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Court of Appeal

FOURTH APPELLATE DISTRICT


Division One
750 B Street, Suite 300
San Diego, CA 92101

HANDOUT ON WRITS

Preliminary Note

This handout is intended to demystify the process for the practitioner and layperson
who may be contemplating filing a petition for writ of mandate, writ of prohibition or
writ of supersedeas. It does not address petitions for writ of review, petitions for writ of
habeas corpus or other specialized petitions.

The court recognizes that writ petitions are frequently prepared in a hurry, are often
filed by counsel or parties with limited experience in the world of writs and may be the
only avenue of relief. As such, the court takes a relatively informal approach to writ
procedure. The court will treat your petition as having the proper label -- deem it a
petition for writ of mandate, for example, although you improperly prayed for writ of
prohibition. The court may likewise call the parties if, for example, an exhibit is missing.

There are, however, certain requirements that are crucial to writ success. This handout
focuses on those requirements.

General Considerations

The trial court has just made an adverse ruling that you believe is critical to your case.
What can you do? You may want to consider filing a petition for a writ.

When you file a petition for a writ in an appellate court, you are asking that court to
order an inferior tribunal, usually the superior court, to do something or refrain from
doing something. You are saying the trial court made a mistake and you cannot wait for
an appeal.

The first thing to think about in considering whether to file a petition for a writ is
whether there is an adequate remedy at law (i.e., is the order appealable or is the issue
one usually handled on appeal?). Check Code of Civil Procedure section 904.1 for a list
of appealable orders. Look at the cases dealing with the issue in question to see if they are
appellate opinions or writ opinions.

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If the order is not appealable, the next item to consider is whether irreparable injury
will result absent immediate relief. Generally, money damages are not considered to be
irreparable injury and the total of who owes what to whom can be figured out at the end
of the case. The threatened loss of petitioner's home may be irreparable injury, although
the threatened foreclosure of unimproved commercial property may not be. Release of
privileged information, disclosure of work product and invasion of privacy interests
ordinarily qualify as irreparable injury. You need to judge the circumstances and how
severe the consequences will be without writ relief.

Preparing a Petition

Because a writ petition can be denied merely because it is incomplete, it is very


important that you file a complete petition. The petition has three parts: 1) the petition
itself; 2) the points and authorities; and 3) the exhibits.

The petition itself is the only new material that needs to be prepared. The petition
should be verified by counsel as to the facts within his or her knowledge and by the
petitioner as to the facts within petitioner's knowledge. You should include within the
petition the name and status of each party, the background and procedural history of the
questioned order, the action of the lower tribunal and an explanation of how the tribunal
erred, why appeal is inadequate and how the harm is irreparable.

The parties in a writ proceeding differ from those in the underlying case. The party
filing the petition is the "petitioner", the tribunal making the contested order is the
"respondent", and the party who prevailed below is the "real party in interest".

The heart of your petition should focus on the inadequacy of appeal and irreparable
nature of the injury. The handling of writs is within the discretion of the court. The
appellate court does not have to grant writ relief just because the lower court erred.
Therefore, you must convince the court why it should entertain the issue by writ instead
of a regular appeal where the court decides the matter with a full record and less time
pressure.

If time is extremely short, you can prepare the points and authorities by photocopying
the points and authorities used in the lower court or by incorporating your points and
authorities by reference to an exhibit. However, the better practice is to redraft the points
and authorities to respond to the reasons given by the lower court in its ruling.

You should attach as exhibits all papers presented to the lower court for consideration
in making its ruling. This includes copies of the moving papers, the opposition, the
reply, relevant pleadings, a transcript of the hearing and a copy of the challenged order.

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If a transcript is not available, include a statement explaining why the transcript is
unavailable and fairly summarizing the proceeding; or else a statement that the transcript
has been ordered and the date it will be available. Additional factual material may be
presented to the appellate court by declaration supported with appropriate documents and
an explanation why the material was not presented to the lower court.

The color for the cover of the writ petition, exhibits and the answer is red.

