1102 WRITS OF REVIEW Note 41 Title 1 rari C = > 29; Judgment &=> 504(3); Prohibition Superior Court for

Los Angeles County (App. 2 < 3 = ii Dist. 1967) 62 Cal.Rptr. 435, 253 CaI.App.2d = 28(2); Prohibition <= .10(1) The determination of jurisdictional facts can- 670. Certiorari @ For trial court to be acting "without or' in not be collaterally attacked in proceeding for writ of prohibition. Mills Music v. Lampton excess of jurisdiction" as that term- is used in (App. 2 Dist. 1940) 40 Cal.App.2d 354, 104 P.2d relation to remedy of prohibition it is not necessary that there be lack of jurisdiction over sub893. Prohibition^ 10(1) ject matter or parties in fundamental sense but II. JURISDICTION only that there be want or excess of power of court as defined by statute or rules developed Subdivision Index and followed under doctrine of stare decisis. Administrative proceedings, excess of jurisdic- Corona Unified Hospital Dist. v.. Superior Court tion 50 of Riverside County (1964) 40 Cal.Rptr. 745, 61 Concurrent jurisdiction with another court or Cal.2d 846, 395 P.2d 817. 'Prohibition S 10(1) board 43 Prohibition arrests proceedings of any tribuConstruction and application 41' nal, corporation, board, or person exercising Determination of jurisdiction 42 judicial functions, when such proceedings are Excess of jurisdiction 48-51 without or in excess of jurisdiction. Fleischer In general 48 v. Adult Authority .(App. 3 Dist. 1962) 20 Cal: Administrative proceedings 50 Rptr. 603, 202 Cal.App.2d 44. Prohibition @ = *1 Inferior courts 49 Prohibition is granted to restrain further exerWaiver 51 cise of jurisdiction. Cahn v. Jones (App. 1950) Inferior courts, excess of jurisdiction 49 101 Cal.App.2d 345, 225 P.2d 570.- Prohibition Inferior courts, lack of jurisdiction 45 =>10(1) Lack of jurisdiction 44-47 In general 44 Whether emergency price control act limited Inferior courts 45 time within which tenants might bring action to Necessity for objection 47 recover treble damages for alleged rent overPersonal jurisdiction 46 charges to 30 days after overcharges were made Necessity for objection, lack of jurisdiction 47 could be tested by prohibition only if time limiPersonal jurisdiction, lack of jurisdiction 46 tation in act went to jurisdiction of court, and Waiver, excess of jurisdiction 51 petitioners had no plain, speedy and adequate remedy in ordinary course, of law. Gorbacheff v.Justice's Court of City of Berkeley, AJameda 41. Construction and application, jurisdiction County (1947) 31 Cal.2d 178, 187 P.2d 407. Prohibition will lie to restrain court from pro- Prohibitions 3(1) ceeding without or in excess of its jurisdiction. In certiorari and prohibition- proceedings, Los Angeles County v. Superior Court for Los term "jurisdiction" has a very broad meaning, Angeles County (1967) 62 Cal.Rptr. 435, 253 arid writ may be granted where court has no A.C.A. 754; American Soc. of Composers, Au- jurisdiction to- act except in a particular manthors and Publishers v. Superior Court of Los ner, though it has jurisdiction in the, fundamenAngeles County (1962) 24 Cal.Rptr. 772, 207 tal sense over subject, matter and parties. ResCal.App.2d 676; Morehouse v. Superior Court cue Army v. Municipal Court of City of Los in and for Los Angeles County (1932) 12 P.2d Angeles (1946) 28 Cal.2d 460, 171 P.2d 8, ap133, 124 CaLApp. 38; Dakan v. Superior Court peal dismissed 67 S.Ct. 1409, 331 U.S. 549, 91 of Santa Cruz County (1905) 82 P. 1129, 2 L.Ed. 1666. Certiorari "3= 28(1); Prohibition Cal.App. 52. = 10(1) "Prohibition" attacks only the jurisdiction of In its ordinary sense; for purpose of determinthe court. Goodman Bros. v. Superior Court of ing right to review by certiorari, restraint by City and County of San Francisco (1942) 124 prohibition, or dismissal of an action, a much P.2d 644, 51 Cal.App.2d 297; Drew v. Superior broader meaning is given to term "jurisdiction" Court in and for Mendocino County (1919) 185 than its fundamental meaning, and term may be P. 680, 43 Cal.App. 651. applied to a case where, though court has jurisGenerally, any acts which exceed the defined diction over subject-matter and parlies in fundapower of a court in any instant, whether that mental sense, it has no power to act except in a power be defined by constitutional provision, particular manner, or to give certain kinds of express statutory declaration, or rules devel- relief, or to act without occurrence of certain oped by the courts and followed under the doc- procedural prerequisites. Coates v. Klette (App. trine of stare decisis, are in excess of jurisdic- 3'Dist. 1941) 119 P.2d 397, vacated 20 Cal.2d tion, insofar as that term is used to indicate that 897, 125 P.2d 500, hearing granted. those^acts may be restrained*by prohibition or Where charter of city of Fresno empowered annulled on certiorari. Los Angeles County v. city commission to try charges of misfeasance 509

1102 SPECIAL PROCEEDINGS Note 14 Part; 3 by tribunal, corporation,'board, or person hav- (1940) 16 Cal.2d 691, 107 P.2d 611. Courts ? ing jurisdiction of proceeding. Fitts v. Superior 207.5 Court-in and for Los Angeles County (1935) 4 "Prohibition"-may not issue except for purCal.2d 514, 51 P.2d 66. Prohibition 3(2) pose of arresting proceedings of those exercisWrit of prohibition is not a writ of error, and' ing judicial functions. Walsh v. Railroad Comis not available as an original writ in matters mission (1940) 16 Cal.2d 691, 107 P.2d 611. = 1 properly taken by writ of error or appeal. Prohibition Amos'v. Superior Court of California, in and for In proceeding for writ of prohibition or of San DiegoCounty (1925) 196 Cal. '677, 239 P. mandate to terminate litigation by public ad317. Prohibition = 3(2) ministrator who sought to set aside decedent's The writ cannot be used as a writ of error to transfers of property and to quiet title to such determine a question of fact which was for the property in decedent's estate, wherein mandate trial court to determine, but only to determine was' granted directing dismissal of litigation, whether the superior court is proceeding in contention that respondents should be assured excess of'its jurisdiction. Conlan v. Superior fees to which they were entitled as a result of Court (App. 1910) 12 Cal.App. 420, 107 P. 577. the administration, would not be considered; Prohibition'3 1 being a matter for the probate court. Perry v. Superior Court of Marin County (App. 1 Dist. 15. Review, similarity and interchangea- 1938) 29 Cal.App.2d 114, 84 P.2d 250. Mandamus = > 172; Prohibition @ = " '2 8 bility of extraordinary writs The specific conditions for the issuance of a Whether one violating injunction against diwrit of review differ from those provided for version of water acted as agent of parties enwrits of mandamus, and prohibition and author- joined, or in exercise of paramount right to ity for the issuance of the latter writs is not divert'it, was for. trial court. Felton Water Co. generally applicable to the issuance of the for- v. Superior Court of Santa Cruz County (App. 1 mer." Monterey Club v. Superior Court in and Dist. 1927) 82 Cal.App. 1, 254 P. 915. Prohibifor Los. Angeles County (App. 2 i-Dist. 1941) 44 tion = > 28 CaLApp?2d 351, 112 P.2d 321. Certiorari < 3 = > 1 Prohibition will issue to restrain referees in Remedy by writ of review will be given, condemnation proceedings from taking prothough prohibition only was petitioned for, ceedings "which might be without or in excess of where if appears on complete record that peti- their jurisdiction, such referees being "persons tioner is entitled to remedy afforded by writ of exercising judicial functions" within this secreview. Smurda'v. Superior Court of State of tion. Apartment & Hotel Financing Corp. v. California, in and for Los Angeles County (App. Will (App. 2 Dist. 1924) 69 Cal.App. 276, 231 P. 2 Dist. 1928) 266 P. 843, hearing granted. 349. Prohibition = 5(3) Application for writ of prohibition to restrain Prohibition lies only where a'public officer is superior court from trying an appeal from jus- acting without or in excess of jurisdiction, tice court would not be treated as a writ of which is not the case where a justice of the review upon'determination of appeal by superi- peace erroneously determines that an affidavit or court before service of writ, where a com- filed before him is sufficient. Cassidy v. Canplete record had not been brought up so that non (App. 1912) 18 Cal.App. 426, 123 P. 358, court could know that it was doing exact justice rehearing denied 18 Cal.App.-426, 123 P. 359. between parties. Davis v. Superior Court-of Prohibition =10(2) California in and for Alameda County (App. 1 'Under this section, a writ of prohibition will Dist. 1925) 71 Cal.App. 646, 236 P. 151. Prohi- not issue to arrest the action of,a number of bition = 28 persons assuming to act as a board of trustees, Prohibition is a writ for preventive relief, and where the petition for the writ alleges that the is not a writ of review; nor will it serve as a persons whose "actions are sought to be resecond appeal, after the adverse determination strained are neither in law nor in fact a board of of the only appeal given by statute. Valentine v. trustees. Hevren v. Reed (1899) 126 Cal. 219, Police Court of City and County of San Francis- 58 P. 536. co (1904) 141 Cal. 615, 75 P. 336. Prohibition 17. Collateral attack < 3 =1 Even'if trial court in passing on motion for 16. Acts of those exercising judicial functions summary judgment committed error in not City attorney's prosecution1 of alleged viola- recognizing triable issue contended for by plaintors of motor carrier transportation agent act tiff, such error would not be grounds for a was not exercise of "judicial function" so as to collateral attack on judgment or for" direct atwarrant issuance of prohibition against' city at- tack by jurisdictional writs of certiorari or protorney by supreme court exercising original-ju- hibition. Perego v. Seltzer (App. 1 Dist. 1968) risdiction. Walsh v. Railroad Commission 67 Cal.Rptr. 636, 260 Cal.App.2d 825. .Certio508

