ARABIAN, J., Dissenting. The essential question presented is whether the statutory time period within which the State Personnel Board (Board) must act is mandatory and jurisdictional or merely “directory.” A corollary issue is whether, when the Board has failed to act in a timely fashion, an employee bears the burden in a subsequent mandamus proceeding to establish that the employing agency’s action is unjustified.
Contrary to the majority, I would hold that the Court of Appeal correctly interpreted the governing statute to conclude that the statutory time frame is mandatory and jurisdictional. Unless the employee waives time, the appropriate remedy when the Board has failed to act in a timely manner is a proceeding in mandamus directly against the employing agency to revoke its adverse action. The Court of Appeal opinion herein, authored by Presiding Justice Klein and concurred in by Justices Croskey and Kitching, is completely persuasive on this point, and I would adopt it as the opinion of this court. That portion of the Court of Appeal opinion, with appropriate deletions and additions, is set forth in parts 1, 2 and 4 of the discussion which follows.*
I would also hold, contrary to the majority, that the employing agency should bear the burden of proof when the Board has failed to render a timely decision. The Court of Appeal was understandably constrained by traditional mandamus principles to hold that the burden in such actions is on the employee to demonstrate the impropriety of the employing agency’s adverse action. Mandamus is generally governed by equitable principles, however, and to adhere to the traditional burden of proof in this case would be grossly inequitable. In administrative proceedings before the Board the burden is always on the employing agency to demonstrate just cause for its action. To [1158]reverse this burden when the Board has failed to act within the prescribed statutory period would unfairly penalize the employee for the Board’s dilatory conduct, and would violate the employee’s fundamental due process rights guaranteed by our decision in Shelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14, 539 P.2d 774]. In part 3 of the discussion which follows, therefore, I depart from the both the Court of Appeal and the majority to conclude that, in a mandamus proceeding, the employing agency bears the initial burden of proof to establish “cause” for its disciplinary action.
Discussion
[ 1.] Section 18671.1 is mandatory and jurisdictional because it contains a consequence for noncompliance with its time limitations in furtherance of the purpose of the statute.
a. Principles of statutory construction.
[Government Code] section 18671.1 [(hereafter all further statutory references are to this code unless otherwise specified)] states in relevant part: “the period from the filing of the petition to the decision of the board shall not exceed six months or 90 days from the time of the submission, whichever time period is less, and except that the board may extend the six-month period up to 45 additional days.” (Italics added.)
It is a well-settled principle of statutory construction that the word “ ‘shall’ ” is ordinarily construed as mandatory, while “ ‘may’ ” is generally construed as permissive, “particularly when both terms are used in the same statute.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443 [261 Cal.Rptr. 574, 111 P.2d 610].) Thus, the usual canons of interpretation would appear to compel the conclusion section 18671.1 is mandatory and therefore jurisdictional, and not merely directory.
However, in this context the use of the word “shall” is not dispositive.
There is no simple mechanical test for determining whether a provision is to be given directory or mandatory effect. (Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910 [136 Cal.Rptr. 251, 559 P.2d 606].) “‘In order to determine whether a particular statutory provision ... is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the [1159]consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation] . . . .’ [Fn. omitted.]” (Id., at p. 910.)
In Edwards v. Steele (1979) 25 Cal.3d 406, 410 [158 Cal.Rptr. 662, 599 P.2d 1365], which specifically involved the issue of whether a time limitation was mandatory and jurisdictional or merely directory, [this court] stated: “We have held that, generally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed. [Citations.] In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory ‘unless a consequence or penalty is provided for failure to do the act within the time commanded.’ [Citations.]”
b. Mandatory and jurisdictional aspect of the statute.
Section 18671.1 is mandatory and jurisdictional because it specifies a consequence for noncompliance, which consequence furthers the purpose of the statute.
The same result is reached by applying either of the general tests found in Edwards v. Steele, supra, 25 Cal.3d at page 410, to section 18671.1, compelling the conclusion the time specified in the statute was intended to be mandatory and jurisdictional rather than merely directory.
(1) Specific language as to consequence for noncompliance is controlling.
Section 18671.1 contains a significant “ ‘consequence or penalty’ ” for noncompliance with its time limitations. (Edwards v. Steele, supra, 25 Cal.3d at p. 410.) The statute provides in relevant part: “The provisions relating to the six-month or the 90-day periods for a decision may be waived by the employee but if not so waived, a failure to render a timely decision is an exhaustion of all available administrative remedies.“ (§ 18671.1, italics added.)