Stays

There are two situations in which the Court of Appeal may, if requested, grant a stay.
First, the court may stay enforcement of the challenged order or proceedings in the trial
court while it is reviewing the writ petition. Second, the court may stay a judgment
during the period of appeal.
A. Stay of trial court proceedings

If petitioner seeks a stay of the contested order or the trial proceedings in general, he
or she should first ask the trial court (or agency below) for a stay. Petitioner should
advise the Court of Appeal whether he or she requested a stay from the lower tribunal
(and, if not, why not) and include any relevant orders granting or denying the request.
Petitioner must specify exactly what needs to be stayed, when the stay goes into effect
and whether the stay will prejudice any of the parties.

The Court of Appeal may issue a stay without first soliciting or receiving a response.
(Ct. App., Fourth Dist., Local Rules, rule 1, Requests for An Immediate Stay or Other
Immediate Relief in Writ Proceedings.) Therefore, if you wish to oppose a request for
stay, call the Clerk's Office immediately and let the court know that you will be filing
opposition.

A petitioner who requests a stay, immediate relief or a writ of supersedeas must place
"STAY REQUESTED", "IMMEDIATE RELIEF REQUESTED" or words of similar
effect prominently on the cover of the petition, explain the urgency in the petition, and
identify the nature and date of the proceeding or act to be stayed. (Cal. Rules of Court 1 ,
rules 8.116(a)(1) & (2), 8.486(a)(7)(B); Ct. App., Fourth Dist., Local Rules, rule 1.) A
petitioner who requests a stay or a writ of supersedeas must also state on the cover of the
petition (1) the trial court and department involved and (2) the name and telephone
number of the trial judge whose order the request seeks to stay. (Rules 8.116(b),
8.486(a)(7)(C).)

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Unless otherwise specified, all rule references are to the California Rules of Court.

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B. Stay of judgment pending appeal (writ of supersedeas)

The writ of supersedeas is in essence a stay or injunction issued by the appellate court
to maintain the status quo pending an appeal. (See generally rule 8.112.) To obtain a
writ of supersedeas, petitioner should first show that he or she has tried unsuccessfully to
get a stay from the trial court under a statutory provision or through exercise of the
court's discretionary powers. (See, e.g., Code Civ. Proc., § 917.4 (sale of real property),
Code Civ. Proc., § 917.7 (child custody), etc.) Petitioner must also show the appeal is
meritorious on its face and irreparable injury will occur such that the appellant will be
more harmed without the stay than respondent will be with the stay.

The notice of appeal must be filed and appropriate filing fees paid before the appellant
may file a petition for writ of supersedeas. There is no additional fee for filing the
petition.

Certificate of Interested Entities or Persons

In petitions for writ of mandate, certiorari, or prohibition in criminal cases in which an


entity is the defendant and in civil cases (other than family, juvenile, guardianship and
conservatorship cases), each party must comply with the requirements of rule 8.208
(governing civil appeals) concerning serving and filing a Certificate of Interested Entities
or Persons. (Rule 8.488(a) & (b).) The purpose of the certificate "is to provide justices
of the Court of Appeal with additional information to help them determine whether to
disqualify themselves from a proceeding." (Rule 8.208(a).) It is signed by appellate
counsel or an unrepresented party. "Entity" is defined as "a corporation, a partnership, a
firm, or any other association, but does not include a governmental entity or its agencies
or a natural person." (Rule 8.208(c)(2).)

The petitioner's certificate must be included in the petition. Those of the respondent
and real party in interest must be included in their preliminary opposition, or, if no
opposition is filed, in their return, if any. The certificate must appear after the cover and
before the tables. If the identity of any party has not been publicly disclosed in the
proceedings, the party may apply for permission to file its certificate under seal
separately from the petition, preliminary opposition, or return. (Rule 8.488(c)(4).) If a
party fails to file the certificate, the clerk will notify the party by mail that the party must
file the certificate within 10 days after the clerk's notice is mailed and that failure to
comply may result in the striking of the petition if the party is the petitioner, or the
document if the party is the respondent or the real party in interest. (Rule 8.488(d)(1).)

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If an entity is a party, that party's certificate must list any other entity or person that the
party knows has an ownership interest of 10 percent or more in the party. (Rule
8.208(e)(1).) If a party knows of any person or entity, other than the parties themselves,
that has a financial or other interest in the outcome of the proceeding that the party
reasonably believes the justices should consider in determining whether to disqualify
themselves, the party's certificate must list that entity or person and identify the nature of
the interest of the person or entity. (Rule 8.208(e)(2).) A party must promptly serve and
file a supplemental certificate in the reviewing court upon learning of changed or
additional information that must be disclosed under rule 8.208(e). (Rule 8.208(f).)