1102 SPECIAL PROCEEDINGS Note 41 Part 3 and malfeasance in office filed by one of its App.2d 604; Harden=v. Superior Court, In and members against city physician, and under For Alameda County (1955) 284 P.2d 9, 44 charter three of the five members could try the Cal.2d 630. charges, commission had jurisdiction to hear Determination of jurisdiction of superior case, notwithstanding that presence of allegedly court over action by employer against union disqualified member by whom charges were through union's application for writ of prohibipreferred, sitting at the trial, might be serious tion against court was justified, where trial was error. Nider v. Homan (App. 1939) 32 Cal. anticipated to last six. days, some of defendants App.2d 21, 89 P.2d 135. Municipal Corpora- would attend trial with greatest inconvenience tions-^ 159(2) and many of witnesses would depend for their The test of jurisdiction of a tribunal or person livelihood on daily wages. Bricklayers and Maagainst which or whom a writ of prohibition is sons Union No. 1 of Cal. v. Superior Court of sought is whether such tribunal or person is Kings County (App. 5 Dist. 1963) 31 Cal.Rptr. authorized by law ,to hear and' determine the 115, 216 Cal.App.2d 578. Prohibition <&> 10(2 proceeding before it. Fels v. Justice's Court of Fact that trial court denied defendant's moCity of Berkeley (App. 1 Dist. 1938) 28 Cal. tion for summary judgment did not constitute App.2d 739, 83 P.2d 721. Prohibition ^ 10(1) positive assumption of jurisdiction by court, and A writ of prohibition can only prohibit "any court would not be restrained from determining tribunal,' corporation, board, or person exercis- question of its own jurisdiction. American Soc. ing judicial functions from acting without or in of Composers, Authors and Publishers v. Supeexcess of its .jurisdiction. Ames v. Superior rior Court of Los Angeles County (App.. 2 Dist. Court in and for San Diego County (App. 4 Dist. 1962) 24 Cal.Rptr. 772, -207 Cal.App.2d 676. 3 = > 10(2) .1938) 28 Cal.App.2d 502, 82 P.2d 948. Prohibi- Prohibition < tion & =1 Where defendant charged with statutory vioDistrict court,, of appeal has power to recall lation in justice court proceeding^did-not chaland quash alternative writ of prohibition which lenge jurisdiction of that court- by demurrer, has been [.inadvertently ;issued upon misappre- motion, "plea or other, objection so "that court hension-t>f facts involved. Joerger v.. Superior could preliminarily decide question of whether Court of- Shasta County (App. 1934) 2 Cal. it had jurisdiction, there was nothing for supeApp.2d 360, 37 P.2d 1084. Prohibition G= 24 rior court to prohibit on his application for writ Where superior court had jurisdiction to de- of prohibition challenging justice court jurisdictermine questions presented on application for tion on ground that statute was void and inefprohibition, writ to restrain superior court from fective to confer jurisdiction, and court comproceeding was refused. Fischer v. Superior mitted error in i granting peremptory* writ of Court in and for Los Angeles County (App. '2 prohibition. Shaffer v. Justice Court of'Chico Dist. 1930) 105 Cal.App. 466, 287 P. 556. Pro- Judicial Dist., Butte County'(App..,3'Dist. 1960) 8 Cal.Rptr. 269, 185 CaI.App.2d 405. .Prohibihibition^ 10(2) Prohibition arrests proceedings of any'tribu- tion = 17 Where superior court had not determined nal exercising functions in proceedings of which they have no jurisdiction. Williams Co. v. Su- that it had jurisdiction to issue preliminary inperior Court of California, within and for Los junction to restrain picketing by members of Angeles County (App.' 2 Dist. 1929) 97 Cal.App. union, but it had issued a temporary restraining order to show cause, it thereby determined that 422, 275 P. 838. Prohibition = > 10(1) had jurisdiction of the subject matter and That one judge of a court exercises authority it exercised that jurisdiction, and prohibition in a case property belonging to another judge is would therefore lie to restrain superior court not a matter of jurisdiction controllable in pro- from acting further in excess of its jurisdiction. hibition. Graziani v. Denny (1917) 174 Cal. Holt v. Superior Court, Los Angeles County 176, 162 P. 397. Prohibition = 11 (App.,1950) 100 Cal.App.2d 403, 223 P.2d 881. Prohibition^ 10(2) 42. Determination of jurisdiction Where defendant state had interposed defense When trial court' has heard and determined jurisdictional challenge and has decided in fa- of sovereign immunity from suit, state was entivor of its own jurisdiction and then proceeds to tled to invoke prohibition to prohibit court from act and try cause on its merits, it may then-be entertaining further proceedings in the, action, claimed that court without jurisdiction is pur- since such defense presented a jurisdictional porting to exercise it and then jurisdiction-' to question. People v. Superior Court of City and determine jurisdiction has been exercised 'and County of San Francisco (1947) 29 Cal.2d 754, higher courts will restrain lower court from 178P.2dl. Prohibition => 10(2) acting in excess of its jurisdiction. River The superior court had jurisdiction to deterFarms, Inc. v. Superior Court of San Bernardi- mine whether case pending before it was within no County (1967) 60 Cal.Rptr. 665, 252 Cal. the jurisdiction of the municipal or of the supe510

1102 Note 43 181; Strosniden v. Superior Court in and'for El Dorado County (1937) 62 P.2d 1394, 17 Cal. App.2d 647; Lee v. Superior Court of California in and for City and County of San Francisco (1923) 214 P. 972, 191 Cal. 46. Prohibition "proceeding was proper to test ruling of- superior court that employee injured in course of his employment could maintain common-law action in superior court for negligence against his employer's compensation insurer based on insurer's alleged failure to fulfill its commitments with employer regarding plant safety inspections and that 'industrial accident commission did .not have exclusive jurisdiction in such case. State Compensation Ins., Fund v. Superior Court for Siskiyou County (App. 3 Dist. 1965) 46 Cal.Rptr. 891, 237 ,Cal.App.2d 416. Prohibition < 3 = 11 Prohibition lies to restrain superior court from proceeding in divorce action brought'1 by 43. Concurrent jurisdiction with another wife who-<had previously instituted identical divorce proceedings in superior court for another court or board county. Loftis v. Superior Court In and For The pendency of a prior' action in a court of San Diego County (App. 4 Dist. 1962) 23 Cal. competent jurisdiction, predicated on same Rptr. 125, 205 Cal.App.2d 148. Prohibition^ cause of action and between the same parties 10(2) constitutes good ground for abatement of a later Where,there were seven defendants in suit in action within the same jurisdiction either in same court or in another court having jurisdic- Merced County action seeking declaratory relief tion, and first court to assume and exercise as to rights and obligations of parties under jurisdiction in a particular case acquires exclu- contracts for drilling of water wells' in Kings sive jurisdiction and prohibition, lies to restrain County and only three defendants in. Kings another court from proceeding if it is threaten- County suit seeking foreclosure of mechanics' ing to do. so. Kalmus v. Kalmus (1951) 230 liens, property owners were not entitled to pro: P.2d 57, 103 Cal.App.2d 405, certiorari denied hibition in _ Kings County suit when many of 72 S.Ct. 292, 342 U.S. 903, 96 L.Ed. 676; Sim- parties in Merced case could not properly be mons, v. Superior Court in and for Los Angeles brought into Kings County'suit, and when scope County (1950) 214 P.2d 844, 96 Cal.App.2d 119, of. issues in two actions differed and subject matter was diverse. Robinson v. Superior 19A.L.R.2d288. In and For Kings County (App. 5 Dist. Where two tribunals have concurrent jurisdic- Court 1962) "21 475, 203 Cal.App.2d 263. tion over the same parties and subject matter, ProhibitionCal.Rptr. < S 10(2) the tribunal in which jurisdiction first attached An action wherein plaintiff sought modificais entitled to retain it exclusively, and prohibition lie's to restrain the other tribunal from tion of terms of notes and trust deeds for alleged taking any further proceedings pending the fraud and conspiracy in respect thereto, and complete exercise of such jurisdiction. M. H. also sought judgment for usury, was a personal Golden Const. Co. v. Superior Court of State, in action transitory in character, and when superiand for Imperial County (1950) 221 P.2d 218, or court of county in which action was com98 Cal.App.2d 811; Myers v. Superior, Court.in menced assumed jurisdiction over, the subject and for Calaveras County (1946)-172 P.2d 84, matter, its jurisdiction was exclusive, and 75 Cal.App.2d 925; Browne v. Superior Court threatened invasion thereof by commencement in and for City and County of San Francisco of a similar action in another county by defen(1940) 107 P.2d 1, 16 Cal.2d 593, 131 A.L.R. dants, presented a proper case for prohibition. Cade v. Superior Court In and For San Bernar276. Prohibition will lie to restrain one court from dino County (App. 4 Dist. 1961) 12 Cal.Rptr. = * 7; Courts assuming jurisdiction^ over a matter which'an- 847, 191 CaI.App.2d 554. Courts @ = > 10(2) other tribunal having concurrent jurisdiction 475(1); Prohibition has already assumed and is exercising. CaliforSuperior court which first acquired jurisdicnia Press Mfg. Co. v. Superior Court^of Santa tion of subject matter and parties to action for Clara County (1942) 128 P.2d 680, 20 Cal.2d specific performance of contract for sale of 777; Wright v. Superior Court in and for Calav- property was charged with the duty of litigating eras County (1941) 110P.2d529, 43 Cal.App.2d all the issues and giving all the relief to which 511 WRITS OF REVIEW : Title 1 rior court, and its determination of the question, whether right or wrong, was not without nor in excess of its jurisdiction; , hence if its ruling on the question was erroneous the error was merely one to be corrected upon appeal, and writ of prohibition would not lie to prohibit superior court from trying the action. Rausch v. Superior Court in and for Los Angeles'County (App. 2 Dist. 1940) 40 Cal.App.2d 707, 105 P.2d 627. Prohibition = > 10(1) If the question of the jurisdiction of an inferior court has been raised by an. appropriate objection, an appellate court will not issue a writ of prohibition to restrain further proceedings in the lower court until the inferior court has ruled upon the question which has been presented for its determination. Noland v. Superior Court of Ventura County (App. 2 Dist. 1938) 26 Cal.App.2d 708, 80 P.2d 76. Prohibition = 18

