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69. -Penalties
Where the trial court concludes that only some of the charges against a civil service employee found to be true by the State Personnel Board are sustained by substantial evidence, the court properly remands the matter to the board for reconsideration of the penalty without again trying the employee either on the original charges or on those sustained by the court. Nelson v Department of Corrections (1952) 110 Cal App 2d 331, 242 P2d 906
Determination of penalty to be imposed by administrative agency lies with agency and not with court. Black v State Personnel Board (1955, 2nd Dist) 136 Cal App 2d 904, 289 P2d 863
Court having found that findings of civil service commission upholding discharge of employee were supported by substantial evidence, determination of penalty to be imposed by commission is vested in commission and not in court. Schneider v Civil Service Com. (1955, 2nd Dist) 137 Cal App 2d 277, 290 P2d 306
When administrative tribunal after considering several charges against licentiate makes separate finding and imposes specific section for each offense, accused, in mandate proceeding, is not entitled to have cause sent back to administrative agency for reconsideration of penalty because court vacates administrative order as to some accusations, as would be if penalty imposed had been based on collective rather than on separate findings. Mast v State Board of Optometry (1956, 2nd Dist) 139 Cal App 2d 78, 293 P2d 148
Where effect of judicial review is to reduce number of violations forming basis for penalty meted out by public administrative agency, and it cannot be known whether agency would, for reduced number of violations, have meted out same penalty, agency will be directed to set aside order and redetermine penalty, and this principle is applicable to judicial review of expulsion of physician from medical association. Bernstein v Alameda-Contra Costa Medical Asso. (1956, 1st Dist) 139 Cal App 2d 241, 293 P2d 862
Matter of fixing penalty for violation of bail bond regulation is not for reviewing court in mandamus proceeding, but for Insurance Commissioner in exercise of his discretion. Nardoni v McConnell (1957) 48 Cal 2d 500, 310 P2d 644
Where an administrative agency exercising state-wide jurisdiction has imposed a single penalty based on multiple charges of misconduct and the reviewing court holds some of them to be unsupported, the practice normally employed is to return the case to the administrative agency with a direction to reconsider the penalty; that can be done only when some of the charges are unsupported by evidence and the court cannot ascertain from the record whether the same penalty would have been imposed had the agency recognized the absence of evidence sufficient to support only a part of the charges on which the petitioner was found guilty. Thayer v Board of Osteopathic Examiners (1958, 2nd Dist) 157 Cal App 2d 4, 320 P2d 28
Same limitation expressly declared in subd e that court's "judgment shall not limit or control in any way the discretion legally vested" in an administrative agency is applicable to power of Alcoholic Beverage Control Appeals Board in reviewing propriety of decision of Department of Alcoholic Beverage Control on the penalty, which 1954 amendment of Const Art XX § 22 has placed in discretion of the department. Martin v Alcoholic Beverage Control Appeals Board (1959) 52 Cal 2d 287, 341 P2d 296
Where superior court upholds only some of adverse findings made by administrative board in hearings on charge against licensee, usual procedure is to send matter back to board for reconsideration of penalty that had been imposed by board; however, there will be no remand where those findings that were sustained by court are such that there can be no real doubt that on return for reconsideration, board would impose same penalty. Sica v Board of Police Comm'rs (1962, 2nd Dist) 200 Cal App 2d 137, 19 Cal Rptr 277
In an administrative mandamus action, the trial court erred in setting aside penalties imposehis job and a penalty less severe than dismissal be imposed where the court directed that a peremptory writ of mandate issue commanding the commissioners to set aside their order affirming the petitioner's summary dismissal by his supervisor and commanding them to vacate the supervisor's dismissal order and to redetermine the penalty imposed, but authorizing them to reexamine all evidence and the entire record and to impose a fair, just, and reasonable penalty for his taking of $1. Carroll v Civil Service Com. (1970, 5th Dist) 11 Cal App 3d 727, 90 Cal Rptr 128

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8. -Application of Doctrine
Availability of unappropriated water may not be determined under this section on ground of imminent danger before Department of Public Works considers application. Temescal Water Co. v Department of Public Works (1955) 44 Cal 2d 90, 280 P2d 1