Time Limits

The legislature has enacted statutes which specify that certain rulings may be reviewed
by writ -- hence the term "statutory writ". In these cases, it is not necessary to explain
why an appeal is inadequate or why irreparable injury will occur because the legislature
has, in effect, already made the determinations by providing for writ review.

Writs other than those prescribed by statute are called "common law writs".

A. Statutory Writs

Statutory writs must be filed within the time frame prescribed by the Legislature. If
the petition is not filed within the specified period, the Court of Appeal generally has no
power to act and the petition must be denied. Deadlines for some statutory writs are
listed below.

Civil Cases

Motion to disqualify a judge 10 days after notice to the parties of the


(Code Civ. Proc., § 170.3, subd. (d)) decision
Denial of a motion to quash service of 10 days after service of written notice of
process (Code Civ. Proc., § 418.10, subd.
entry of the order
(c))
Summary adjudication of issues or 20 days after service of written notice of
denial of summary judgment entry of the order
(Code Civ. Proc., § 437c, subd. (m)(1))
Coordination motion 20 days after service of written notice of
(Code Civ. Proc., § 404.6) entry of the order
Motion to expunge lis pendens 20 days after service of written notice of
(Code Civ. Proc., § 405.39) the order
Good faith settlement determination 20 days after service of written notice of
(Code Civ. Proc., § 877.6, subd. (e)) determination

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Motion for change of venue 20 days after service of written notice of
(Code Civ. Proc., § 400) the order

Criminal Cases

15 days after denial of the motion (also


Order denying motion to dismiss
comply with Pen. Code, § 1510)
(Pen. Code, §§ 995, 999a)
30 days after denial of motion (also
Order denying motion to suppress
comply with Pen. Code, § 1510)
(Pen. Code, § 1538.5, subd. (i))

In the case of statutory writs without a specific time limit as, for example, a petition
challenging an order awarding sanctions of $5,000 or less (Code Civ. Proc., § 904.1,
subd. (b)), or an order on a minor's emancipation (Fam. Code, § 7123)), the filing period
is subject to general principles of laches described in "Common Law Writs" (Section B
below).
B. Common Law Writs

There is no set time limit for filing a non-statutory common law writ. However,
general principles of laches apply and 60 days is the rule of thumb. If your petition is
filed more than 60 days after entry of the order, you should explain the reason for the
delay and demonstrate the absence of prejudice to the real party. A petition may also be
denied as untimely even when it is filed within the 60-day period if, for example, the
petition was not filed until the eve of trial and the challenged order was made some time
before the trial date.

Requirement of Personal Service

A petitioner who requests an immediate stay or other immediate relief must serve the
petition by personal delivery or by an expeditious method consented to in advance by the
party served. If the respondent or any real party in interest is not so served, absent a
showing of good cause, the court will not act on the request for five days, except to deny
it summarily. The document cover must state conspicuously "STAY REQUESTED" or
"IMMEDIATE RELIEF REQUESTED" or words of similar effect. (Ct. App., Fourth
Dist., Local Rules, rule 1.)

Response to the Petition

The real party does not have to do anything when served with a writ petition. The
Court of Appeal will not issue an order to show cause or peremptory writ in the first
instance without affording real party an opportunity to oppose the petition. (Ct. App.,

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Fourth Dist., Div. One, Internal Operating Practices & Proc., V, Original Proceedings;
see rule 8.487.)

If the court requests a response from real party, it will notify petitioner. If needed, real
party may usually obtain a short extension of time on the response by calling the court.
Requests for extensions in excess of one week should be made in writing.

Disposition of the Writ Petition

The Court of Appeal may issue an order summarily denying your petition with or
without obtaining a response. (Rule 8.487(a)(4).)

The appellate court may grant relief by issuing what is called a peremptory writ in the
first instance if it affords real party an opportunity to respond. The court will not issue a
peremptory writ in the first instance unless entitlement to relief is clear -- i.e., entitlement
is conceded, there has been clear error under well-settled principles of law and
undisputed facts -- or there is an unusual urgency requiring acceleration.

