Binyon v. State

California Court of Appeal Aug 5, 1993 No. B061613Published

Before: Woods (a.M.)

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Holding. Trial courts possess the inherent authority to dismiss petitions for administrative mandamus for lack of prosecution, as the general dismissal statutes are not inconsistent with the nature of such special proceedings.

Issues

Whether the dismissal statutes for delay in prosecution apply to administrative mandamus proceedings.
Whether a trial court has inherent authority to dismiss a special proceeding for lack of diligence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that a petition for administrative mandamus involves a special proceeding does not, however, place it beyond the reach of dismissal for delay in prosecution.”

“It is well settled that the trial courts have the inherent authority to dismiss for delay in prosecution.”

“There is no specific statute that permits dismissal of an administrative mandamus proceeding for failure to prosecute and, therefore, it would not be inconsistent to apply the general dismissal statute to these proceedings.”

Opinion

WOODS (A. M.), P. J.

Hugh Binyon (appellant) appeals the judgment of dismissal of his petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) for lack of prosecution.

Respondents are the State of California, the California State Personnel Board and Charles W. Walter (collectively, the State).

Appellant was employed as a senior special investigator with the California Department of Consumer Affairs. In October 1985, after a hearing before the State Personnel Board, he was terminated from his position. Thereafter, on May 19,1986, appellant filed a petition for writ of mandate under section 1094.5 alleging that insufficient evidence supported his termination.

Appellant failed to serve the petition on the personnel board. The superior court file was consigned to the archives of that court. On May 28, 1991, appellant noticed the matter for a hearing on the petition on July 18, 1991, by sending a notice to “Deputy Attorney General” in Los Angeles and lodging the administrative record. Notice of hearing was not served on the State Personnel Board.

On July 18, 1991, the case was dismissed on the court’s own motion for failure to bring it to trial within five years of filing. Judgment was entered on September 4, 1991. This appeal ensued. We affirm.

Appellant’s single argument is that the dismissal statutes (§ 581 et seq.) do not apply to writ proceedings for administrative mandamus under section 1094.5 and, therefore, the court was without authority to dismiss his action for delay in prosecution.

Appellant maintains, correctly, that a mandamus proceeding is not an “action” but a “special proceeding” for purposes of section 583.120. Section 583.120, subdivision (a), provides: “This chapter applies to a civil action and does not apply to a special proceeding except to the extent incorporated by reference in the special proceeding.” (§ 583.120, subd. (a).) “The judicial remedy of mandamus is not a civil action, but a special proceeding

[955]

of a civil nature, which is available for specified purposes and for which the code provides a separate procedure. [Citations.]”

Binyon v. State

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WOODS (A. M.), P. J.

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