Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-242776
Kline, P.J.
INTRODUCTION
Phyllis Oden sought a writ of mandate to compel respondent California Department of Social Services, Community Care Licensing Division, to perform its mandatory duty to act upon her application to relocate her child daycare facility from Richmond to Fairfield, California. Following appellant’s filing of the action, respondent denied the license. On September 11, 2008, the Sonoma County Superior Court sustained respondent’s demurrer to her writ petition on the ground that the department’s action rendered her petition moot. It therefore dismissed her writ petition with prejudice. Appellant appeals in propria persona from the orders sustaining the demurrer and dismissing her writ petition. We shall affirm.
BACKGROUND
In August 2007, appellant applied for a family child care license to relocate her child daycare facility from Richmond to Fairfield, California. At respondent’s request, appellant provided further information to complete the application process. On April 29, 2008, while represented by counsel, and while her license application was pending, appellant filed a petition for writ of mandate, entitled “Verified Petition for Writ of Mandate to Require Community Care Licensing Division to Perform Mandatory Duty to Act on Application (Code Civ. Proc., § 1085)” seeking to compel respondent to act on her application. In the prayer to the petition, appellant requested the court issue a writ of mandate requiring respondent “forthwith... and no later than 15 days after issuance of the writ, to formally decide to either issue a license to Oden or deny her that license....” No other substantive relief was sought.
On July 14, 2008, respondent demurred to the petition on the ground that it had denied the license and had so informed appellant in a letter dated May 12, 2008.
Respondent sought to change the date for the hearing on the demurrer, which was set for October15, 2008, after the August 27, 2008 date set for hearing on the petition for writ of mandate. Following appellant’s refusal to stipulate to change the demurrer hearing date so that it might precede the hearing on the writ petition, and following notice to appellant, the court granted respondent’s ex parte request to exchange the dates of the hearing on the petition for writ of mandate and the demurrer, setting the date for hearing on the demurrer to August 27, 2008. The order granting the request to exchange hearing dates was served upon appellant by mail on July 28, 2008. The court issued a tentative ruling sustaining the demurrer, and at the August 27, 2008 hearing on the demurrer, the court took judicial notice of the May 12th letter and sustained the demurrer without leave to amend, finding that appellant’s lawsuit was moot. This timely appeal followed.
Respondent has moved to strike documents contained at pages 189 through 200 from appellant’s appendix and documents attached to appellant’s opening brief. These documents were not part of the superior court proceedings in this matter, are not conformed copies and are outside the record of this appeal. (Cal. Rules of Court, rules 8.124(b)(1)(A) and (d); see In re Marriage of Green (1984) 159 Cal.App.3d 1163, 1164, fn. 2.) Appellant argues that these documents support “statements already made in the mandate and cause of action for the lawsuit” and are part of the record because they “would have been a part of the Superior Court Proceedings if there was a court proceeding held.” Although the documents would make no difference to our decision here, we nevertheless grant the motion to strike them as outside the record on this appeal.
DISCUSSION
I. Hearing
As a threshold matter, it appears that appellant may be contending that the decision was made without her being heard. Appellant’s briefing on this point is nearly incomprehensible. She appears to state both that the tentative ruling was made without an oral argument and that “the question of oral argument was not heard and information could not be presented before the decision was made.” Appellant has waived any claim of error by her failure to make a clear argument on this point or to support it with relevant citations of authority—or, indeed, with any citations of legal authority. (Eisenberg et al., Cal. Prac. Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:17.1, pp. 8-5 to 8-6.)
Respondent did not appear at the August 27, 2008 hearing. The court’s minute order states “[t]here is no appearance by either side.” However, we note that the order sustaining the demurrer states that “Petitioner, Phyllis Oden, appeared in pro per.” There is no reporter’s transcript of the hearing.
II. Standards of Review
A return to a writ of mandate may be made by demurrer. (Code Civ. Proc., § 1089.) “A proceeding in mandamus is subject to the general rules of pleading applicable to civil actions (Code Civ. Proc., § 1109) except as otherwise provided in Code of Civil Procedure sections 1067 to 1110b.” (Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 573). “The sustaining of a demurrer without leave to amend is reviewed de novo. The reviewing court exercises its independent judgment as to whether a cause of action has been stated as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The appellant bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 648.)
On this appeal, appellant has not argued that she could amend the petition to state a cause of action.
III. Mootness
Code of Civil Procedure section 1085 provides that a writ may issue to compel a government official or board “to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station....” (Code Civ. Proc., § 1085.) Here, respondent performed the only duty charged in the petition—to act upon the application. The gravamen of the action was to compel respondent either to grant or to deny the license. The superior court properly found the petition moot.
It is well established that mandamus will not lie to control an exercise of discretion, that is, to compel an official to exercise discretion in a particular manner (8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 94, p. 987). However, “mandamus will lie to compel an officer, board, or court to exercise its discretion, where it refuses to act at all.” (Ibid.) Mootness is a proper ground for denying a writ seeking extraordinary relief. (8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 148, p. 1047; California Teachers Assn. v. Ingwerson, supra, 46 Cal.App.4th at pp. 873-874 [a petition to compel a county to develop a budget that did not include teachers’ salary reductions and freezes was moot, because the county had already adopted its budget when the petition was heard].)
“ ‘Mandamus will lie to compel a public official to perform an official act required by law. (Code Civ. Proc., § 1085.) Mandamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. Mandamus may issue, however, to compel an official both to exercise his [or her] discretion (if he [or she] is required by law to do so) and to exercise it under a proper interpretation of the applicable law. [Citations.]’ [Citations.] Mandamus will also lie to correct an abuse of discretion by an official acting in an administrative capacity. [Citations.] The trial court is to presume the decisions of the agency or public official which are subject to traditional mandamus review are correct. [Citations.]” (California Teachers Assn. v. Ingwerson (1996) 46 Cal.App.4th 860, 865.)
In these circumstances, any ruling by the trial court ordering respondent to make a decision would have had no practical impact, nor would it have provided any relief. (See Woodward Park Homeowners Assn v. Garreks, Inc. (2000)77 Cal.App.4th 880, 888 [“A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief”].)
The trial court did not abuse its discretion in denying the writ petition as moot.
DISPOSITION
The order denying the writ petition as moot is affirmed.
We concur: Haerle, J., Lambden, J.