Normally, however, when the court is considering granting writ relief, it will issue an
order to show cause or alternative writ. As mentioned above, this court will not issue the
order to show cause (or alternative writ) without first providing real party an opportunity
to oppose the petition. Issuance of the order to show cause or alternative writ converts
the matter into a "cause" and requires the court to hear argument (if requested) and
prepare an opinion.

Review of Writ Decisions

The Court of Appeal immediately loses jurisdiction when it issues an order summarily
denying a writ petition and, therefore, has no power to entertain a petition for rehearing
or reconsideration. A petitioner who wishes to challenge a summary denial must file a
petition for review in the Supreme Court within 10 days of the date the appellate court
denied the petition. (Rules 8.490(b)(1), 8.500(e)(1).)

If, on the other hand, the Court of Appeal issues an order to show cause, an alternative
writ or a peremptory writ in the first instance, the court prepares an opinion. In such
cases, unless the court provides for early finality under rule 8.490(b)(3), the time limits
and procedures for review are the same as those governing regular appeals.

Summary

1. The court cannot properly review an incomplete petition. Be sure to include a copy of

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the signed order -- or a minute order -- for it is the order that gives the court jurisdiction.
An unsigned order or oral ruling is insufficient.

2. Generally, the court looks for a reporter's transcript of the hearing under review. If
you do not have a transcript, include a declaration explaining why the transcript is
unavailable and fairly summarizing what transpired at the hearing; or a declaration stating
the transcript has been ordered and when it will be available.

3. When you are served with a writ petition, you do not have to do anything. The court
will not grant writ relief or issue an order to show cause without first affording real party
an opportunity to respond. The court will contact real party if it requests a response and
notify petitioner of the request.

4. Extensions of time are not automatically granted. If you need a short extension to
respond to a writ petition, call the Writ Department judicial assistant. File a written
request for an extension of more than a week.

5. A petition for an extraordinary writ with a request for an immediate stay or other
immediate relief must be served by personal delivery or by an expeditious method
consented to in advance by the party served. If the respondent or any real party in
interest is not so served, absent a showing of good cause, the court will not act on the
request for five days, except to deny it summarily.

6. You must indicate any request for stay on the cover of your writ petition. The stay
may be for the period the court is considering the petition or longer depending on the
circumstances. Be specific about the need for -- and timing of -- your stay request.

7. The court requires an original plus 4 copies of the writ petition and exhibits bound in
the same volume as the petition. If your exhibits are bound separately from your petition,
you need to file only one set of exhibits with the court. (Rules 8.44(b)(3), 8.44(b)(5),
8.486(c)(3).)

8. The California Rules of Court govern the tabbing and pagination of writ exhibits.
Rule 8.486(c)(1) requires that the exhibits be index-tabbed by number or letter with
consecutive pagination throughout. The court will file a non-conforming petition but
may strike or deny the petition absent compliance within five days. (Rule 8.486(c)(2).)
You may supply the court with a corrected version that has been properly tabbed and
paginated. In the alternative, you may come to the Clerk's Office to add tabs and
paginate the exhibits as needed.

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9. The court appreciates your letting it know in advance when you expect to file a
petition that requires action that same day or the following day. In those instances, the
court will make its best efforts to notify the trial court and the parties of its decision by
telephone. (See rule 8.489(b).) The court also appreciates your letting it know if you
have changed your mind after you have alerted the court that you are filing a petition that
needs immediate action.

California Rules of Court, Chapter 7 (Rules 8.485 – 8.493.)

Writs of Mandate, Certiorari, and Prohibition in the Supreme Court and Court of
Appeal

Rule 8.485. Application

(a) Writ proceedings governed

Except as provided in (b), the rules in this chapter govern petitions to the Supreme
Court and Court of Appeal for writs of mandate, certiorari, or prohibition, or other
writs within the original jurisdiction of these courts. In all respects not provided
for in these rules, rule 8.204 governs the form and content of documents in the
proceedings governed by this chapter.

(b) Writ proceedings not governed

These rules do not apply to petitions for writs of mandate, certiorari, or prohibition
in the appellate division of the superior court under rules 8. 930-8.936, petitions
for writs of supersedeas under rule 8.116, petitions for writs of habeas corpus
except as provided in rule 8.384, or petitions for writs of review under rules 8.495-
8.498.

(Adopted, eff. Jan. 1, 2009.)