The proper remedy for reviewing the issuance of a payment by the Department of Public Works authorizing the annual appropriation of a quantity of water to a water conservation district, notwithstanding alleged unavailability of unappropriated water, is by a writ of mandate pursuant to this section; but before this remedy will lie all administrative remedies must be exhausted. Temescal Water Co. v Department of Public Works (1955) 44 Cal 2d 90, 280 P2d 1
There was no jurisdiction for judicial review of order of department of alcoholic beverage control revoking liquor license where appeal from such order was not taken to alcoholic beverage control appeals board within time allowed by law, despite fact that licensees alleged that they had exhausted all remedies provided by applicable laws and had no further adequate remedy at law or further right of appeal except to file petition for writ of mandate. Miller v Department of Alcoholic Beverage Control (1958, 2nd Dist) 160 Cal App 2d 658, 325 P2d 601
Fact applicant to take civil service examination on both an open basis and promotional basis failed to appeal rejection of his application to take examination on latter basis to State Personnel Board, as provided by its rules and regulations, is fatal to his proceeding in mandamus to compel board to hold examination on promotional basis rather than open basis, and writ of prohibition should be granted to restrain trial court from proceeding with trial of mandamus action. State Personnel Board v Superior Court of Sacramento County (1959, 3rd Dist) 175 Cal App 2d 158, 345 P2d 976
Property owners seeking to have county set-back ordinances declared unconstitutional as applied to their lot did not fail to exhaust their administrative remedies by not requesting board of supervisors to grant variances other than specifically measured differences from set-back lines asked for in variance sought, where to require that other specific variances must have been requested would foreclose resort to courts until all possible variances had been submitted and refused and for property owners to have asked for "some" or "any" variance would have resulted in summary dismissal for having put forth no intelligent plan. Hoshour v County of Contra Costa (1962, 1st Dist) 203 Cal App 2d 602, 21 Cal Rptr 714
Granting of hearing by administrative board before adoption by it of disciplinary action does not constitute waiver by board of requirement that, before appealing to courts for relief, plaintiff must first exhaust his administrative remedy. Humbert v Castro Valley County Fire Protection Dist. (1963, 1st Dist) 214 Cal App 2d 1, 29 Cal Rptr 158
Bare probability, asserted long after time for appeal from administrative ruling, that timely application for rehearing would have been denied does not excuse adherence to rule that litigant must exhaust administrative remedies before appealing to court for judicial review. Humbert v Castro Valley County Fire Protection Dist. (1963, 1st Dist) 214 Cal App 2d 1, 29 Cal Rptr 158
Where no procedure was provided for reconsidering discharge of fire district's captain by district's board other than on appeal obtained pursuant to rules of fire district's commission, and where board had lost jurisdiction to grant plaintiff appeal by plaintiff's failure to make timely application for rehearing, board had no power to waive plaintiff's failure to appeal; only existing right may be waived. Humbert v Castro Valley County Fire Protection Dist. (1963, 1st Dist) 214 Cal App 2d 1, 29 Cal Rptr 158
In an action against a city for damages, after the city revoked plaintiff's conditional use and building permits to build an apartment project and later issued a conditional use permit that significdevelop a parcel of property, voluntarily dismissed, four days before trial, its action for administrative mandamus (CCP § ) to overturn a city's quasi-judicial decision to disapprove a vesting tentative map and a development agreement, plaintiff was precluded from pursuing additional causes of action for damages for civil rights violations and for inverse condemnation against the city and the three city councilmembers who had voted against the project. The trial court properly gave preclusive effect to the city's administrative decision, which achieved finality when plaintiff gave up its challenge to set it aside. No action in inverse condemnation seeking damages for a permanent taking may be initiated in the first instance without a challenge by mandamus to the application of the ordinance to the affected property. By dismissing its mandamus action and electing to proceed exclusively for damages, plaintiff denied defendants the opportunity to respond to an adverse judicial ruling by remedying the wrong or mitigating the damages claimed and, thus, sought to do what a landowner has no right to do, i.e., to force the city to exercise the power of eminent domain. Plaintiff could not escape responsibility for its failure to bring the mandamus action to trial before it lost its option rights. It delayed the mandamus trial to accommodate its newly retained trial attorneys until after the option ran; had plaintiff kept its trial date, the trial court would have tried the matter before the option expired. By commencing and then dismissing its action, plaintiff obtained no determination in its favor. The mere filing of the action did not provide notice to defendants that the claim had merit. Mola Dev. Corp. v City of Seal Beach (1997, 4th Dist) 57 Cal App 4th 405, 67 Cal Rptr 2d 103
