If a return be made, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had, and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him.
§ 1090.Question of Fact Ordered Tried Before Jury
Title 1. Of Writs of Review, Mandate, and Prohibition · Chapter 2. Writ of Mandate · Last amended 1971 · Last verified July 29, 2026
In one sentenceSection 1090 lets the court, in its discretion, send a disputed material fact raised by the return to a jury trial, postponing argument on the writ until the verdict comes back, and authorizes the jury to assess any damages the applicant may have suffered if the verdict favors the applicant.
Full Text of § 1090
Plain-English Summary
Mandate proceedings are normally decided by the court, but this section recognizes that a return can raise a genuine factual dispute — one essential to the outcome and touching the parties' substantial rights, resting on the truth of allegations the application depends on. When that happens, the court may, at its discretion, order the disputed question tried before a jury and hold off on hearing argument until the trial is done and the verdict is certified back.
The order sending the question to trial has to state clearly what question the jury will decide and which county will host the trial. The court can also direct the jury to assess any damages the applicant may have suffered, if the jury's verdict comes out in the applicant's favor — folding a damages determination into the same trial rather than requiring a separate proceeding.
Frequently Asked Questions
Can a factual dispute in a mandate case go to a jury?
Yes. Section 1090 lets the court, in its discretion, order a truly disputed material fact tried before a jury, postponing argument on the writ until the verdict is certified back.
What must the order sending the case to a jury include?
A clear statement of the question to be tried and the county in which the trial will be held.
Can the jury also decide damages?
Yes, the order may direct the jury to assess any damages the applicant sustained if the verdict is in the applicant's favor.
Amendment History
Amended by Stats. 1971, Ch. 1475.
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: jury trial writ of mandate california