The Board’s contention the time limitations of section 18671.1 merely are directory fails to give due consideration to this consequence specified in the [1160]statute. The Board argues an employee’s remedy for administrative delay is a court order mandating the Board to hold hearings and to issue decisions in the appeals. (Code Civ. Proc., § 1085.) This interpretation ignores the statute’s consequence, namely, that “a failure to render a timely decision is an exhaustion of all available administrative remedies.” (§ 18671.1.) If an employee aggrieved by the Board’s delay is limited to seeking a writ of mandate directing the Board to perform its statutory duty, the consequence never would arise—in no case would the Board’s noncompliance with the time limitations of section 18671.1 be deemed an exhaustion of the employee’s administrative remedies.
Because section 18671.1 contains a consequence, it stands in marked contrast to the municipal ordinance which [this court] in Edwards v. Steele, supra, 25 Cal.3d at page 410, construed to be nonjurisdictional. That ordinance provided: “ ‘On the filing of any appeal, the Board of Permit Appeals . . . shall fix the time and place of hearing, which shall be not less than five (5) [days] nor more than fifteen (15) days after the filing of said appeal, and shall act thereon not later than forty (40) days after such filing.’ ” (Id., at p. 409, italics added.) The ordinance lacked any “ ‘consequence or penalty’ ” for noncompliance with its time limitations. (Id., at p. 410.) Therefore, notwithstanding the ordinance’s repeated use of the word “ ‘shall,’ ” the time limitations therein were deemed directory rather than mandatory. (Id., at pp. 409-410.)
For similar reasons, the Board errs in relying on Shaball v. State Compensation Ins. Auth. (Colo.App. 1990) 799 P.2d 399, an out-of-state decision which it contends is “on all fours” with the instant case. There, the employee argued the Colorado State Personnel Board lost jurisdiction when the hearing officer failed to issue a decision within the statutory 45-day period. (Id., at p. 402.) The statute stated in pertinent part: “ ‘The board or a hearing officer for the board shall issue its written decision within forty-five calendar days after the conclusion of the hearing and the submission of briefs.’” (Ibid., original italics omitted, new italics added.) Shaball recognized “[t]he crucial difference between statutes considered to be directory and those deemed mandatory arises from the consequence of noncompliance.” (Ibid., italics added.) Therefore, the statute, which did not contain any “negative language denying the exercise of authority beyond the time period prescribed for action,” was merely directory. (Ibid.)
In sum, unlike the statutes scrutinized in Edwards and Shaball, section 18671.1 specifies a consequence for noncompliance with its time limitations.
[1161](2) The consequence furthers the purpose of the statute.
As indicated, another test for ascertaining whether a particular time limitation is mandatory or directory focuses on whether the consequence would promote or defeat the purpose of the enactment. (Edwards v. Steele, supra, 25 Cal.3d at p. 410.)
The probable intent underlying section 18671.1 appears to be the same as the purpose behind the time limits considered in Edwards, namely, to assure the aggrieved party a reasonably timely hearing of, and decision on, his or her administrative appeal. (Edwards v. Steele, supra, 25 Cal.3d at p. 410.) Once the aggrieved employee is deemed to have exhausted the administrative remedy at the expiration of the statutory period, the employee becomes free to proceed to the next stage of the proceedings. [The legislative materials cited by the majority, indicating that the statute’s purpose was to permit an employee to “proceed to court” if the Board did not act in a timely fashion, amply supports this conclusion.] Consequently, to hold the time limitations of section 18671.1 are mandatory and jurisdictional promotes the purpose of the statute.
In contrast, in Edwards, a holding that the time provisions were mandatory and jurisdictional would have “defeat[ed]” the purpose of the ordinance “by depriving the aggrieved party of his appeal through no fault of his own.” (Edwards v. Steele, supra, 25 Cal.3d at p. 410.)