Where an administrative tribunal has rendered a quasi-judicial decision that could be challenged by administrative mandamus pursuant to CCP § , a party's failure to pursue that remedy may collaterally estop a federal civil rights action. This is a form of res judicata, of giving collateral estoppel effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action. Mola Dev. Corp. v City of Seal Beach (1997, 4th Dist) 57 Cal App 4th 405, 67 Cal Rptr 2d 103
Property owner was not required to file an administrative mandate action pursuant to CCP § before any compensation could be awarded to the owner for loss of use of land pursuant to a condemnation action because (1) the city violated an injunction that led to the award by constructing a curb on the owner's land, and thus the city was not entitled to claim that the owner failed to exhaust administrative remedies by filing a court action to prevent what the city had already done, (2) the owner, by seeking to obtain an injunction, which was in substance an administrative mandate action, complied with the substance of the mandate requirement, given that the owner sought to prevent the city from taking action that otherwise would have made the city liable to pay money, (3) there was a well-established exception to the requirement for a mandate action when an irrevocable taking had already occurred, as in this case, and (4) the facts showed that the city was not using its police power to abate a nuisance on the land as claimed. Hurwitz v City of Orange (2004, Cal App 4th Dist) 2004 Cal App LEXIS 1600
In an action for wrongful termination, an employee failed to exhaust grievance procedures because he did not appeal a grievance denial to its final conclusion, a writ proceeding under CCP § . Claudio v Regents of the University of California (2005, Cal App 3rd Dist) 2005 Cal App LEXIS 1815

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5. Necessity That Party Be Beneficially Interested or Aggrieved
Alcoholic beverage control appeals board was party aggrieved by judgment of superior court ordering issuance of writ of mandate commanding appeals board to vacate its decision setting aside order of state board of equalization (now department of alcoholic beverage control), made after petition for reconsideration was granted, suspending indefinitely certain liquor licenses. Koehn v State Board of Equalization (1958) 50 Cal 2d 432, 326 P2d 502
Generally, party not aggrieved is party not beneficially interested; to withhold on this basis judicial review of administrative action is to apply principle fundamental to appellate review of judicial action, from which only aggrieved parties may appeal. Grant v Board of Medical Examiners (1965, 1st Dist) 232 Cal App 2d 820, 43 Cal Rptr 270
Writ will not issue where it would be of no benefit to petitioner or would enforce mere abstract right unattended by any substantial benefit, or where petitioner's rights are otherwise amply protected or petitioner is not aggrieved by administrative order or decision in question. Grant v Board of Medical Examiners (1965, 1st Dist) 232 Cal App 2d 820, 43 Cal Rptr 270
In proceeding to revoke physician's license, decision of Board of Medical Examiners to adopt hearing officer's proposed order that accusation and proceedings be dismissed was entirely favorable to defendant; thus issuance of writ of mandate would not benefit defendant, would enforce no right not already protected, and would serve no useful purpose in reviewing board's decision, since defendant was not aggrieved thereby. Grant v Board of Medical Examiners (1965, 1st Dist) 232 Cal App 2d 820, 43 Cal Rptr 270
A party with a beneficial interest in the subject matter of an administrative proceeding to appear and who has rightfully appeared therein may properly institute proceedings for review by mandamus. Employees Service Asso. v Grady (1966, 1st Dist) 243 Cal App 2d 817, 52 Cal Rptr 831
Where a party has a beneficial interest in the subject matter of the proceedings and the right to appear, and has appeared before an administrative agency, he properly may institute proceedings for review by mandamus. County of Los Angeles v Tax Appeals Board (1968, 2nd Dist) 267 Cal App 2d 830, 73 Cal Rptr 469
Only if it can be said in the light of all the evidence before the Board of Medical Examiners, including evidence offered in mitigation, that the penalty imposed by the Board was manifestly unjustified, may the Board's decision on penalty be disturbed by the courts. Cadilla v Board of Medical Examiners (1972, 4th Dist) 26 Cal App 3d 961, 103 Cal Rptr 455