 1102 SPECIAL PROCEEDINGS Note 43 Part 3 any of the parties might be entitled under the That the jurisdiction of town trustees was first pleadings, and fact that remedy sought in action obtained in an election.contest, did-not call for to quiet title to the property subsequently' com- the issuance of a writ of prohibition to prevent menced by vendor in another county was not the district court from entertaining jurisdiction precisely the same did not affect purchasers' of the same contest; the jurisdiction being conright to have proceedings in quiet title action current, the proper procedure is to apply to the stayed pending final determination of action for district court to stay the proceeding on the specific performance. Myers v. Superior Court ground of another action pending. McGregor in and for Calaveras County (App. 1946) 75 v. Board of Trustees of Town of Burlingame Cal.App.2d 925, 172 P.2d 84. Courts = 479 (1911) 159 Cal. 441, 114 P. 566. Prohibition^ When superior court assumed jurisdiction 3(1) On an application for a*writ of prohibition to over subject matter of action by purchasers for breach of contract for sale of property as of prevent a superior court of a particular county time when summons was served'on complaint from assuming jurisdiction of a decedent's estherein filed and continued to maintain jurisdic- tate on the ground that an application for letters tion after filing of amended complaint seeking of administration was first made in another specific performance of contract, the jurisdic- county, the question whether the decedent had any estate in the latter county cannot be raised, tion of such court was exclusive, and prohibi- that being determinable by the superior court. tion to arrest proceedings in excess of jurisdic- Dungan v. Superior Court of Fresno County tion would issue to stay proceedings in action to (1906) 149 Cal. 98, 84 P. 767. Prohibition < 2 = quiet title .to such property commenced by ven- 28 M dor in another county after summons had been served in purchasers' action. Myers v. Superior ft Court in and for Calaveras County (App. 1946) 44. Lack of jurisdictionIn general In prohibition matters,'phrase "lack of jurisr 75 Cal.App.2d 925, 172 P.2d 84. Courts < S = > diction" may be applied to case where, though 475(1); Prohibition^ 10(2) court has jurisdiction oven subject matter and The fact that" second action in respondent parties in fundamental sense, it has no jurisdicsuperiorVourt was based on'the same written tion or power to act except in particular mansales contract, as action in another superior ner, or to give certain kinds of relief, or to act court which had previously acquired jurisdic- without occurrence of. certain procedural pretion did not warrant issuance of writ of prohibi- requisites. Schindler v. Municipals Court, Los tion against respondent superior court on Angeles Judicial Dist., Los Angeles County ground that it had no jurisdiction, where the (1962) 21 Cal.Rptr. 217, 203 Cal.App.2d 13; second action was directed to an accounting for City and County of San Francisco v. Superior sales made subsequent to the filing of the first Court of City and County of San Francisco action. California Press Mfg. Co. v. Superior (1960) 1 Cal.Rptr. 158, 347 P.2d 294, 53 Cal.2d Court of Santa'Clara County (1942) 20 Cal.2d 236. 777, 128 P.2d 680. Prohibition = 10(2) When power of condemning agency to mainSupreme court may issue writ of prohibition tain action in eminent domain has been raised where it appears that superior court appointing in trial court by demurrer and jurisdictional receiver acted in excess of its jurisdiction be- challenge has been resolved in favor of condemcause another court first acquired exclusive ju- nor, jurisdictional issue may be raised by petirisdiction to make appointment. Slinack v. Su- tion for writ of prohibition. Kenneth Mebane perior Court in and for Tulare County (1932) Ranches v. Superior Court (App. '5 Dist. 1992) 216 Cal. 99, 13 P.2d 670. Prohibition 0= 10(2) 12 Cal.Rptr.2d 562, 10 Cal.App.4th 276, review = 10(2) Contractor's sureties,'being' sued by laborers denied. Prohibition and materialmen in actions transferred from The'superior court's jurisdiction over alleged one county to another, will not be granted writ concerted refusal to work engineered by union of prohibition against first county entertaining without first notifying employer arid federal mejurisdiction in actions by the laborers and mate- diation'and conciliation service of its intention, rialmen against the county, based on stop no- in violation of National Labor Relations Act (29 tice, on theory that same question was'involved U.S.C.A. 158), was preempted by national laand that jurisdiction was first acquired in the bor relations board in light of fact that no other action against the sureties, where one of the basis for employer's claim for relief appeared, stop notice actions which had not been trans- there was no showing whatsoever how scope of ferred to the second county was commenced action may have transcended or significantly prior to the commencement of actions against differed from relief sought before the board, and the sureties. McMorry v. Superior Court of preliminary injunction already issued by superiCalifornia in and for Sutter County (App. 3 Dist. or court clearly conflicted with decision of 1921) 54 Cal.App. 76, 201 P. 797. Prohibition board that no action against union was warrant@ = 10(2) ed. Service Emp. Intern. Union, Local 102, 512

