockholder in case of a refusal of the statutory right.”]; Liberal Catholic Church v. Rogers (1944) 65 Cal.App.2d 196, 199.Footnote 8
Code of Civ. Proc., § 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.”].Footnote 9
Cal. Const., art. VI, § 1 [“The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record.”].Footnote 10
See Cal. Rules of Court, rule 8.100 [“To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court. The appellant or the appellant’s attorney must sign the notice.”].Footnote 11
See Code Civ. Proc., § 901; Leone v. Medical Board (2000) 22 Cal.4th 660, 666 [“[T]he ordinary and widely accepted meaning of the term ‘appellate jurisdiction’ is simply the power of a reviewing court to correct error in a trial court proceeding.”].Footnote 12
Leone v. Medical Board (2000) 22 Cal.4th 660, 666 [“[T]he ordinary and widely accepted meaning of the term ‘appellate jurisdiction’ is simply the power of a reviewing court to correct error in a trial court proceeding. By common understanding, a reviewing court may exercise this power in the procedural context of a direct appeal or a writ petition.”].Footnote 13
Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240 [“The California Constitution grants the courts original jurisdiction in proceedings seeking extraordinary relief in the form of writs of mandamus, prohibition, and certiorari.”]; Ex parte Fahey (1947) 332 U.S. 258, 259–260 [67 S.Ct. 1558, 1559] [“Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as substitutes for appeals. As extraordinary remedies, they are reserved for really extraordinary causes.”].Footnote 14
Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1100 [“[P]erhaps the most fundamental reason for denying writ relief is the case is still with the trial court and there is a good likelihood purported error will be either mooted or cured by the time of judgment.”].Footnote 15
Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101, fn. 1.Footnote 16
Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1221 [“Writ review is deemed extraordinary and appellate courts are normally reluctant to grant it.”].Footnote 17
See, e.g., Oceanside Union School Dist. v. Superior Court of San Diego County (1962) 58 Cal.2d 180, 185, fn. 4 [“The prerogative writs have been used frequently to review interim orders in discovery cases [Citations]. But this does not mean that these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous. In most such cases, as is true of most other interim orders, the parties must be relegated to a review of the order on appeal from the final judgment.”].Footnote 18
But see City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925 [“It is said that the writ rests in the discretion of the issuing court, but becomes a matter of right when the plaintiff shows that ‘there is not a plain, speedy, and adequate remedy, in the ordinary course of law.'”], quoting May v. Board of Directors (1949) 34 Cal.2d 125, 133; see also Code Civ. Proc., § 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.”], emphasis added.Footnote 19
Pacific Tel. & Tel. Co. v. Superior Court of San Diego County (1970) 2 Cal.3d 161, 170 [“[A]ppellate courts must keep in mind that too lax a view of the ‘extraordinary’ nature of prerogative writs, rendering substantial pretrial appellate delay a usual hazard of the use of discovery, is likely to result in more harm to the judicial process than the denial of immediate relief from less significant errors.”]; McDaniel v. San Francisco (1968) 259 Cal.App.2d 356, 360 [“[T]he writ is an equitable remedy, and will not always issue as a matter of right.”].Footnote 20
Cinel v. Christopher (2012) 203 Cal.App.4th 759, 766, fn. 4 [“[U]nlike appeals, which are heard as a matter of right, writ review is deemed extraordinary and is discretionary and rarely granted.”]; Code Civ. Proc., § 902 [“Any party aggrieved may appeal in the cases prescribed in this title. A party appealing is known as an appellant, and an adverse party as a respondent.”].Footnote 21
Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274.Footnote 22
Britt v. Superior Court (1978) 20 Cal.3d 844, 851–852.Footnote 23
Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807.Footnote 24
Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378.Footnote 25
Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517.Footnote 26
Phelan v. Superior Court (1950) 35 Cal.2d 363, 370–372.Footnote 27
Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 [125 Cal.Rptr. 553, 542 P.2d 977]; Roberts v. Superior Court (1973) 9 Cal.3d 330.Footnote 28
Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274.Footnote 29
See Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241, fn. 3 [noting that in 2010 “approximately 94 percent of the petitions seeking writ relief in the Courts of Appeal are denied summarily.”].Footnote 30
See Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1101 [“[A]ppellate review these days, in consideration of our overly crowded dockets and generally understaffed Courts of Appeal, is unduly delayed, and cannot be compared to writ review in terms of time effectiveness.”]; Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1274 [“It is true that mandate, in certain instances, provides a more effective remedy than does appeal for the purpose of reviewing an order denying severance.”].Footnote 31