Similarly, in Chrysler Corp. v. New Motor Vehicle Bd. (1993) 12 Cal.App.4th 621 [15 Cal.Rptr.2d 771], a conclusion that the time provisions were mandatory and jurisdictional would have frustrated the purpose of the statute. Therefore, even though the statute specified a consequence for noncompliance, it was deemed to be merely directory. (Id., at pp. 629, 631.) The statute in issue there, Vehicle Code section 3067, provides “ ‘[i]f the [New Motor Vehicle Board] fails to act within 30 days after such hearing, . . . then the proposed action shall be deemed to be approved.’ ” (12 Cal.App.4th at p. 623.) Chrysler Corp. treated the statute as directory and not jurisdictional because a jurisdictional rule would have resulted in the automatic entry of a decision unfavorable to the protesting parties by virtue of the “deemed . . . approved” provision of Vehicle Code section 3067. (Chrysler Corp., supra, 12 Cal.App.4th at pp. 623, 630-631.)
However, in the instant case, the Board’s failure to act timely is not deemed to result in a decision adverse to the employees—it merely is deemed to result in an exhaustion of the employee’s administrative remedies. Therefore, unlike Edwards or Chrysler Corp., treating the instant time [1162]limitation as jurisdictional does not result in a denial or the unfair entry of an adverse decision on the merits. Instead, construing section 18671.1 to be jurisdictional furthers the statute’s aim of assuring the employee a timely disposition of his or her administrative appeal.
[I would note further that] a time provision has been held mandatory and jurisdictional to further the purpose of the statute, even though the statute did not specify a consequence or penalty for noncompliance. In Garcia v. Los Angeles County Bd. of Education (1981) 123 Cal.App.3d 807, 809-810 [177 Cal.Rptr. 29], it was contended the school board lacked jurisdiction to expel a student, as the hearing had not been held within the time period required by former Education Code section 48914. (See now Ed. Code, § 48918.) Garcia held the time provisions in the statute were mandatory and jurisdictional, although the statute lacked any consequence or penalty for the failure to act within the designated time. (123 Cal.App.3d at pp. 811, 813.)
Garcia reasoned the time provision was a matter of substance and the intent of the legislation was to provide a student with the protection of due process when faced with the possible forfeiture of the “ ‘legitimate entitlement to a public education as a property interest.’ [Citation.]” (Garcia v. Los Angeles County Bd. of Education, supra, 123 Cal.App.3d at pp. 811-812.) The statute was “obviously an attempt to define the period of delay during which it is reasonable to summarily deprive the student of his fundamental right to public education. The consequence of holding the time limit to be mandatory would, therefore, promote the purpose of the enactment.” (Id., at p. 812.)
In the context of this case, “the California statutory scheme regulating civil service employment confers upon an individual who achieves the status of ‘permanent employee’ a property interest in the continuation of his [or her] employment which is protected by due process.” (Skelly v. State Personnel Bd.[, supra,] 15 Cal.3d 194, 206 [124 Cal.Rptr. 14, 539 P.2d 774].) Therefore, treating the time provisions of section 18671.1 as mandatory and jurisdictional is appropriate because it furthers the purpose of the statute to limit delay in disciplinary proceedings.
In sum, because section 18671.1 contains a consequence for noncompliance, it differs from the provisions which were construed in Edwards v. Steele, supra, 25 Cal.3d at page 410, and Shaball v. State Compensation Ins. Auth., supra, 799 P.2d at page 402. Also, because enforcing section 18671.1 ’s consequence for noncompliance with its time limitation furthers the purpose of the statute, section 18671.1 is unlike the provisions considered in Edwards v. Steele, supra, 25 Cal.3d at page 410, and Chrysler Corp [1163]v. New Motor Vehicle Bd., supra, 12 Cal.App.4th at pages 630-631. Instead, section 18671.1 is akin to other statutes or rules which contain negative language denying the exercise of authority beyond the time prescribed for action.1
[The majority inexplicably concludes that although the statutory time frame is merely directory and is not jurisdictional, an aggrieved employee may nevertheless seek to enforce the statutory limit through a writ of mandamus proceeding. Thus, the majority would allow the Board to conduct administrative proceedings beyond the statutory limit, either voluntarily or through judicial compulsion, notwithstanding the fact that the failure to render a timely decision constitutes an explicit exhaustion of administrative remedies. The only argument advanced by the majority in support of this interpretation is that otherwise the Board might lose several weeks or months of investigative labor. This rather obvious consequence does not, in my view, render an otherwise clear statutory meaning so “unreasonable” or “absurd” as to compel a contrary construction. The majority also notes that an employee might prefer the more “practical” option of a less costly administrative proceeding to a judicial remedy. If so, the statute as written makes that option readily available, by providing that the prescribed time limits “may be waived by the employee.” It is unnecessary to rewrite the statute to preserve this option.]