1102 WRITS "OF REVIEW Note 46 Title 1 The court of appeal having held on applicaAFL-CIO v. Superior Court, Imperial County (App. 4 Dist.:l980) 169 Cal.Rptr. 494, 112 Cal. tion for writ of prohibition, restraining superior App:3d 712. Labor And Employment ^ court from proceeding further in action to contest will, that latter court's transfer of action to 1677(6) Prohibition is proper remedy to prevent court its probate jurisdiction after statutory time for from proceeding with action on ground'that it contest conferred no jurisdiction on it to prodoes'not have jurisdiction. J. A. Thompson & ceed with, matter, need not consider whether Sons, Inc. v. Superior Court for Los Angeles consolidation of action with probate proceeding County (App. 2 Dist. 1963) 30 Cal.Rptr. 471, to accomplish transfer was particularly authorized by law. Messer v. Superior Court of Ven215 Cal.App.2d719. Prohibition^ 10(1) tura County (App. 4 Dist. 1937) 23 Cal.App.2d To permit the issuance of prohibition, there 743, 73 P.2d 897. Prohibition = 28 need not be a lack of jurisdiction over the subject matter or parties in a fundamental sense 45. Inferior courts, lack of jurisdiction but only that there be a want or excess of power During time appellant was seeking hearing in of the court as defined by 'the statute or by the supreme court, after district court of appeal had rules developed under the doctrine of stare deci- refused to issue writ of prohibition, trial court sis. City of Los Angeles v. Superior Court of was not divested of jurisdiction. Citizens Nat. Los Angeles County (1959) 51 Cal.2d 423,:333 Trust & Sav: Bank of Los Angeles v, Scott (App. P.2d745. Prohibition @ = 10(1) 2 Dist. 1963) 35 Cal.Rptr.t584, 222 Cal.App.2d Filing of notice of appeal by great aunt of 718. Prohibition < 3 = 34 minor from order revoking her letters of guardShowing of petitioners did not entitle them to ianship, appointing aunt of minor as guardian, writ of prohibition restraining trial court from and ordering that custody of minor be given to proceeding with trial on ground that it lacked aunt, stayed all proceedings in superior court jurisdiction of subject-matter because issue had for enforcement of order until final determina- not been joined. Modern Iron Works v. Superition of appeal, and therefore superior court did or Court of California in and for Los Angeles not have jurisdiction to proceed in habeas cor- County (App. 2 Dist. 1932) 124 Cal.App. 126, 12 pus proceeding by aunt to obtain custody of P.2d 74. Prohibition = > 10(1) minor, and peremptory writ of prohibition Where the trial court continued the hearing would issue to restrain superior court from taking any further proceedings in connection with on a temporary restraining order;beyond the habeas corpus proceeding. Stogsdill v. Superi- time fixed by statute, it was divested of jurisdicor Court, Los Angeles County (App. 1955) 131 tion to take any action on the date fined other Cal.App.2d 78, 280 P.2d 148. Courts = 207.5 than to dissolve the order issued, and a writ of prohibition to prevent it from taking action on Supreme court was without jurisdiction to such restraining order will be,granted. Kelsey entertain prohibition proceeding, where district v. Superior Court of San Diego County (App. court of appeal had jurisdiction over subject- 1919) 40 Cal.App. 229, 180 P. 662. Prohibition matter of such proceeding at date of commence- = > 10(2) ment of proceeding. Fitts v. Superior Court in Prohibition lies to prevent court from proand for Los Angeles County (1936) 6 Cal.2d 247, ceeding with trial of action where jurisdiction is 57P.2d518. Prohibition < 3 = > 10(1). . ., wanting. Coleman v. Superior Court of CalavWrit of prohibition is available, only for pur- eras County (App. 1933) 135 Cal.App. 74, 26 pose, of halting attempted exercise of jurisdic- P.2d673. Prohibitions 10(1) tion not possessed by respondent sought to be Writ of prohibition will not lie to prescribe restrained. Derrer v. Superior Court in and for what court shall consider in case Los Angeles County (App. 2 Dist. 1933) 129 withinsubordinate its jurisdiction. Felton Water Co. v. SuCaLApp. 154, 18 P.2d 371. Prohibition = perior Court of Santa Cruz County (App. 1 Dist. 10(1) 1927) 82 Cal.App. 382, 256 P. 255. Prohibition A writ of prohibition did lie to .prevent a ^ 5 ( 1 ) " "' superior court from proceeding in a land contest case of which it had no jurisdiction. Cray- 46. Personal jurisdiction, lack of juriscroft v. Superior Court of Kern County (App. diction 1912) 18 Cal.App. 781, 124 P. 1042. ProhibiWhere service of summons on citizen of Mexition =,10(2) co was void, prohibition proceeding -by citizen Want of jurisdiction is an insufficient ground of Mexico to restrain superior court from profor the issuance of a writ of prohibition if there ceeding further in action against him was the be a plain, speedy, and adequate remedy at law. appropriate.remedy. Gerard v. Superior Court Burge v. Justices' Court of City & County of San in and for Los Angeles County (App. 1949) 91 Francisco'(App. 1909) 11 Cal.App. 213, 104 P. Cal.App.2d 549, 205 P.2d 109. Prohibition &=> 10(2) 581. Prohibition < S = > 3(1) 513

1102 SPECIAL PROCEEDINGS Note .46 Part 3 Objection that court had no jurisdiction of Where a father brought habeas corpus for persons of defendant executrixes in their indi- custody of minor, child while mother and child vidual as well as in their representative capacity were at liberty on bail pending determination of in action for declaratory relief and for specific immigration proceedings, and mother prayed performance-of alleged agreement by testatrix writ of prohibition against prosecution of habeto execute renewal lease, was not jurisdictional, as corpus proceeding, on ground-that she was and alleged error in refusing to dismiss execu- immune from service of process of state court, trixes as defendants in their individual capacity, since plea of immunity did not deprive superior if error, was error in exercise of jurisdiction not court of jurisdiction, but merely .'furnished reviewable on prohibition. Wright v. Superior ground for abatement if not waived, prohibition Court in and for City and County of San Fran- would not lie. Cooke v. Superior Court of City cisco (App. 1 Dist. 1948) 85 Cal.App.2d 151, -192 and County of San Francisco (App. 1925) 73 Cal.App. 744, 239 P. 381. Prohibition .= 10(2) P.2d511. Prohibition^ 10(2) Jurisdiction of a justice court over the person A writ of prohibition is the proper method of of a defendant who defaults may be attacked by restraining a court/which is exceeding its juris- prohibition. American Law Book Co. v. Superidiction by improperly assuming jurisdiction or Court in and Santa Clara County (1912) over persons not served with process as re- 164 Cal. 327, 128for P. 921. Justices Of The Peace quired by law. Berger v. Superior Court in and = 147(3) for Yuba County (App. 3 Dist. 1947) 79 Cal. App.2d425, 179P.2d600. Prohibition = 10(1) 47. Necessity for objection, lack of jurisdiction In divorce action by wife, allowance of $10,000 attorney's fees and $2,000 for costs, out Ordinarily, a reviewing court will .not grant of husband's property worth $17,500 held by a -prohibition until an objection to jurisdiction has receiver, was seemingly unconscionable, but been made and .overruled in lower court, since could not be reviewed in proceeding for writ of it is assumed that any valid objection promptly prohibition to prevent court from" taking further brought to attention of that court will prevail action in the divorce action until court obtained and that writ will.be unnecessary. Schaeffer v. jurisdiction over the petitioner's person. Nel- Municipal Court, Santa-Barbara-Goleta Judicial son" v. Superior Court in and for Riverside Dist., Santa Barbara County (1968) 67 Cal.Rptr. County (App. 1946) 75 Cal.App.2d 372, 171 P.2d 479, 260 Cal.App.2d 819; Sayegh v. Superior 52. Prohibition < 3 = 28 Court of.Los Angeles County (1955) 285 P.2d Prohibition cannot issue to stay trial because 267, 44Cal.2d814. Prohibition would not be issued to stay the of procedural defect of parties unless the defect is jurisdictional. Bank' of California Nat. Ass'n hand of federal district courtin libel proceeding v. Superior Court in and for City and County of brought against s;hip though petitioner secured San Francisco (1940) 16 Cal.2d 516, 106 P.2d judgments in municipal court and attempted to levy an attachment on the ship to satisfy the 879. Prohibition = > 10(2) where petitioner did not' object to Defendants, not regularly served with sum: judgments, of district court at the outset.'and it mons, nor otherwise personally served with no- jurisdiction that petitioner had other adequate tice to appear, and not appearing in state's appeared remedies. v: United States District action to cancel their registrations as voters, for Court, C.A.9 Barker (Cal.)1950, 185 F.2d 582. Prohibifraud, were entitled to peremptory' writ of pro- tion < 3 = 3(3); Prohibition @ = > 17 hibition, restraining superior court from enterr Ordinarily, claim of excess or lack of jurisdicing any order adjudicating their status or affecting their rights. Pierce v. Superior-Court in tion should be called to attention of inferior and for Los Angeles County (1934) 1 Cal.2d 759, tribunal as condition precedent to application for writ of prohibition, unless complaint fails on 37P.2d460. Prohibition = 10(2) its face to state cause of action, but such is'not Defendant, not served in divorce suit, is not essential to jurisdiction of district court of apprecluded from seeking relief by prohibition peal to grant writ. City Council of City of Santa from orders entered therein on theory that he Monica v. Superior Court of Los Angeles Councomes with unclean hands. Chaplin v. Superi- ty (App. 2 Dist. 1962) 21 Cal.Rptr. 896, 204 or Court in and for Los Angeles County (App. 2 CaI.App.2d 68. Prohibition < 3 = 17 Dist. 1927) 81 Cal.App. 367, 253 P. 954. Equity A trial court's jurisdiction must be challenged 3^65(1) in that court by demurrer, motion, plea, or Prohibition will lie, where lack of jurisdiction other objection of some kind, so that court may is as to the person. Westinghouse Electric & preliminarily decide .whether it has jurisdiction Mfg. Co. v. Justices' Court of-.Corcoran Tp. in to proceed, before remedy of prohibition is and for Kings County (App. 2 Dist. 1926) 79 available. Western Surgical Supply Co. v. AfCal.App. 759, 250 P. 1104. Prohibition "3= ..fleck (App. 3 Dist. 1952) 110 CaI.App.2d 388, 10(1) 242P.2d929. Prohibition = > 17 514