Powers v. City of Richmond (1995) 10 Cal.4th 85, 114 [“[W]hen writ review is the exclusive means of appellate review of a final order or judgment, an appellate court may not deny an apparently meritorious writ petition, timely presented in a formally and procedurally sufficient manner, merely because, for example, the petition presents no important issue of law or because the court considers the case less worthy of its attention than other matters.”].Footnote 32
Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 576, fn. 6.Footnote 33
Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 859Footnote 34
Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1132 [“A person or entity whose interest will be directly affected by writ proceedings has standing to appear in a writ matter.”].Footnote 35
Code Civ. Proc., § 1086.Footnote 36
Code Civ. Proc., § 1085.Footnote 37
Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [“‘As a general rule, a party must be “beneficially interested” to seek a writ of mandate. [Citation.]’ [Citation.] The beneficial interest must be direct and substantial.”].Footnote 38
Code Civ. Proc., § 1086.Footnote 39
Code Civ. Proc., §§ 1085, 1086; Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.Footnote 40
W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist. (1959) 176 Cal.App.2d 67, 75 [“The issuance of mandamus depends . . . upon the absence of another adequate remedy.”].Footnote 41
Ex parte Fahey (1947) 332 U.S. 258, 260 [67 S.Ct. 1558, 1559] [writs not a substitute for appeals].Footnote 42
Carter v. Superior Court of Los Angeles County (1950) 96 Cal.App.2d 388, 392.Footnote 43
San Francisco v. Superior Court of San Francisco (1928) 94 Cal.App. 318, 320 [“What is a plain, speedy, and adequate remedy in the ordinary course of law is always a question of fact to be determined upon the circumstances of each case, and when it appears that the ordinary remedies would not be plain, speedy, and adequate the court has jurisdiction to entertain the proceeding, and the petitioner is then entitled to the writ as a matter of right.”].Footnote 44
Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101, fn. 1.Footnote 45
Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101, fn. 1 [“Prerogative writs should issue where irreparable injury is threatened, but rarely otherwise. A trial does not generally meet the definition of “irreparable injury,” being at most an irreparable inconvenience.”].Footnote 46
Roberts v. Superior Court (1973) 9 Cal.3d 330, 336.Footnote 47
Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328 [” Although the job search orders are appealable as orders made after judgment [citation], we nonetheless conclude petitioners’ claims warrant extraordinary relief because ‘”the issues presented are of great public interest and must be resolved promptly.”‘”]; Silva v. Superior Court (1993) 14 Cal.App.4th 562, 574 [reaching a similar conclusion].Footnote 48
Nielsen v. Richards (1924) 69 Cal.App. 533, 547 [“Where one has a substantial right which may be enforced by mandamus, ‘and there is no other plain, speedy, and adequate remedy in the ordinary course of law, he is entitled as a matter of right to the writ.'”], quoting Gay v. Torrance (1904) 145 Cal. 144, 148.Footnote 49
County of Tulare v. Woody (1933) 132 Cal.App. 459, 462 [“petitioner did have a legal remedy which was ‘equally convenient, beneficial, and effective’ and if by reason of its neglect that remedy is no longer available the remedy here sought should not be granted”]; Wadey v. Justice Court, Upland Judicial Dist. (1959) 176 Cal.App.2d 426, 428–429.Footnote 50
Code of Civ. Proc., § 1085; Jenkins v. Knight (1956) 46 Cal.2d 220, 222 [“[I]t has been consistently held for more than three quarters of a century that the writ will issue to compel a governor to perform ministerial acts required by law.”].Footnote 51
People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1295.Footnote 52
Jenkins v. Knight (1956) 46 Cal.2d 220, 223–224 [“The critical question in determining if an act required by law is ministerial in character is whether it involves the exercise of judgment and discretion.”]; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1295.Footnote 53
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165 [“As a general rule, a party must be ‘beneficially interested’ to seek a writ of mandate.”].Footnote 54
Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [“The beneficial interest must be direct and substantial.”]; Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [“The requirement that a petitioner be ‘beneficially interested’ has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”].Footnote 55
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 913.Footnote 56
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 170.Footnote 57
Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [“The ‘public interest’ exception also confers standing where the question is one of an important public right and the object of the action is to enforce a public duty.”].Footnote 58
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 170.Footnote 59
Duval v. Contractors State License Board (1954) 125 Cal.App.2d 532, 535 [“Statutory writs of mandate are specifically authorized to review the decisions of state-wide agencies”].Footnote 60