[I thus] conclude section 18671.1 is mandatory and hence jurisdictional.
[1164][ 2.] Remedy for Board’s noncompliance with section 18671.1 is mandamus action by aggrieved employees against the employing departments.
The [California Correctional Peace Officers] Association contends the remedy for the Board’s noncompliance with section 18671.1 is dismissal of the adverse disciplinary actions.
The Board and the Departments [of Corrections and Youth Authority] argue the employees’ remedy is limited to securing an order from the superior court compelling the Board to hold a hearing or issue a decision within a time certain. [The majority adopts a third approach, concluding that an employee may simultaneously seek mandate to compel the Board to act on the administrative appeal, and directly challenge the employing agency’s adverse action by writ of mandamus pursuant to Code of Civil Procedure section 1085.]
For the reasons discussed below, [I] conclude as to those employees who did not waive the statute’s time limitations, the proper remedy is a mandamus action by the employee against the employing department to set aside the adverse action.
a. Because section 18671.1 is jurisdictional, Board cannot be mandated to decide these cases after the expiration of the statutory period.
Code of Civil Procedure section 1085 provides, inter alia, a writ of mandamus may be issued by any court to any “inferior tribunal, . . . 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[.]” There is no merit to the Board’s contention the employees’ remedy lies in seeking such a writ to compel the Board to hear and decide the cases pending before it.
As explained, the time limitations of section 18671.1 are jurisdictional. Therefore, once the statutory period expires and there has been no waiver of time by the employee, the Board loses jurisdiction to act on an administrative appeal. Consequently, the superior court cannot direct the Board to consider an administrative appeal beyond the time periods specified in section 18671.1.
Also, requiring an employee to seek a writ directing the Board to rule on his or her administrative appeal, notwithstanding the expiration of the statutory period, flies in the face of section 18671.1, which states at the [1165]expiration of the statutory period the employee is deemed to have exhausted the administrative remedy.
b. Administrative mandamus review under Code of Civil Procedure section 1094.5 likewise is inapplicable.
At the expiration of the statutory period without the issuance of a decision by the Board, the employee is deemed to have exhausted “all available administrative remedies” (§ 18671.1) and the Board is without jurisdiction to take any further action on an administrative appeal. Arguably, at that juncture the employee may advance to the next stage, namely, judicial review of the administrative decision by way of a petition for writ of administrative mandate. (Code Civ. Proc., § 1094.5.) Here, however, the cases were not in a posture to be reviewed by the superior court on a petition for writ of administrative mandate.
In some of the cases, no evidentiary hearing was held before the Board within the statutory period. Therefore, no administrative record existed to be scrutinized by the trial court on a petition for writ of administrative mandate. (Code Civ. Proc., § 1094.5, subd. (c); Shelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 204-205, 217, fn. 31.) [Fn. omitted.]
In other cases, while an evidentiary hearing was held before the Board, no decision was rendered within the statutory period. Thus, in those cases there was no Board decision to be attacked by the employee and to be reviewed by the superior court. (Code Civ. Proc., § 1094.5, subd. (a); Skelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 204-205.)
Consequently, due to the Board’s failure to hold timely hearings or to render timely decisions in the instant administrative appeals, the cases were not in a position to be reviewed by the superior court on a petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5.)
c. Appropriate remedy is a mandamus action by the employee directly against the employing department.
As an alternative, the Board proposes allowing an employee to file a petition for writ of mandate in the superior court against the employing department to compel the employer to revoke the disciplinary action on the ground the taking of the disciplinary action constituted an abuse of discretion. The suggestion has merit.
Code of Civil Procedure section 1085 states, inter alia, a writ of mandate “may be issued ... to compel the admission of a party to the use and [1166]enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.”