Rule 8.486. Petitions

(a) Contents of petition

(1) If the petition could have been filed first in a lower court, it must explain why
the reviewing court should issue the writ as an original matter.

(2) If the petition names as respondent a judge, court, board, or other officer acting
in a public capacity, it must disclose the name of any real party in interest.

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(3) If the petition seeks review of trial court proceedings that are also the subject
of a pending appeal, the notice “Related Appeal Pending” must appear on the
cover of the petition and the first paragraph of the petition must state:

(A) The appeal's title, trial court docket number, and any reviewing court
docket number; and

(B) If the petition is filed under Penal Code section 1238.5, the date the
notice of appeal was filed.

(4) The petition must be verified.

(5) The petition must be accompanied by a memorandum, which need not repeat
facts alleged in the petition.

(6) Rule 8.204(c) governs the length of the petition and memorandum, but the
tables, the certificate, the verification, and any supporting documents are excluded
from the limits stated in rule 8.204(c)(1) and (2).

(7) If the petition requests a temporary stay, it must comply with the following or
the reviewing court may decline to consider the request for a temporary stay:

(A) The petition must explain the urgency.

(B) The cover of the petition must prominently display the notice “STAY
REQUESTED” and identify the nature and date of the proceeding or act
sought to be stayed.

(C) The trial court and department involved and the name and telephone
number of the trial judge whose order the request seeks to stay must appear
either on the cover or at the beginning of the text.

(b) Contents of supporting documents

(1) A petition that seeks review of a trial court ruling must be accompanied by an
adequate record, including copies of:

(A) The ruling from which the petition seeks relief;

(B) All documents and exhibits submitted to the trial court supporting and
opposing the petitioner's position;

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(C) Any other documents or portions of documents submitted to the trial
court that are necessary for a complete understanding of the case and the
ruling under review; and

(D) A reporter's transcript of the oral proceedings that resulted in the ruling
under review.

(2) In exigent circumstances, the petition may be filed without the documents
required by (1)(A)-(C) if counsel or, if the petitioner is unrepresented, the
petitioner files a declaration that explains the urgency and the circumstances
making the documents unavailable and fairly summarizes their substance.

(3) If a transcript under (1)(D) is unavailable, the record must include a declaration
by counsel or, if the petitioner is unrepresented, the petitioner:

(A) Explaining why the transcript is unavailable and fairly summarizing the
proceedings, including the petitioner's arguments and any statement by the
court supporting its ruling. This declaration may omit a full summary of the
proceedings if part of the relief sought is an order to prepare a transcript for
use by an indigent criminal defendant in support of the petition and if the
declaration demonstrates the petitioner's need for and entitlement to the
transcript; or

(B) Stating that the transcript has been ordered, the date it was ordered,
and the date it is expected to be filed, which must be a date before any
action requested of the reviewing court other than issuance of a
temporary stay supported by other parts of the record.

(4) If the petitioner does not submit the required record or explanations or does not
present facts sufficient to excuse the failure to submit them, the court may
summarily deny a stay request, the petition, or both.

(c) Form of supporting documents

(1) Documents submitted under (b) must comply with the following requirements:

(A) They must be bound together at the end of the petition or in separate
volumes not exceeding 300 pages each. The pages must be consecutively
numbered.

(B) They must be index-tabbed by number or letter.

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(C) They must begin with a table of contents listing each document by its
title and its index-tab number or letter. If a document has attachments, the
table of contents must give the title of each attachment and a brief
description of its contents.

(2) The clerk must file any supporting documents not complying with (1), but the
court may notify the petitioner that it may strike or summarily deny the petition if
the documents are not brought into compliance within a stated reasonable time of
not less than 5 days.

(3) Rule 8.44(a) governs the number of copies of supporting documents to be filed
in the Supreme Court. Rule 8.44(b) governs the number of supporting documents
to be filed in the Court of Appeal.

(d) Sealed records

Rule 8.160 applies if a party seeks to lodge or file a sealed record or to unseal a
record.

(e) Service

(1) If the respondent is the superior court or a judge of that court, the petition and
one set of supporting documents must be served on any named real party in
interest, but only the petition must be served on the respondent.

(2) If the respondent is not the superior court or a judge of that court, both the
petition and one set of supporting documents must be served on the respondent
and on any named real party in interest.