1102 WRITS OF REVIEW H ' Note 48 Title 1 When lack of jurisdiction is' apparent on,face An appellate court will not issue a- writ of prohibition to lower court until objection: to of proceeding in lower court, preliminary objecsuch court's action or anticipated action has tion is not necessary. before making application been made to and overruled by it, unless its lack for prohibition. Fueller v. Justice's Court, of of jurisdiction is apparent on face of record; it Encinitas Tp., San Diego County (App. 4 Dist. has persisted in course of action in manner 1933) 134 Cal.ApV- 305, 25 P.2d 248. Prohibiindicating that objection would be useless, or tion = > 17 there was no opportunity to interpose objection. Where defendant's demurrer on ground of Hanrahan v. Superior Court in and for Merced lack of jurisdiction was overruled, no further County (App. 3. Dist. 1947) 81 Cal.App.2d 432, objection was necessary before applying for writ 184P.2dl57. Prohibition^ 17 of prohibition. Goodyear Tire & Rubber Co. v. Before remedy by prohibition is available it is Hanby (App. 2 Dist. 1931) 111 Cal.App. 382, 3 = > 17 necessary to challenge jurisdiction of trial court 295 P. 562. Prohibition < Defendant, who was not served and did not in that court by demurrer, motion, plea or other objection, and unless a party can show that a appear, may bring prohibition to obtain relief lower tribunal, after first determining that it has from court's order without making objection in jurisdiction, is proceeding to exercise it, there is lower court. Chaplin v. Superior Court in and nothing for a higher court to prohibit. Rescue for Los Angeles County (App. 2 Dist. 1927) 81 = > 17 Army v. Municipal Court of- City of Los Angeles Cal.App. 367, 253 P. 954. Prohibition (1946) 28 Cal.2d 460, 171 P.2d 8, appeal disDefendant may bring original prohibition in. missed 67 S.Ct. ,1409, 331 U.S. 549, 91 L.Ed. appellate court, without objection in trial court, 1666. Prohibition < = 17 where it conclusively, appears that application Where trial court has decided in favor of its there would'be denied. Chaplin v. Superior own jurisdiction and is purporting to exercise it, Court in and for Los Angeles'County (App. 2 a higher court will1 in an appropriate case re- Dist. 1927) 8rCal.App. 367, 253 P. 954. Prohistrain lower court from acting in excess of juris- bition e= 17 Objections to trial court proceeding must be diction. Rescue .Army v. Municipal Court of City of Los,Angeles (1946) 28 Cal.2d 460, 171 presented to it before writ of prohibition against P.2d 8, appeal dismissed 67 S.Ct. 1409, 331 its proceeding, may be sought. Grinbaum v. U.S. 549, 91 L.Ed.' 1666. Prohibition < = = 17 Superior Court of City and County of San Francisco (1922) 189 Cal. 741, 209 P. 1005. ProhiA petition for writ of prohibition should'affir- bition <='17 -, matively allege that challenge to jurisdiction On an application for prohibition to-prevent was raised in lower court. 'Rescue Army v. Municipal Court of; City of Los Angeles (1946) trial by the'superior court, where no judgment 28 Cal.2d 460, 171 P.2d 8, appeal dismissed. 67 had in fact been entered below, counsel's failure S.Ct. 1409, 331 U.S. 549, 91 L.Ed. 1666. Prohi- to call the court's attention thereto does not justify a refusal to enter the writ, where the bition = > 20 record affirmatively shows want of jurisdiction. Ordinarily, claim of excess or lack of jurisdic- Shriver v. Superior Court in and for Sonoma tion should be called to 'attention of inferior County (App. 3 Dist. 1920) 48 Cal.App. 576, 192 tribunal as a "condition .precedent1' to applica- P. 124. Prohibition'3='12 ' tion for writ" of prohibition; unless complaint fails on its face to state a cause of action, but 48. Excess of jurisdictionIn general this is'not essential to'jurisdiction of court of Generally, any acts which exceed the defined appeal to grant writ, and the rule is not invoked power of a court in any instant, whether that where the plea would have been rejected by power be defined by constitutional'provision, lower court or entire proceedings involved-low- express statutory declaration, or rules develer court's jurisdiction to enjoin an allegedly oped :by the courts and followed under the doclawful enterprise. Monterey Club v. Superior trine of stare decisis, are in excess of'jurisdicCourt of Los Angeles (App. 1941) 48 Cal.App.2d tion, insofar as that term is used to indicate that 131, 119 P.2d'349. Courts. = 207.5; Prohibi- those acts may be restrained by prohibition or tion = > 17 annulled on certiorari. Los Angeles County ..v. Where club was not made a party to proceed- Superior Court for Los Angeles County (1967) ings..for injunction against one operating gam- 62 Cal.Rptr. 435,. 253 A.C.A. 754; Housing Aubling tables on club's premises pursuant to con- thority of City of Eureka v. .Superior Court in tract with club, and thus had no opportunity to and for Humboldt County (1950) 219 P.2d 457, object on jurisdictional grounds, failure to make 35 Cal.2d 550. such objection did not preclude relief by prohiProhibition restrains acts in excess of jurisdic? bition. Monterey Club v. Superior Court of Los tion. Travelers Ins. Co. v. Superior Court'For Angeles (App. 1941) 48 Cal.App.2d 131, 119 Kern County (1977) 135 Cal.Rptr. 579, 65 Cal. App.3d 751; Cook v. Superior Court for San P.2d 349. Prohibition*^ 17 515

1102 SPECIAL PROCEEDINGS Note 48 Part' 3 Diego County (1971).97 Cal.Rptr. 189, !9 Cal. in so far as that term is used to indicate what App.3d 832; People v. Bucher (1959) 346 P.2d acts may be restrained by prohibition. City and 202, 175 Cal.App.2d 343. County of San Francisco v. Superior Court of Prohibition runs only against excess of juris- City and County of San Francisco (1959) 1 diction of court. Olympic Auditorium v. Supe- Cal.Rptr. 158, 53 Cal.2d 236, 347 P.2d 294. rior Court in and for Los Angeles County (1927) Prohibition = 10(1) 253 P. 944, 81 Cal.App. 283; Harris v. Superior A court acts in excess of its jurisdiction, as Court of Sacramento County (1921) 196 P. 895, that term is used in determining whether writ of 51 Cal.App. 15; In re Turner's Estate (1918) prohibition will'issue, if'it acts in violation of a 172 P. 759, 178 Cal. 95. statute defining its powers. Kennaley v. SuperiActs which exceed the defined'; power of a or Court, County of San Mateo (1954) 43 Cal.2d court in any instance, whether that power be 512, 275 P.2d 1. Prohibitions 10(1) defined by constitutional provision, express statA'writ of prohibition may issue, if there is no utory declaration, or rules developed by the other adequate remedy and the lower court is courts and followed under the doctrine of stare proceeding in excess of its jurisdiction. Kennadecisis, are acts in "excess of jurisdiction." ley v. Superior Court, County of San Mateo Wozniak v. Lucutz (App. 2 Dist. 2002) 126 Call (1954) 43 Cal.2d 512, 275 P.2d 1. Prohibition Rptr.2d 310, 102 CaI.App.4th 1031. Courts = =3(1); Prohibition = 10(1) 40 One of the essentials to the issuanceof a writ Act is "in excess" of jurisdiction, such that of prohibition is that the party against whom it prohibition will lie, if act exceeds defined power is directed is threatening to perform an act in of court or other tribunal in any instance, excess of its jurisdiction. -Blache v. Superior whether that power, be defined by constitutional Court in and for City and County of San Franprovisions, express statutory declaration, or cisco (App. 1 Dist. 1939) 35 Cal.App.2d 740, 96 rules developed by courts and ^followed under P.2d970. Prohibition = 10(1) doctrine of stare decisis. Agricultural Labor Prohibition lies only when a court, board, or Relations^Bd. v. Superior Court (App. 6 Dist. tribunal proposes to act in excess of its jurisdic1994) 34 CaI.Rptr.2d 546, 29 Cal.App.4th 688, tion, and mere error does not warrant issuance. rehearing denied. Prohibition3' 10(1) Nider v. Homan (App. 1939) 32 Cal.App.2d.21, A writ of prohibition with respect to a local 89 P.2d 135. Prohibition = 10(1); Prohibition court rule or policy respecting prehearing medi- <S=> 11 ation of child custody and visitation disputes in Prohibition lies to a court only to determine marital dissolution proceedings would lie if the infirmities in the policy reflected an excess of whether it has acted in excess of its jurisdiction. jurisdiction, but since enforcement of the policy Western Meat Co..y Superior Court of Sacrawould be reversible error, but not for want of mento County (App. 1908) 9 Cal.App. 538, 99 P. jurisdiction, the appropriate remedy is a writ of 976. Prohibition * 9 mandate. McLaughlin v. Superior Court for Inferior courts, excess of jurisdiction San Mateo County (App. 1 Dist. 1983) 189 Cal. 49. Rptr. 479, 140 Cal.App.3d 473. Mandamus = A writ of prohibition will not issue where the 29; Prohibition @ = 10(2) lower tribunal .is not proceeding without. or..in If court acts without or in excess of its juris- excess of its jurisdiction. Davis v. Superior diction prohibition is the proper remedy to ar- Court in and for Los Angeles County (1950) 213 rest the proceedings of the court. Los Angeles P.2d 527, 95 Cal.App.2d 586; Rausch v. SuperiCounty v. Superior;- Court for Los Angeles Coun- or Court in and for Los Angeles County (1940) ty (App. 2 Dist. 1967) 62 Cal.Rptr. 435, 253 105 P.2d 627, 40 Cal.App.2d 707;" Raine v. Lawlor (1905) 82,P. 688,. 1 Cal.App. 483. Cal.App.2d 670. Prohibition < S = 10(1) The writ will issue only in cases of usurpation Trial of an action which involves determination of title to real property in another state is of power or jurisdiction by an inferior court. beyond jurisdiction of Californiasuperior court Broder v. Superior Court of Mono County and prohibition will lie to prevent trial thereof. (1894) 37 P. 191/103 Cal. 124; Coker v. SuperiRiver Farms, Inc. v. Superior Court of San or Court of Colusa County (1881) 58 Cal. 177, 8 Bernardino County (App. 4 Dist. 1967) 60 Cal. P.C.LJ. 264. Rptr. 665, 252 Cal.App.2d 604. Courts = > 18; Writ of1 prohibition directed against superior Prohibition = > 10(2) court will not be granted in the absence of a Generally, any acts which exceed the defined showing that the superior court is proceeding in power of a court in any instance, whether that excess of its lawful jurisdiction. McMorry v. power be defined by constitutional provision, Superior Court of California in and .for Sutter expressed statutory declaration or rules devel- County (1921) 201 P. 797, 54 CaLApp. 76; oped by courts and followed under the doctrine Rihdge Co. v. Superior Court of Los Angeles of.stare decisis, are in excess of "jurisdiction," County (Sup.1919) 182 P. 273. 516