Thus, in Hollon v. Pierce (1967) 257 Cal.App.2d 468 [64 Cal.Rptr. 808], 'the employee brought a proceeding in mandamus against the employer after the employee’s administrative complaint languished without resolution. Initially, the employee filed an administrative complaint alleging an unfair unemployment practice. (Id., at p. 475.) The State Fair Employment Practice Commission commenced proceedings but failed either to reject the complaint or to render a final order and the commission proceeding “c[a]me to a complete halt.” (Id., at p. 476.) The employee then brought a proceeding in mandamus to compel reinstatement by his employer, a high school district. (Id., at p. 471.) The superior court held a hearing, took evidence, made findings and denied the petition. (Ibid.) A threshold issue presented on appeal was whether the employee adequately complied with the rule of exhaustion of administrative remedies. (Id., at p. 475.) Hollon stated: “Theoretically, the complaining employee might have brought a mandate proceeding with the objective of compelling commission action.” (Id., at p. 476.) However, the employee was not required to do so and his pursuit of reinstatement by way of a mandamus proceeding in the superior court was procedurally proper. (Ibid.)
In view of the above, [I] conclude that upon the expiration of the statutory period under section 18671.1, at which point an employee is deemed to have exhausted all available administrative remedies, the employee is entitled to seek judicial relief by way of a proceeding in mandamus to set aside the adverse disciplinary action. (Code Civ. Proc., § 1085.)
Given the lack of an administrative evidentiary record or any Board decision to be reviewed by the superior court, as in Hollon, the trial court will have to proceed de novo and receive evidence to determine whether the employer had legal cause to discipline the employee.
[]
[ 3.] [The burden of proof.]
[In Skelly v. State Personnel Board, supra, 15 Cal.3d 194, 206, this court recognized that public employees have a “property interest in the continuation of employment which is protected by due process.” “In the absence of sufficient cause,” we observed, “the permanent employee has a statutory right [under the Civil Service Act (Gov. Code, § 18500 et seq.)] to continued [1167]employment free of . . . punitive measures. . . . [and] the state must comply with procedural due process requirements before it may deprive its permanent employee of this property interest by punitive action.” (Id. at pp. 207-208.) A fundamental component of such due process is an administrative hearing before the Board, and it is “axiomatic, in [such] disciplinary administrative proceedings, that the burden of proving the charges rests upon the party making the charges.” (Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113 [179 Cal.Rptr. 351]; accord, Layton v. Merit System Commission (1976) 60 Cal.App.3d 58, 64 [131 Cal.Rptr. 318]; Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 582 [103 Cal.Rptr. 306]; see also Shelly v. State Personnel Board, supra, 15 Cal.3d at p. 207.)]
[As discussed in the preceding section, when the Board fails to perform its duties in a timely fashion, the employee may seek direct relief from the employing agency’s adverse action by way of a judicial proceeding for a writ of mandamus. The burden in such actions is traditionally on the party seeking the writ to prove an abuse of discretion by the agency or board in question. (Campbell v. Board of Dental Examiners (1971) 17 Cal.App.3d 872, 876 [95 Cal.Rptr. 351].) To apply the traditional burden of proof in this situation, however, would be to penalize the employee for the Board’s failure to perform, and would deprive the employee of the fundamental due process right to have the agency prove its case in the first instance. In Parker v. City of Fountain Valley, supra, 127 Cal.App.3d 99, for example, the question was whether the city could require a terminated police sergeant to bear the burden of proof. The court held that the procedure denied the public employee due process, explaining: “Since the administrative hearing was the first evidentiary inquiry into the facts giving rise to appellant’s discharge, the city, not the employee, was required to bear the burden of proof.” (Id. at p. 113.)]
[It is well settled that “[m]andate proceedings, although not of equitable origin, are governed by equitable principles.” (County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, 96 [132 Cal.Rptr. 167]; accord, Gonzales v. Internat. Assn, of Machinists (1963) 213 Cal.App.2d 817, 820 [29 Cal.Rptr. 190] [“While an application for a writ of mandamus is a special proceeding [citation], it is also to some extent a proceeding in equity.”]; see also San Diego County Dept. of Public Welfare v. Superior Court (1972) 7 Cal.3d 1, 9 [101 Cal.Rptr. 541, 496 P.2d 453]; Draper v. Grant (1949) 91 Cal.App.2d 566, 571 [205 P.2d 399]; Wallace v. Board of Education (1944) 63 Cal.App.2d 611, 617 [147 P.2d 8].) Apart from the violation of due process, it is fundamentally inequitable to shift the burden of proof from the employing agency to the employee merely because the Board has failed in [1168]its duty to render timely decision. Therefore, I would hold that the initial burden in a mandamus proceeding should fall to the employee to demonstrate that the state has taken disciplinary action against him or her, and that the Board has failed to act within the statutory time frame. At that point, the burden should shift to the employing agency to show cause for its adverse action. This allocation properly balances and preserves the respective rights and duties of the parties.]