People v. Mena (2012) 54 Cal.4th 146, 155, fn. 10 [“‘A “statutory writ” is not an independent type of writ; the term simply refers to particular situations in which review by a common law writ (mandate, prohibition or certiorari) is expressly authorized by statute.'”], citations omitted.Footnote 61
Code Civ. Proc., § 437c, subd. (m)(1).Footnote 62
Code Civ. Proc., § 437c, subd. (m)(1).Footnote 63
Code Civ. Proc., § 170.3, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding.”].Footnote 64
Code Civ. Proc., § 400.Footnote 65
Code Civ. Proc., § 418.10, subd. (c).Footnote 66
Code Civ. Proc., § 403.080 [“When an order is made by the superior court granting or denying a motion to reclassify an action or proceeding pursuant to Section 403.040, the party aggrieved by the order may, within 20 days after service of a written notice of the order, petition the court of appeal for the district in which the court granting or denying the motion is situated for a writ of mandate requiring proper classification of the action or proceeding pursuant to Section 403.040.”].Footnote 67
Code Civ. Proc., § 405.39 [“Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate.”].Footnote 68
Code Civ. Proc., § 877.6, subd. (e) [“When a determination of the good faith or lack of good faith of a settlement is made, any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate.”].Footnote 69
Code Civ. Proc., § 418.10, subd. (c).Footnote 70
Pen. Code, § 1538.5, subd. (i) [“After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.”].Footnote 71
See, e.g, Abex Corp. v. Superior Court (1989) 209 Cal.App.3d 755, 757 [“The instant case represents a clear abuse of discretion and is appropriate for resolution by prerogative writ.”]; Lehman v. Superior Court (1986) 179 Cal.App.3d 558, 562 [“Ordinarily the prerogative writ is not a favored method of obtaining review of discovery orders [citation], but it is appropriate where an abuse of discretion results in a denial of discovery.”].Footnote 72
Roberts v. Superior Court (1973) 9 Cal.3d 330, 336 [“The need for the availability of the prerogative writs in discovery cases where an order of the trial court granting discovery allegedly violates a privilege of the party against whom discovery is granted, is obvious.”]; City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023.Footnote 73
Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1883–1884 [writ review was appropriate where the issue involved a litigant’s constitutionally-protected right of privacy]; Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 355 [“the issue is important and merits writ review because Planned Parenthood seeks to protect the constitutional rights of third parties and because no adequate remedy other than writ review is available.”];Footnote 74
Bearman v. Superior Court (2004) 117 Cal.App.4th 463 [writ of mandate granted to protect the privacy of medical records].
See, e.g., Stewart v. Superior Court of Los Angeles County (1946) 29 Cal.2d 63, 66 [“Where a superior court erroneously dismisses an appeal on the theory that it has no jurisdiction, mandamus will lie to compel it to proceed to hear and decide the cause.”]; Andrews v. Superior Court of San Joaquin County (1946) 29 Cal.2d 208, 214–215 [writ of mandate appropriate to attack a void judgment where no appeal was available].Footnote 75
See, e.g., Cook v. Superior Court of Los Angeles County (1966) 240 Cal.App.2d 880, 884 [“mandamus will lie to correct a nonappealable order compelling arbitration and staying proceedings.”]; Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 160 [“California courts have held that writ review of orders compelling arbitration is proper in at least two circumstances: (1) if the matters ordered arbitrated fall clearly outside the scope of the arbitration agreement or (2) if the arbitration would appear to be unduly time consuming or expensive.”].Footnote 76
Driscoll v. Superior Court (2014) 223 Cal.App.4th 630, 636 [“When a demurrer is sustained without leave to amend to fewer than all of the causes of action, review through a petition for extraordinary relief may be appropriate.”].Footnote 77
Fair Employment & Housing Com. v. Superior Court (2004) 115 Cal.App.4th 629, 633 [“Where there is no direct appeal from a trial court’s adverse ruling, and the aggrieved party would be compelled to go through a trial and appeal from a final judgment, a petition for writ of mandate is allowed. [Citation.] Such a situation arises where the trial court has improperly overruled a demurrer.”].Footnote 78
See, e.g., Sturm v. Superior Court (1985) 164 Cal.App.3d 579, 581.Footnote 79
See, e.g., Code Civ. Proc., §§ 400 [20 days], 418.10, subd. (c) [10 days]. 437c [20 days].Footnote 80
Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499 [“An appellate court may consider a petition for an extraordinary writ at any time . . . .”].Footnote 81
Cal West Nurseries v. Superior Court (2005) 129 Cal.App.4th 1170, 1173.Footnote 82
American Property Management Corp. v. Superior Court (2012) 206 Cal.App.4th 491, 499.Footnote 83
See Oaks Management Corporation v. Superior Court (2006) 145 Cal.App.4th 453, 461, fn. 4 [respondent seeking dismissal of petition on the grounds that it failed to include numbered paragraphs].Footnote 84