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.'.1102 Note 50 tion that ALRB's scheduled hearing on issue of derivative liability would deny employer due process; ALRB had jurisdiction to resolve de,rivative liability issue in first instance, employer had right to appellate review, and, thus, any controversy as to what process was due employer in derivative liability proceedings was to be resolved in one of those two forums, rather than in superior court. Agricultural Labor Relations Bd. v. Superior Court (App. 6 Dist. 1994) 34 Cal.Rptr.2d 546, 29 Cal.App.4th 688, rehearing denied. Prohibition = 3(1) 51. Waiver, excess of jurisdiction The failure to object in superior court to appropriateness of writs of certiorari and prohibition to review action of board of dental examiners in revoking practitioners' licenses was not a waiver of right to object on appeal, since if that were the case, jurisdiction could' be conferred by the parties,1 and that cannot be done. Jacobs v. Board of Dental Examiners (App. 1 Dist. 1938) 24 Cal.App.2d 359, 75 P.2d 96. Appeal And Error => 183; Certiorari = 70(2) III. GROUNDS FOR RELIEF Subdivision Index Admissibility of Evidence ' 107 Anticipated grounds 87 Appeals 123 Arbitration, judgments or orders 118 Change of venue, judgments or orders 122 Conflict with legislative functions 82 Constitutionality or validity of statute or ordinance 83-86 In general 83 Criminal proceedings 84 Eminent domain 85 Taxation proceedings 86 Construction and application 81 Contempt 88 '*' Criminal proceedings, constitutionality or validity of statute or ordinance 84 Criminal prosecutions 89-100 In general 89 Invalid'orders 95 Jeopardy 98 Jury selection 94 Juvenile proceedings 91 Notice of right to counsel 93 Prior acquittal 99 Probable cause 92 Procedural errors generally 97 Proceedings before grand jury 90 Right to transcript 96 Violation of speedy trial rights 100 Discovery, judgments or orders 119 Eminent domain, constitutionality or validity of statute or ordinance 85 Errors of law 105 Evidence, admissibility of J 07 Evidence, generally 106 51

SPECIAL PROCEEDINGS Part 3 Final judgments or orders 115 Invalid orders, criminal prosecutions 95 Jeopardy, criminal prosecutions 98 Judgments or orders 114-122 In general 114 Arbitration .118 Change of venue 122 Discovery 119 Final judgments or orders 115 Nonappealable judgments or orders 116 Order for inspection 120 Subpoenas 121 Void judgments or orders 117 Jury selection, criminal prosecutions 94 Jury trial 104 Juvenile proceedings, criminal prosecutions ,91 ' Lack of prosecution 101 Nonappealable judgments or orders 116 Notice of right to counsel, criminal prosecutions 93 Order for inspection, judgments or orders 120 Parties 110 Pendency of other actions 102 Pleadings 111 Prior acquittal, criminal prosecutions 99 Probable cause, criminal prosecutions 92 Procedural errors 108 Procedural errors generally, criminal prosecutions 97 Proceedings before grand jury, criminal!prosecutions 90 Record on review 113 Review, record on 113 Review/ standard of 112 Right to transcript, criminal prosecutions 96 Sovereign immunity 103 Standard of review 112 Subpoenas, judgments or orders 121 Taxation proceedings, constitutionality or validity of statute or ordinance 86 Venue 109 Violation of speedy trial rights, criminal prosecutions 100 Void judgments or orders 117 81. Construction and application, grounds for relief Prohibition is a proper remedy when rule requiring exhaustion of administrative remedy before resort to a court is not enforced by a trial court. City of Los Angeles v. Superior Court for Los Angeles County (App. 2 Dist. 1966) 54 Cal. Rptr. 442, 246 Cal.App.2d 73. Prohibition 10(1) Alleged fact that a zoning ordinance of a municipality was an interim ordinance intended to hold property in status quo under a period of study necessary to the ultimate determination of the city's master zoning plan did not give the city power to prevent by prohibition a school

1102 Note 84 83. Constitutionality or validity of statute or ordinance, grounds for reliefIn general A court'may issue a writ of prohibition where the'trial court has determined that it has jurisdiction of the' matter,' that defendant does not have available a plain, speedy and adequate remedy of law, and 'the constitutionality of the questioned ordinance raises a sufficiently vital question. Chambers v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (App. 1 Dist. 1977) 135 Cal.Rptr. 695, 65 Cal.App.3d 904. Prohibition @ = >1 Where'there is no other adequate remedy, as by appeal, the constitutionality of a statute or ordinance may 'be -tested ^by -prohibition on ground that "invalidity of the legislation goes to the jurisdiction of the court to proceed to try the case. Melancon v. Superior'Court In and For Los Angeles County (1954) 42 Cal.2d*698, 268 P.2d 1050. Prohibition^ 10(2) A court will be restrained in prohibition from taking further proceedings iri a civil suit in which the cause of action was created by a void statute. Lockheed Aircraft1 Corp. v. Superior 82. Conflict with legislative functions, Court of-Los Angeles County (1946) 28 Cal.2d grounds for relief 481, 171 P.2d21.' Prohibition <&> 9 Where claim of legislative immunity was Prohibition is not unavailable as remedy to made by members of legislature in trial court test constitutionality of statute or ordinance on and denied, writ of prohibition restraining trial ground that application of theory that constitucourt from proceeding against them in civil tionality goes to jurisdiction might render otherlawsuit was proper remedy. Harrher v. Superi- wise final judgments subject to collateral attack. or Court In and For Sacramento County (App. 3 'Rescue Army v. Municipal-Court of City of Los Dist. 1969) 79 Cal.Rptr. 855, 275 Cal.App.2d Angeles (1946) 28 Cal.2d 460, 171'P.2d 8, ap345. Prohibition *= 10(2) peal dismissed 67 S.Ct. !1409, 331 U.S. 549, 91 Where demurrer to complaint charging as- L.Ed. 1666. Judgment = 489 sault and battery raised question of defendant's The constitutionality of a statute or ordinance legislative immunity, and demurrer was over- may be tested by prohibition on ground that ruled, prohibition was an appropriate remedy to invalidity of legislation goes to jurisdiction of prevent,subjection of defendant to harassment court to proceed to'try case. Rescue Army v. and expense of defending himself in trial in civil Municipal Court of City of Los Angeles (1946) proceeding. Allen v. Superior Court In and For 28 Cal.2d 460, 171 P,2d?8, appeal'dismissed 67 'San Diego County (App. 1959) 171 Cal.App.2d S.Ct. 1409, 331'U.S. 549, 91 L;Ed. 1666. Prohi444, 340 P.2d 1030. ^Prohibition = > 5(3) bition < 3 = > 10(1) Prohibition was appropriate remedy to reAlleged unconstitutionality of section of act strain superior court from enjoining board of was not ground for writ of prohibition; trial supervisors of county from certifying to the .leg- court not being thereby deprived of jurisdiction islature a proposed freeholders' charter adopted and remedy being afforded by appeal. Bray v. by the voters of the county, where action of Superior Court, in and for Siskiyou County superior court was an interference with the (App. 3 Dist. 1928) 92 Cal.App. 428, 268 P. legislative functions of the board of supervisors. 1081. Prohibition @ = > 3(2) Santa Clara County v. Superior Court in and for Santa Clara County (1949) 33 Cal.2d 552, 203 84. Criminal proceedings, constitutionalP.2d 1. Prohibition < = 10(2) ity or validity of statute or ordinance, grounds for relief The writ of prohibition ought not to issue to arrest the:progress of any legislation pending in A petition for a writ of prohibition is a proper a board authorized by the laws to legislate with procedural means by which to challenge as unrespect to matters of public interest: Spring constitutional on its face a statute or ordinance Val. Waterworks v. City and County of San under which criminal charges are being proseFrancisco (1877) 52 Cal. 111. Prohibition < 3 = cuted. Chambers v. Municipal Court for Oakland-Piedmont Judicial'JJist., Alameda County 6(1) 5 19

