When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.
§ 1088.Application Made Without Notice and Writ Allowed; Application Upon Due Notice and Writ Allowed
Title 1. Of Writs of Review, Mandate, and Prohibition · Chapter 2. Writ of Mandate · Last amended 1907 · Last verified July 29, 2026
In one sentenceSection 1088 requires an alternative writ when the application is made without notice, allows a peremptory writ to issue immediately on at least ten days' notice, requires a copy of the petition served with the writ or notice, forbids granting the writ by default, and requires a hearing regardless of whether the respondent appears.
Full Text of § 1088
Plain-English Summary
This section connects notice to the choice between the two writ forms described in § 1087. Apply without giving the adverse party notice, and the alternative writ must issue first, giving the respondent a chance to be heard before anything becomes final. Apply on due notice instead, and the court can issue the peremptory writ right away.
Either way, the respondent has to receive a copy of the petition — served along with the alternative writ itself, or along with any notice of intent to apply for one. When notice is given, it has to run at least ten days.
Two protections apply no matter which path the petitioner takes. The writ can't be granted by default just because the respondent fails to show up, and the court has to hear the case on its merits whether or not the respondent appears. Mandate isn't a remedy a petitioner can win purely through the respondent's silence.
Frequently Asked Questions
What happens if I apply for a writ of mandate without notifying the other side?
The alternative writ must issue first under § 1088, giving the respondent an opportunity to appear and show cause before a peremptory writ can follow.
Can I get a peremptory writ right away?
Yes, if the application is made on due notice to the respondent — at least ten days' notice is required.
Can a court grant a writ of mandate just because the respondent didn't show up?
No. Section 1088 says the writ cannot be granted by default, and the court must hear the case whether or not the respondent appears.
What has to be served along with the alternative writ?
A copy of the petition, served on each person against whom the writ is sought.
Amendment History
Amended by Stats. 1907, Ch. 244.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: notice requirements writ of mandate californiacan a writ of mandate be granted by default