Denial of a welfare recipient's motion to intervene in a county's mandate proceeding under CCP § , and to vacate the judgment issuing a writ of mandate setting aside a decision of the Department of Health (which had reinstated the recipient's benefits after the county had ordered them reduced), constituted an abuse of discretion, where the recipient was a person severely impaired by a mental disorder, and where the department had failed to serve him with notice of the mandate proceeding as required by W & I C § 10962. The recipient had acquired actual knowledge of the proceeding and had informed his attorney, who had requested copies of the moving papers, which through misdirection had not reached him until the evening before the hearing, causing the attorney's unwillingness to represent the recipient at the hearing. County of Alameda v Lackner (1978, 1st Dist) 79 Cal App 3d 274, 144 Cal Rptr 840

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71. In General
Where Alcoholic Beverage Control Appeals Board reversed order of Department of Alcoholic Beverage Control denying application for an on-sale beer license, appeals board could appeal from judgment of trial court in mandamus proceeding directing it to affirm department's order. Martin v Alcoholic Beverage Control Appeals Board (1959) 52 Cal 2d 238, 340 P2d 1
Where District Court of Appeal denied petition for mandate to direct superior court to set aside judgment dissolving preliminary injunction and dismissing petitioners' complaint for declaratory relief, and petition for hearing in Supreme Court, praying that such petition be deemed, in the alternative, ". . . one for a writ of supersedeas or an order equivalent thereto," was denied by Supreme Court without opinion, such ruling was in substance denial of supersedeas and it would be improper for District Court of Appeal to grant petition for supersedeas made after appeal from judgment had been transferred to such court. Eden Memorial Park Asso. v Department of Public Works (1962, 2nd Dist) 207 Cal App 2d 766, 24 Cal Rptr 707
On remand following an appeal in an administrative mandamus action in which the appellate court directed the trial court to affirm certain findings of fact and determinations of issues of the State Board of Pharmacy with reference to charges of false, misleading and illegal advertising by a retail drug corporation, the trial court was free to act on the penalty phase of the case, where that phase was not covered by the order of the appellate court; the doctrine of the law of the case does not apply to points of law which might have been but were not presented and determined on the prior appeal. West Romaine Corp. v California State Board of Pharmacy (1968, 2nd Dist) 266 Cal App 2d 901, 72 Cal Rptr 569
In an administrative mandamus action wherein no limited trial do novo is authorized by law, the trial court itself exercises an essentially appellate function in that only errors of law appearing on the administrative record are subject to its cognizance. Therefore, the trial and appellate courts occupy identical positions with regard to the administrative record and the function of the appellate court, like that of the trial court, is to determine whether that record is free from legal error. Sierra Club v Hayward (1981) 28 Cal 3d 840, 171 Cal Rptr 619, 623 P2d 180
Under CCP § , a decision of an administrative agency may be challenged by petition for writ of administrative mandamus. There are two standards of judicial review: substantial evidence and independent judgment. It was the intent of the Legislature to invest the judiciary with the task of making the ultimate decision as to which cases should be subject to which test. If an administrative decision substantially affects a fundamental vested right, the trial court must exercise the independent judgment test. Otherwise, the substantial evidence test should be applied. The decision as to which test to use must be made on a case-by-case basis. In determining whether a right is "fundamental" and "vested," the question is whether the affected right is deemed to be of such significance that it should not be extinguished by a body lacking in judicial power. Malibu Mountains Recreation, Inc. v County of Los Angeles (1998, 2nd Dist) 67 Cal App 4th 359, 79 Cal Rptr 2d 25, 366
In an action by a city employee alleging employment discrimination in which plaintiff sought a writ of administrative mandamus (CCP § ), the trial court's order granting the city's motion for summary judgment, based on a finding that the doctrine of laches barred the § 1094.5 petition, was subject to de novo review. Reviewing the matter under the deferential abuse of discretion standard was error. Johnson v City of Loma Linda (2000) 24 Cal 4th 61, 99 Cal Rptr 2d 316, 5 P3d 874
Trial court erred in granting summary adjudication to an agency, athe employee notice of a subsequent meeting did not cure this error. Morrison v Housing Authority of the City of Los Angeles Bd. of Comrs. (2003, 2nd Dist) 107 Cal App 4th 860, 132 Cal Rptr 2d 453

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64. Dismissal
It is not abuse of discretion to dismiss, for lack of prosecution, petition for writ of mandamus to review revocation of petitioner's license to practice accountancy, in view of his failure to comply with provisions of Government Code and in view of his failure to make any effort to get cause heard for more than three years after answer was filed. Wisler v California State Board of Accountancy (1955, 1st Dist) 136 Cal App 2d 79, 288 P2d 322