WRITS OF REVIEW Title 1 'district from exercising its right of eminent domain in acquiring a school site. Town of Atherton v. Superior Court In and For San Mateo County (App. 1958) 159 Cal.App.2d 417, 324 P.2d 328. Prohibition = 9 "Prohibition is a proper remedy to restrain a board of supervisors from further proceeding in connection with purported reclamation district assessment lists filed by commissioners of assessment, and based on a reclamation plan which had been rescinded and revoked by the district trustees and superseded by a new or amendatory one, notwithstanding Pol.C. 3462, authorizing an action to correct, modify, or annul the assessment. Reclamation Dist. No. 108 v. Ash (App. 3 Dist. 1922) 58 Cal.'App. 238, 208 P. 394. Prohibition < 3 = 3(1) Where a court undertakes, pending an action against a corporation, to displace the corporate management by a receiver and the court is without statutory authority, prohibition is the proper remedy. Fischer v. Superior Court of City and' County of San Francisco (1895) 110 Cal. 129, 42 P. 561. Prohibition = 10(2)

1102 SPECIAL PROCEEDINGS Note. 84 Part 3 (1977) 135 Cal.Rptr. 695, !65 Cal.App.3d 904; fire district ordinance and was about to proceed Dillon v. Municipal Court for Monterey-Carmel to exercise such jurisdiction, and defendant did Judicial Dist. of Monterey County (1971) 94 not have available to him a plain, speedy, and Cal.Rptr. 777, 484 P.2d 945, 4 Cal.3d 860. adequate remedy at law, and contention of deProhibition is a proper remedy to restrain a fendant that ordinance was unconstitutional court from a proceeding with a trial where it is raised a sufficiently vital question to merit deciconceded that trial court threatens to, and will sion, the case was a proper one for remedy of unless prohibited, proceed with trial of defen- writ of prohibition in superior court. Moore v. dant on charge of violating municipal code sec- Municipal Court of Salinas Judicial Dist, Montion which under law does not state public terey County (App. 1959) 170 Cal.App.2d 548, offense. Mier v. Municipal Court of Culver 339 P.2d 196. Prohibition = 10(3) Judicial Dist. (1963) 27 Cal.Rptr. 602, 211 Cal. Where petitioners were charged in municipal App.2d 470; Whitney v. Municipal Court of City court with violation of sections of municipal and County of San Francisco (1962) 27 Cal. code, and their demurrer, challenging constituRptr. '16, 377 P.2d 80, 58 Cal.2d 907. tionality of sections, was overruled, refusal of Where criminal statute or ordinance sought to superior court to grant writ of prohibition: rebe enforced is alleged to be unconstitutional on straining municipal court from trying proceedits face, petition for writ of prohibition is appro- ing was not an abuse of discretion in absence of priate method of seeking relief. Morris v. Mu- showing that delay caused by trial would prejunicipal Court for San Jose-Milpitas Judicial dice petitioners' rights, or that they would suffer Dist. of Santa Clara County (1982) 186 Cal. hardship other than expense ordinarily incident Rptr. 494,32 Cal.3d 553, 652 P.2d 51. Prohibi- to trial'and appeal especially in view of fact that questions of fact might be involved and 'that tion^ 9 of unconstitutionality of one section of Prohibition was available-to restrain justice defense ordinance might be available as to some of court from proceeding in a criminal action on charges and not as to others. Dickenson v. ground of unconstitutionality of county ordinance. Chavez v. Municipal Court of Visalia Municipal Court of San Diego Judicial Dist., Judicial Dist. (App. 5 Dist. 1967) 64 Cal.Rptr. San Diego County (App. 1958) 162 Cal.App.2d 76, 256 Cal.App.2d 149. Prohibition < S = 10(3) 85, 328 P.2d 32. Prohibition = 5(4) Prohibition would <not lie.to restrain a jusProhibition was a proper remedy to challenge tice's court of the city of Berkeley from proceedconstitutionality of a statute under which plain- ing with the trial of petitioner for violation of an tiff was being prosecuted. Canon v. Justice ordinance that city committed within the Court for Lake Valley Jud. Dist. of El Dorado boundaries of of the city, where writ was sought County (1964) 39 Cal.Rptr. 228, 61 Cal.2d 446, on ground that court was without jurisdiction 393 P.2d 428. Prohibition < 3 = >9 because complaint failed to state a public ofContentions of accused that provision of fense and because portion of ordinance allegedElec.C. 12047 under which criminal com- ly violated was unconstitutional, since court had plaint had been filed against him is vague and jurisdiction to proceed with the trial regardless unreasonably infringes on free speech-free press of the grounds set forth. Fels v. Justice's Court guarantees of federal and state constitutions of City of Berkeley (App. 1 Dist. 1938) 28 Cal. might appropriately be considered in prohibi- App.2d 739, 83 P.2d 721. Prohibition = > 10(3) tion proceeding instituted by accused to prevent Prohibition was proper remedy to prevent justice court from trying him for violating the prosecution under unconstitutional ordinance. provision. Canon v. Justice Court for Lake Val- Lambert v. Municipal Court of Los Angeles ley Judicial Dist., County of El Dorado (App. County (1960) 3 Cal.Rptr. 168, 349 P.2d 984, 53 1964) 36 Cal.Rptr. 311, hearing granted, vacat- Cal.2d 690. Certiorari deniedSl S.Ct. 79, 364 ed 39 Cal.Rptr. 228, 61*Cal.2d 446, 393 P.2d U.S.-847, 5 L.Ed.2d 71; Alves v. Justice Court 428. of Chico Judicial Dist., Butte County (App. Contention that statute which petitioner was 1957) 148 Cal.App.2d 419, 306 P.2d 601. found, in municipal court, guilty of having violated, was unconstitutional could and should 85. Eminent domain, constitutionality or have been raised upon appeal from judgment of validity of statute or ordinance, grounds municipal court and prohibition would not lie for relief to.prohibit court from takingr steps to enforce Although department of public works was judgment upon contention that statute was un- precluded from appealing from' interlocutory constitutional. Schoenfeldt v. Municipal Court ruling in eminent domain proceeding .that proof City and County of .San Francisco (App. 1 posed taking was not for public use, department Dist. 1960) 9 Cal.Rptr."?12, 187 Cal.App.2d 748. could test validity of Str. & H.C. 104.1 (reProhibition <&* 3(4) ' 3 pealed; see, now, 1240.410 et seq.) that perWhere municipal court determined that it had mitted department to condemn whole -of tract jurisdiction of- prosecution for violation of rural where taking of portion would destroy value of 520

WRITS OF REVIEW Title 1 remainder by proceeding for extraordinary writ of prohibition or mandate. People ex rel. Dept. of Public Works v. Rodoni (App. 5 Dist. 1966) 52 Cal.Rptr. 857, 243 Cal.App.2d 11\. Mandamus =32; Prohibition^ 5(3) 86. Taxation proceedings, constitutionality or validity of statute or ordinance, grounds for relief A proceeding in prohibition seeking to restrain the superior court from enforcing a preliminary injunction in a taxpayer's suit to enjoin certification of a result of a referendum election would lie to test the validity of-the ordinance where there was no evidence presenting a substantial question of fact upon the material issues. City of Los Angeles v. Superior Court of Los Angeles County (1959) 51 Cal.2d 423, 333 P.2d745. Prohibition = 5(3)

87. Anticipated grounds, grounds for relief City and members of its board of supervisors, in seeking a writ of prohibition to restrain superior court from enforcing an order requiring the supervisors to attend depositions scheduled in connection with pending taxpayer action challenging salary standardization ordinance, made a premature request for relief by extraordinary writ, since no court had ordered the supervisors to answer improper questions relating to their Writ of prohibition would not lie in favor of reasons for voting for or against the ordinance, petitioner who contended that respondent since the superior court had only ordered'the court, which had jurisdiction to amend its recsupervisors to appear at depositions, and since ords so as to cause them to speak the truth, the challenged order fully preserved the super- threatened to correct judicial error#, since revisors' right to refuse to answer improperly viewing court would not assume that responintrusive questions. City and County of San dent court would exceed its jurisdiction, and if Francisco v. Superior Court of City andXounty it should, the petitioner would have an adequate of San Francisco (1975) 120 Cal.Rptr. 730, 13 remedy at law. Passow v. Superior Court of Cal.3d 933, 534 P.2d 426. Prohibition <3= 5(3) City and County of San Francisco (App. 1 Dist. On petition for writ of prohibition, court 1938) 25 Cal.App.2d 89, 76 P.2d 515. Prohibicould not rule on propriety of future hypotheti- tion = 3(1) cal order of undeterminable content based on The writ of prohibition will not issue to preshowing yet to be made of facts not yet in vent action on proceedings the birth of which existence. Kruly v. Superior Court for Los An- may be prophesied by imagination or hope. geles County (App. 2'Dist! 1963) 31 Cal.Rptr. Hall v. Superior Court in and for Imperial 122, 216"Cal.App.2d 589. Prohibition = > 28 County (App. 2 Dist. 1924) 70 Cal.App. 393, 233 Prohibition was not necessary to restrain a P. 80, affirmed on rehearing 245 P. 813, remunicipal court from vacating its order allow- versed 198 Cal. 373, 245 P. 814. Prohibition = ing an amendment increasing the demand* be- 1 yond its jurisdictional limit, and from proceedfor relief ing with a trial of the action, since the superior 88? Contempt, grounds court was not authorized to assume that the Prohibition was a: proper means of considermunicipal court .would not await a final deter- ing counsel's claims that court lacked'jurisdicmination of a petition for writ of review. Tho- tion to adjudicate him in contempt; habeas masian v. Superior Court In and For City and corpus or certiorari would also be proper. In County of San.Francisco (App. 1953) 122 Cal. re Charbonneau' (App. 2 Dist. 1974) 116 Cal. App.2d 322, 265 P.2d 165. Prohibition = > 27 Rptr. 153, 42 Cal.App.3d 505. Contempt = > 67; = > 528.1; Prohibition = 10(2) Where trial court, in divorce action wherein Habeas^ Corpus divorced wife sought to recover amounts due Where husband, granted divorce for wife's under divorce decree, appointed receiver to op- extreme cruelty, challenged superior court's juerate business owned by divorced husband and risdiction to issue order to show cause why he partners who had started separate action for should not be adjudged guilty of contempt in 52 1

