A petition for writ relief is an equitable proceeding compelling performance of or forbearance on an official act or duty. (Bruce v. Gregory (1967) 65 Cal.2d 666.) Few practitioners understand the intricacies of writ procedure, mainly because they are not used as often as civil complaints, and procedural rules are both sparse and, when rules do exist, they are often.

Generally, writ petitions are brought in the Superior Court to review acts or refusal to act by a public agency or official and in the Court of Appeal to review the decisions of the Superior Court. This note will discuss civil writs.

The law authorizes several kinds of civil writs, for example, prohibition, certiorari, writ of possession, and writ of sale. (See Code of Civil Procedure (“CCP”) §§1102-1105, 1067-1077.)

The most common writ by far is a writ of mandamus. “Mandamus” means to compel an action. Mandamus was defined in Marbury v. Madison, 5 US 137 (1803):

“A writ of mandamus is directed to an officer of the government, and its mandate to him to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously interpreted, or at least supposes, to be consonant to right and justice.”

Because mandamus is a writ that compels an action rather than prohibits or prevents an action, writs of “mandamus” and “prohibition” are often sought in the alternative.

There are two types of mandamus writs: traditional (CCP §1085), and administrative (CCP §1094.5). It is not inconsistent for a court to issue both administrative and traditional writs of mandamus. (City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734.) Where in doubt, plead them both.

And, two different kinds of relief may be sought by a writ petition: temporary relief and permanent relief. Procedures differ depending on which kind of writ you seek and what kind of relief.

Temporary relief, sometimes called a stay or an alternative writ, may be sought to preserve the status quo pending the court’s final decision or to prevent irreparable and immediate harm. In rare instances, a peremptory writ may be issued immediately by the reviewing court, or the respondent ordered to show cause why permanent relief should not be granted. (See CCP §§1087 and 1088.)

Administrative mandamus seeks review of an act or decision by an administrative agency, for example, revocation of a license to practice medicine by the Board of Medical Quality Assurance. Procedures differ depending on whether you seek review of an act regulated by the Administrative Procedures Act (“APA”) (Gov. Code §§11500-11529) or one that is not regulated by the APA.

Traditional mandamus is often authorized by a specific statute. See, for example, CCP §405.39 authorizing appellate review of a Superior Court order expunging a lis pendens.

In order to qualify for traditional mandamus relief, a petitioner must show that the public agency has a clear and present ministerial duty to act, petitioner has a clear, present, and beneficial right to performance (CCP §1086), and that no plain, speedy, and adequate remedy is available at law. (CCP §1086.) For administrative mandamus, a petitioner must also show that petitioner exhausted all available administrative remedies. (CCP §1094.5(a).) If the agency proceeding took place pursuant to the APA, mandamus is available only where an evidentiary hearing was required by law, even where the administrative decision was based solely on documents without oral testimony.  (Friends of the Old Trees v. Dept. of Forestry (1997) 52 Cal.App.4th 1383.) In addition, petitioner must show that the agency rendered a discretionary, rather than ministerial, decision. (Ocean Park Assoc. v. Santa Monica Rent Control Bd. (2004) 114 Cal.App.4th 1050, 1061.)

Previous Post
I Lost My Trial. Can I Appeal My Case?
Next Post
Ninth Circuit invalidates IRS Publication 1
Menu