(3) In addition to complying with the requirements of rule 8.25, the proof of
service must give the telephone number of each attorney served.

(4) The petition must be served on a public officer or agency when required by
statute or rule 8.29.

(5) The clerk must file the petition even if its proof of service is defective, but if
the petitioner fails to file a corrected proof of service within 5 days after the clerk
gives notice of the defect the court may strike the petition or impose a lesser
sanction.

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(6) The court may allow the petition to be filed without proof of service.

(Formerly Rule 56, adopted, eff. Jan. 1, 2005. As amended, eff. July 1, 2005; Jan. 1,
2006; July 1, 2006. Renumbered Rule 8.490 and amended, eff. Jan. 1, 2007. As amended,
eff. Jan. 1, 2008. Renumbered Rule 8.486 and amended, eff. Jan. 1, 2009.)

Rule 8.487. Opposition and Attorney General amicus briefs

(a) Preliminary opposition

(1) Within 10 days after the petition is filed, the respondent or any real party in
interest, separately or jointly, may serve and file a preliminary opposition.

(2) A preliminary opposition must contain a memorandum and a statement of any


material fact not included in the petition.

`(3) Within 10 days after a preliminary opposition is filed, the petitioner may serve
and file a reply.

(4) Without requesting preliminary opposition or waiting for a reply, the court
may grant or deny a request for temporary stay, deny the petition, issue an
alternative writ or order to show cause, or notify the parties that it is considering
issuing a peremptory writ in the first instance.

(b) Return or opposition; reply

(1) If the court issues an alternative writ or order to show cause, the respondent or
any real party in interest, separately or jointly, may serve and file a return by
demurrer, verified answer, or both. If the court notifies the parties that it is
considering issuing a peremptory writ in the first instance, the respondent or any
real party in interest may serve and file an opposition.

(2) Unless the court orders otherwise, the return or opposition must be served and
filed within 30 days after the court issues the alternative writ or order to show
cause or notifies the parties that it is considering issuing a peremptory writ in the
first instance.

(3) Unless the court orders otherwise, the petitioner may serve and file a reply
within 15 days after the return or opposition is filed.

(4) If the return is by demurrer alone and the demurrer is not sustained, the court
may issue the peremptory writ without granting leave to answer.

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(c) Attorney General's amicus curiae brief

(1) If the court issues an alternative writ or order to show cause, the Attorney
General may file an amicus curiae brief without the permission of the Chief
Justice or presiding justice, unless the brief is submitted on behalf of another state
officer or agency.

(2) The Attorney General must serve and file the brief within 14 days after the
return is filed or, if no return is filed, within 14 days after the date it was due.

(3) The brief must provide the information required by rule 8.200(c)(2) and
comply with rule 8.200(c)(4).

(4) Any party may serve and file an answer within 14 days after the brief is filed.

(Adopted, eff. Jan. 1, 2009.)

Rule 8.488. Certificate of Interested Entities or Persons

(a) Application

This rule applies in writ proceedings in criminal cases in which an entity is the
defendant and in civil cases other than family, juvenile, guardianship, and
conservatorship cases.

(b) Compliance with rule 8.208

Each party in a civil case and any entity that is a defendant in a criminal case must
comply with the requirements of rule 8.208 concerning serving and filing a
certificate of interested entities or persons.

(c) Placement of certificates

(1) The petitioner's certificate must be included in the petition.

(2) The certificates of the respondent and real party in interest must be included in
their preliminary opposition or, if no such opposition is filed, in their return, if
any.

(3) The certificate must appear after the cover and before the tables.

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(4) If the identity of any party has not been publicly disclosed in the proceedings,
the party may file an application for permission to file its certificate under seal
separately from the petition, preliminary opposition, or return.

(d) Failure to file a certificate

(1) If a party fails to file a certificate as required under (b) and (c), the clerk must
notify the party by mail that the party must file the certificate within 10 days after
the clerk's notice is mailed and that if the party fails to comply, the court may
impose one of the following sanctions:

(A) If the party is the petitioner, the court may strike the petition; or

(B) If the party is the respondent or the real party in interest, the court may
strike that party's document.

(2) If the party fails to file the certificate as specified in the notice under (1), the
court may impose the sanctions specified in the notice.

(Adopted, eff. Jan. 1, 2009.)