In mandamus proceeding to review board order revoking petitioner's license, fact that on hearing of motion to dismiss for lack of prosecution, one of petitioner's counsel, who had handled matter, was ill, does not require that court refuse to dismiss petition, where another attorney of record for petitioner throughout entire proceeding showed himself fully competent to represent petitioner. Wisler v California State Board of Accountancy (1955, 1st Dist) 136 Cal App 2d 79, 288 P2d 322
In mandamus proceeding to compel reinstatement of plaintiff's teaching credentials, court did not err in denying motion to dismiss for lack of jurisdiction on theory that former CCP § 583 (see now CCP §§ 583.110 et seq.) requires case to be brought to trial within three years after remittitur issued on appeal is filed in court and that this requirement was not met because of failure to comply with provisions of § 594 for five-day notice of trial on "issue of fact," where defendants' answer admitted that plaintiff's conviction occurred prior to 1952 legislation dealing with such convictions, and issue of retroactivity presented only question of law. Di Genova v State Bd. of Education (1962) 57 Cal 2d 167, 18 Cal Rptr 369, 367 P2d 865
A mandamus action to compel a school district to re-employ a probationary teacher was properly dismissed as to plaintiff labor union and its president, where it was not alleged that any right of the union or of its president as such had been invaded, and neither requested any relief, and where no allegation was made that the right of the organization to represent its members in relations with public school employers was being violated. American Federation of Teachers v San Lorenzo Unified School Dist. (1969, 1st Dist) 276 Cal App 2d 132, 80 Cal Rptr 758
Mortgage guaranty insurer was properly ordered by the California Insurance Commissioner to stop selling a "lien protection" policy, which was title insurance. Therefore, the trial court properly denied the insurer's petition for a writ of administrative mandamus under CCP § . Radian Guaranty, Inc. v Garamendi (2005, Cal App 1st Dist) 2005 Cal App LEXIS 490, 2005 Daily Journal DAR 3678

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21. In General
No distinction between so-called jurisdictional facts and other facts on which administrative adjudication depends need be made where review is of determination of state-wide administrative agency. Temescal Water Co. v Department of Public Works (1955) 44 Cal 2d 90, 280 P2d 1
Clear indication that boards jurisdiction has been exhausted after expiration of certain period must exist before court will find such loss of power. Anderson v Pittenger (1961, 2nd Dist) 197 Cal App 2d 188, 17 Cal Rptr 54
Real parties' failure to challenge the constitutionality of the California Coastal Zone Conservation Act of 1972 in proceedings before the California Coastal Zone Conservation Commission when they applied for a permit to develop certain coastal lands did not preclude them from doing so in administrative mandamus proceedings to review the commission's denial of a permit. State v Superior Court of Orange County (1974) 12 Cal 3d 237, 115 Cal Rptr 497, 524 P2d 1281
Actions of an administrative agency which are adjudicatory in character are judicially reviewable by administrative mandamus as provided in CCP § . An agency acts in an adjudicatory capacity when, after a hearing, it applies previously adopted rules to an agency-determined state of facts to reach a conclusion affecting the rights of a specific person. Where the administrative adjudicatory action affects a fundamental vested right, the court, in determining whether there has been an abuse of discretion for failure of the evidence to support the findings, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. Estes v Grover City (1978, 2nd Dist) 82 Cal App 3d 509, 147 Cal Rptr 131
The adjudicatory functions regulated by administrative mandamus are those which involve a fact-finding process, followed by a decision which imposes a tax upon an individual, a disciplinary burden, suspension of employment, revocation of license or credential, or denial to him of a permit or license which is a necessary prerequisite for the individual to engage in certain activities. Royal Convalescent Hospital, Inc. v State Board of Control (1979, 4th Dist) 99 Cal App 3d 788, 160 Cal Rptr 458
The validity of an administration regulation, in whole or in part, as applied to a petitioner in an administrative mandamus proceeding, may be challenged therein by that petitioner where the basis of the challenge is that the regulation or some portion thereof is not a reasonable interpretation of the statute and is therefore void. "Abuse of discretion" within the meaning of CCP § , is established if the administrative agency has not proceeded in the manner required by law. Proceeding pursuant to an invalid regulation is not proceeding in the manner required by law. Woods v Superior Court of Butte County (1981) 28 Cal 3d 668, 170 Cal Rptr 484, 620 P2d 1032