Cal. Rules of Court, rule 8.40.Footnote 85
Cal. Rules of Court, rule 8.486, subd. (a).Footnote 86
Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 938 [“Absent a factual statement of the nature of petitioners’ complaint in the trial court, we cannot determine whether the second cause of action to which the demurrer was sustained is legally sufficient.”].Footnote 87
Cal. Rules of Court, rule 8.486, subd. (a)(5) [“The petition must be accompanied by a memorandum, which need not repeat facts alleged in the petition”].Footnote 88
Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186–187 [“A defendant seeking review of a ruling of the trial court by means of a petition for extraordinary writ must provide the appellate court with a record sufficient to permit such review. [Citations.] The record must if possible be lodged with the appellate court at the time the original petition for writ is filed. To be adequate, such a record should ordinarily include any written motion and opposition thereto together with their respective points and authorities, any relevant pleadings or reporter’s transcripts, and any written dispositive order.”].Footnote 89
Cal. Rules of Court, rule 8.486, subd. (b); Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1847, fn. 8 [“At the outset we note that we would have had good reason to deny this writ petition summarily. It is petitioner’s burden to provide this court with a record sufficient to permit review of the challenged ruling. To be adequate, such a record should include a reporter’s transcript of the hearing on the motion which resulted in the ruling adverse to petitioner.”].Footnote 90
Sherwood v. Superior Court (1979) 24 Cal.3d 183, 187 [“Whenever the consideration of an exhibit is necessary for a complete understanding of the case, a copy thereof must also be furnished.”].Footnote 91
McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1030, fn. 3 [“Although the Veit declaration was not before respondent, on an original petition for mandamus relief, the reviewing court in its discretion may consider it together with all other relevant evidence.”].Footnote 92
Cal. Rules of Court, rules 8.208, 8.488.Footnote 93
Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 157 [“An application for a stay of a judgment should, wherever possible, be made first in the superior court.”].Footnote 94
Cal. Rules of Court, rule 8.486, subd. (a)(7)(B).Footnote 95
Cal. Rules of Court, rule 8.486, subd. (a)(7)(C).Footnote 96
Cal. Rules of Court, rule 8.486, subd. (a)(7)(A).Footnote 97
Code Civ. Proc., § 1094.5.Footnote 98
Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321, 329 [“[T]he law is now established that mandamus is the remedial writ which will be used to correct those acts and decisions of administrative agencies which are in violation of law, where no other adequate remedy is provided.”].Footnote 99
Lewin v. St. Joseph Hospital (1978) 82 Cal.App.3d 368, 383Footnote 100
Wilson v. Hidden Valley Municipal Water Dist. (1967) 256 Cal.App.2d 271, 278 [“[S]ince we conclude below that the board was exercising quasi-legislative powers in passing upon the two petitions, the judicial review of such action made by the trial court in this case had to be made under ordinary mandamus (Code Civ. Proc., § 1085) and not under administrative mandamus.”].Footnote 101
McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 285 [“Where an administrative appeal is available but ‘no appeal is taken, there is a failure to exhaust administrative remedies, and mandamus will not lie.'”], quoting Grant v. Superior Court (1978) 80 Cal.App.3d 606, 609.Footnote 102
Harris v. Civil Serv. Com (1998) 65 Cal.App.4th 1356, 1363.Footnote 103
Harris v. Civil Serv. Com (1998) 65 Cal.App.4th 1356, 1363.Footnote 104
Harris v. Civil Serv. Com (1998) 65 Cal.App.4th 1356, 1363.Footnote 105
Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820, 826 [“The writ of mandate is appropriate for the purpose of reviewing the final orders and decisions of an administrative agency exercising quasi-judicial powers.”].Footnote 106
Harris v. Civil Serv. Com (1998) 65 Cal.App.4th 1356, 1363 [“Unless (1) a hearing, (2) the taking of evidence and (3) discretion to determine facts are all required “by law” (§ 1094.5, subd. (a)), review can be had only by traditional mandate . . . .”].Footnote 107
Code Civ. Proc., § 1094.5, subd. (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.”].Footnote 108
Code Civ. Proc., § 1094.5, subd. (b); Harris v. Civil Serv. Com (1998) 65 Cal.App.4th 1356, 1364 [“Administrative mandate tests a decision for abuse of discretion, defining this as (1) the agency not proceeding in the manner required by law, (2) the decision not being supported by its findings or (3) its findings not being supported by substantial evidence.”].Footnote 109
Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 109 [“Section 1094.5 was designed to give great deference and respect to administrative orders and findings. It sets narrow limits on a party’s ability to obtain a new administrative hearing, and part of those limits include narrow restrictions on discovery and augmenting the administrative record.”].Footnote 110
Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308.Footnote 111