Rule 8.489. Notice to trial court

(a) Notice if writ issues

If a writ or order issues directed to any judge, court, board, or other officer, the
reviewing court clerk must promptly send a certified copy of the writ or order to
the person or entity to whom it is addressed.

(b) Notice by telephone

(1) If the writ or order stays or prohibits proceedings set to occur within 7 days or
requires action within 7 days--or in any other urgent situation--the reviewing court
clerk must make a reasonable effort to notify the clerk of the respondent court by
telephone. The clerk of the respondent court must then notify the judge or officer
most directly concerned.

(2) The clerk need not give telephonic notice of the summary denial of a writ,
whether or not a stay previously issued.

(Adopted, eff. Jan. 1, 2009.)

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Rule 8.490. Filing, finality, and modification of decisions; remittitur

(a) Filing and modification of decisions

Rule 8.264(a) and (c) govern the filing and modification of decisions in writ
proceedings.

(b) Finality of decision

(1) The denial of a petition for a writ within the court's original jurisdiction
without issuance of an alternative writ or order to show cause is final in that court
when filed.

(2) Except as otherwise provided in this rule, a decision in a writ proceeding is


final 30 days after the decision is filed.

(3) If necessary to prevent mootness or frustration of the relief granted or to


otherwise promote the interests of justice, the court may order early finality in that
court of a decision granting a petition for a writ within its original jurisdiction or
denying such a petition after issuing an alternative writ or order to show cause.
The decision may provide for finality in that court on filing or within a stated
period of less than 30 days.

(4) If a Court of Appeal certifies its opinion for publication or partial publication
after filing its decision and before its decision becomes final in that court, the
finality period runs from the filing date of the order for publication.

(5) If an order modifying an opinion changes the appellate judgment, the finality
period runs from the filing date of the modification order.

(c) Remittitur

A Court of Appeal must issue a remittitur in a writ proceeding under this chapter
except when the court denies the petition without issuing an alternative writ or
order to show cause. Rule 8.272(b)-(d) governs issuance of a remittitur by a Court
of Appeal in writ proceedings under this chapter.

(Adopted, eff. Jan. 1, 2009.)

16
Rule 8.491. Responsive pleading under Code of Civil Procedure section 418.10

If the Court of Appeal denies a petition for writ of mandate brought under Code of
Civil Procedure section 418.10(c) and the Supreme Court denies review of the
Court of Appeal's decision, the time to file a responsive pleading in the trial court
is extended until 10 days after the Supreme Court files its order denying review.

(Adopted, eff. Jan. 1, 2009.)

Rule 8.492. Sanctions

(a) Grounds for sanctions

On motion of a party or its own motion, a Court of Appeal may impose sanctions,
including the award or denial of costs under rule 8.493, on a party or an attorney
for:

(1) Filing a frivolous petition or filing a petition solely to cause delay; or

(2) Committing any other unreasonable violation of these rules.

(b) Notice

The court must give notice in writing if it is considering imposing sanctions.

(c) Opposition

Within 10 days after the court sends such notice, a party or attorney may serve and
file an opposition, but failure to do so will not be deemed consent. An opposition
may not be filed unless the court sends such notice.

(d) Oral argument

Unless otherwise ordered, oral argument on the issue of sanctions must be


combined with any oral argument on the merits of the petition.

(Adopted, eff. Jan. 1, 2009.)

17
Rule 8.493. Costs

(a) Award of costs

(1) Except in a criminal or juvenile or other proceeding in which a party is entitled


to court-appointed counsel:

(A) Unless otherwise ordered by the court under (B), the prevailing party in
an original proceeding is entitled to costs if the court resolves the
proceeding by written opinion after issuing an alternative writ, an order to
show cause, or a peremptory writ in the first instance.

(B) In the interests of justice, the court may also award or deny costs as it
deems proper in the proceedings listed in (A) and in other circumstances.

(2) The opinion or order resolving the proceeding must specify the award or denial
of costs.

(b) Procedures for recovering costs

Rule 8.278(b)-(d) governs the procedure for recovering costs under this rule.

(Adopted, eff. Jan. 1, 2009.)

Writ Handout
Rev: 1/1/09

18
2009 California Code of Civil Procedure - Section 1084-1097 :: 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 such 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 review 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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