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What Must be Stated in a Writ of Mandate / Mandamus?
A petition for writ of mandate should include a title page stating the name of the court in which the case is being filed, the name of the parties, and the type of petition being filed. The format of the petition is similar to that of a state habeas corpus petition.
If the petition challenges the action of an agency official, that official should be named as the respondent. See, e.g., Bravo v. Cabell (1974) 11 Cal. 3d 834, 114 Cal. Rptr. 618.
If the petition challenges an action by a judge, the court (not the individual judge) should be named as respondent; in other words, the respondent would be “the Los Angeles County Superior Court,” not “Judge Smith.”
Often there will be a “real party in interest,” who is not the respondent, but is a party in the underlying dispute and has an interest in the outcome of the case. See Redevelopment Agency v. California Commission on State Mandates (1996) 43 Cal. App. 4th 1188, 1196-1197, 51 Cal. Rptr. 2d 100. For example, if a person files a mandate petition to force the court to follow its lawful duty to appoint counsel in state habeas corpus case, the warden who is the respondent in the habeas case would be a “real party in in interest.” In other criminal or civil commitment matters, the People of the State of California might be the real party in interest. The petition should identify any possible real party in interest.
The mandate petition must contain the following allegations:
- The petitioner has an interest in the matter, either as an individual or as a representative of a group;
- The respondent has an official duty and that there is legal authority requiring the respondent to fulfill that duty;
- That (1) petitioner was entitled to performance of a duty, (2) petitioner made a demand for that performance, and (3) respondent failed to do their duty;
- A statement that petitioner has exhausted any administrative remedies, with a description of what was done to seek administrative relief and/or reasons why exhaustion is not possible or why the court should allow the case to proceed without exhaustion (see Sail’er Inn, Inc., v. Kirby (1971) 5 Cal. 3d 1, 7, 95 Cal. Rptr. 329 (“ordinarily mandamus will be issued only after the final order or decision of the administrative agency. . . .”); People v. Tate (1994) 29 Cal. App.4th 1678, 35 Cal. Rptr. 2d 250;
- A statement that there is no other plain, speedy, and adequate legal remedy (Code of Civil Procedure § 1086; Provencher v. Municipal Court (1978) 83 Cal. App. 3d 132 147 Cal. Rptr. 615); if petitioner could have directly appealed from the decision, the petition will need to explain why the lower court acted in excess of its jurisdiction or why the issues are of great public importance and must be resolved promptly (People v. Superior Court (Howard) (1999) 70 Cal. App. 4th 136, 147, 82 Cal. Rptr. 2d 481; Mauro B. v. Superior Court (1991) 230 Cal. App. 3d 949, 953-954, 281 Cal. Rptr. 507].;
- A prayer for relief, including a statement of what the petitioner wants the court to order the respondent to do. This should include a request that the court issue an alternative writ or order to show cause, grant a peremptory writ, or grant any other relief that is in the interests of justice; and
- A verification signed by the petitioner (Code of Civil Procedure § 1086). The verification is a statement of the petitioner declaring the truth of the allegations in the petition. Penal Code §§ 1474-1475; see also People v. Madaris (1981) 122 Cal. App. 3d 234, 241, 175 Cal. Rptr. 869. The verification must be signed by the petitioner under penalty of perjury (with a signature following the words “I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on [date] at [name of city and state].”). In limited circumstances, the verification may instead be made by the petitioner’s lawyer or a third party acting as the petitioner’s “next friend.” Penal Code § 1474; In re Davis (1979) 25 Cal. 3d 384, 158 Cal. Rptr. 384; see also People v. McCarthy (1986) 176 Cal. App.3d 593, 222 Cal. Rptr. 291.
This article would not be possible without reference to the excellent treatise, California Prison and Parole law Handbook, written by the Prison Law Office in Folsom, California. We wish to acknowledge their excellent work and thank them.