[ 4.] No merit to Association’s contention the remedy for Board’s noncompliance with section 18671.1 is dismissal.
Under section 18671.1, the effect of the Board’s failure to act timely is that an employee is deemed to have exhausted all available administrative remedies. Generally, once a litigant has exhausted the administrative remedy, resort may be had to a court of law. Consequently, as explained above, once the instant administrative remedy is exhausted, the employee is entitled to bring a proceeding in mandamus directly against the employing department. Because section 18671.1 specifies Board delay merely results in an exhaustion by the employee of administrative remedies, there is nothing in the language of section 18671.1 to compel the conclusion the remedy for the Board’s delay is dismissal of the adverse disciplinary action. Further, the Association has not proffered any legislative history to support its contention the Legislature contemplated dismissal rather than judicial proceedings once the administrative remedy before the Board has been exhausted.
It is unnecessary to address any remaining arguments of the parties.
Conclusion
The Departments’ and the Board’s interpretation [of] the time limitations of section 18671.1 [as] merely [] directory would nullify the language of the statute that the failure to render a timely decision is deemed an exhaustion by the employee of all available administrative remedies. If an employee’s remedy for the Board’s noncompliance were limited to seeking a writ under Code of Civil Procedure section 1085 to compel the Board to act on the employee’s administrative appeal, a situation where the employee is deemed to have exhausted his or her administrative remedies never would arise. The consequence of the Board’s failure to comply with section 18671.1 is that the employee is deemed to have exhausted all available administrative remedies and may seek judicial relief by way of a proceeding in mandamus directly against the employing department.
[The majority’s conclusion that the Board may continue to conduct administrative proceedings after the employee is deemed to have exhausted his [1169]or her administrative remedy is similarly contrary to the statutory language and purpose.]
While [I] recognize inadequate staffing and funding may have made the Board’s task more difficult to accomplish, section 18671.1 compels the Board to proceed timely in order to protect the affected employees’ property interest in their employment. (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 206.) Financial constraints cannot be deemed an excuse for failure to comply with mandatory duties imposed by law. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 217 [211 Cal.Rptr. 398, 695 P.2d 695]; Mooney v. Pickett (1971) 4 Cal.3d 669, 680 [94 Cal.Rptr. 279, 483 P.2d 1231].) If the requirements of section 18671.1 cannot be met with the Board’s limited resources, the Board must address its concerns to those with the authority to set policy, not to the courts by way of excusing violations of mandatory requirements. Further, while the Departments are not responsible for the inordinate delay by the Board, neither are the affected employees.
If [the foregoing] interpretation is not what the Legislature intended in the enactment of section 18671.1, it may amend the statute to delete the provision that at the expiration of the statutory period, an employee is deemed to have exhausted all available administrative remedies and instead, provide the remedy for delay by the Board is a writ of mandate directing the Board to proceed timely.
Mosk, J., and Kennard, J., concurred.
Brackets together in this manner! ] without enclosed material are used to denote deletions from the opinion of the Court of Appeal; brackets enclosing material are used to denote additions. Footnotes in the Court of Appeal opinion that have been retained are sequentially renumbered.
For example, section 911.6, within the Government Tort Claims Act (§810 et seq.), provides at subdivision (c): “If the board [of the governmental entity] fails or refuses to act on an application [to present a late claim] within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day . . . .”
Under Code of Civil Procedure section 629, a trial court shall render judgment notwithstanding the verdict “before the expiration of its power to rule on a motion for a new trial[.]”
Code of Civil Procedure section 630, pertaining to a motion for directed verdict, similarly states at subdivision (f), “the power of the court to act. . . shall expire 30 days after the day upon which the jury was discharged, and if judgment has not been ordered within that time the effect shall be the denial of any motion of judgment without further order of the court.”
Likewise, under Code of Civil Procedure section 660, if the trial court fails to rule on a motion for new trial before the expiration of the specified time within which the trial court may rule on the motion, “the effect shall be a denial of the motion without further order of the court.”
Also, California Rules of Court, rule 24(a), states, “[w]hen a decision of a reviewing court is final as to that court, it is not thereafter subject to modification or rehearing by that court, . . .”