1102 Note 88 dissolution of partnership, and ordered partners to show cause why receiver should not sell business, it could not be assumed that court would order sale of entire business if showing that partners owned some interest was made, that court would try issues raised by dissolution action, or that court would place burden on partners to prove exact extent of their interests in ,the business, and therefore, writ of prohibition commanding court to desist from further proceedings would not issue. Chanitz v. Superior Court In and For San Diego County (App. 1951) 105 Cal.App.2d 518, 233 P.2d 608. Prohibition < = 27 An application for writ of prohibition to restrain superior court from conducting hearing on order to show cause why petitioner should not be punished for contempt in failing to comply with certain provisions of property settlement agreement with his former wife must be denied pending continuance granted' by such court, where there is nothing to indicate what action it will take when petitioner's ^objections are presented to it, as district court of appeal will assume that former court's rulings will conform to law and facts shown at time of hearing. Heinecke v. Superior Court of Los Angeles County (App. 2 Dist. 1938) 27 Cal.App.2d'480, 81 P.2d 179. Prohibition ^ 9

1102 SPECIAL PROCEEDINGS Note 88 Part 3 failing to comply with order in'divorce decree exceeded its jurisdiction in any respect. Lange to make payments to wife for her support at v. Superior Court (App. 1909) II Cal.App. I, hearing on first citation for contempt and again 103 P. 908. at hearing on wife's motion, erroneously grantWhere a court, without jurisdiction, adjudges ed by court, to set aside dismissal of such cita- a person guilty of contempt for refusing to comtion, question of court's jurisdiction -to issue ply with its decree, but temporarily suspends another-such order was adequately drawn to the execution of the judgment, prohibition is the court's attention, so as to entitle husband to proper remedy to test the validity thereof. Coswrit of. prohibition restraining court from pro- by v. Superior Court of Los Angeles County ceeding further on last order without again pre- (1895) dlO Cal. 45, 42 P. 460. Prohibition = senting such question'to court. McLaughlin v. 10(2) Superior Court of State (App. 1954) 128 Cal. App.2d 62, 274 P.2d 745. Prohibition < 3 = 17 89. Criminal prosecutions, grounds for reliefIn general The pendency of equitable action attacking judgment and seeking to restrain enforcement On an application for prohibition to stop the thereof did not preclude issuance of writ of trial of an information for assault with intent to prohibition enjoining court from- taking further commit murder, the fact that the magistrate proceedings against petitioner for contempt for before whom the preliminary examination took violation of judgment. aHunter v. Superior place did not examine, on oath or otherwise, the Court of Riverside County (Ap*p. 4 Dist. 1939) prosecutor -or any other witness, and did not 36 Cal.App.2d 100, 97 P.2d 492. Prohibition = take- any depositions of any witnesses or of the 3(1) prosecutor, affords no ground for the relief Where order of confinement for contempt had asked, since the jurisdiction is not affected been signed by judge and filed with clerk' a writ thereby. Spect v. Superior Court of Colusa of prohibition prohibiting the contempt pro- County (1881) 59 Cal. 319, 8 P.C.LJ. 58; Murceedings was not a proper remedy since there phy v. Superior Court of Colusa County (1881) remained ho further judicial act to be per- 58 Cal. 520, 8 P.C.LJ. 175. formed by the court, although ministerial acts of prohibition was an appropriate remeby nonjudicial officers were yet to be performed dyWrit to restrain municipal court from complying by clerk delivering the order to sheriff and his with superior court order to vacate municipal execution of it. Ames v. Superior Court in and court's of defendant's motion to recuse for San Diego County (App. 4 Dist. 1938) 28 district denial attorney's, office. People v. Municipal Cal.App.2d 502, 82 P.2d 948. Prohibition < 3 = 13 Court for Sacramento County (App. 3 Dist. A writ of prohibition will be granted to re- 1979) 159 Cal.Rptr. 639, 98 Cal.App.3d 690. 3 = > 5(4) strain court from citing petitioner to show cause .Prohibition < in contempt proceeding if court is without jurisMandate or prohibition may be allowed bediction to adjudge petitioner guilty of contempt. fore -trial and on- the people's application to Miller v. Superior Court in and for Los Angeles rectify such excess of jurisdiction of the trial County (1937) 9 Cal.2d 733, 72P.2d.868. Pro- court because of misinterpretation of-a statute, hibition < 3 = 10(2) failure to follow a decision-by court of appeal Prohibition lies to prevent court from sen- directly in point or a ruling prohibited or unautencing petitioner for contempt in failing to thorized by statute or for an abuse of discretion answer questions, where excess of jurisdiction in vacating a guilty plea. People v. Municipal was shown. Schuster v. Superior Court in and Court for Central Judicial Dist. of Marin County for Los Angeles County (App. 2 Dist. 1929) 98 (App. 1 Dist. 1978) 149 Cal.Rptr. 30, 84 Cal. Cal.App. 619, 277 P. 509. Prohibition = > ' 10(2) App.3d 692. Mandamus = > 61; Prohibition = Writ of prohibition is available to prevent I0(3\ sentence for contempt, when manifest court will Prohibition will issue in a criminal case on a proceed notwithstanding lack of jurisdiction. showing of excess of jurisdiction. Castaneda v. Merritt v. Superior. Court of California in and Municipal Court In and For City and County of for Los Angeles County (App. 2 Dist. 1928) 93 San Francisco (App. 1 Dist. 1972) ,102 Cal.Rptr. CaLApp. 177, 269 P. 547. Prohibition 10(2) 230, 25 Cal.AppJd 588. Prohibition = 10(3) Further proceedings in contempt without juIn view of incidental nature of communicarisdiction will be stayed by prohibition, where it tion involved in presentation of "topless-botis manifest that otherwise court will proceed. tomless" entertainment in establishment where Pennell v. Superior Court in and for Los Ange- alcoholic beverages were sold and need for les County (App. 2 Dist. 1927) 87 Cal.App. 375, public regulation inherent in such activity, orig262 P. 48. Prohibition = 10(2) inal proceeding in court of appeal for, writ of Under this section, prohibition wilbnot lie to prohibition to restrain municipal court from restrain.a court from passing judgment of con- proceeding further in criminal actions against tempt where :>it did not appear that the court managing officer for operating business without 522

Proceedings before grand jury, criminal prosecutions, grounds for relief Prohibition will not lie to restrain superior court from proceeding with trial upon indictment upon ground there was no evidence before grand jury tending to show petitioner guilty of public offense. More-house v. Superior-Court in and for Los Angeles County (193%) 12 P.2d 133, 124 Cal.App. 38; Brobeck v. Superior Court of California in and for City and County of San Francisco (1907) 92 P. 646, 152 Cal. 289. Denial by trial court of motion challenging regularity of grand jury proceedings or a preliminary examination in'criminal case may.be reviewed by writ of prohibition. People v. Wariburton (App. 2 Dist. 1970) 86 Cal.Rptr. 894, 7 CaLApp.3d 815, certiorari denied 91 S.Ct. 587, 400 U.S.,1022, 27 L.Ed.2d 634. Prohibition < = > 5(4) " '"" '{ Writ of prohibition restraining court jfrom proceeding upon an indictment lies where indictment is not supported iby. evidence before grand.jury; however, where there is some supporting evidence courts will not inquire into its sufficiency and cause should be determined by a trial on the merits. Brooks v. Superior Court of Los Angeles "County (App. 2 Dist. 1966) 48 Cal. Rptr. 762, 239 Cal.App.2d'538. Indictment And Information = > 10.2(7); Prohibition'^ 9 On application for'writ of prohibition to restrain superior court'from proceeding with trial Where no meritorious point is made against under indictment for conspiracy, question of the-jurisdiction of the superior court, prohibi- accused's-guilt or innocence is not before sution to prevent criminal trial is not available to preme court, which cannot consider quantum of 'the petitioner. Whitney v. Superior Court of evidence necessary to 'sustain conviction, but 523

WRITS.OF REVIEW " Title'1 entertainment permit in violation of city ordinance, was not justified. Vinot Enterprises, Inc. v. City of PasadenaL(App. 2, Dist. 1972) 100 Cal.Rptr. 217, 23 Cal.App.3d 246. Prohibition fc"6(2) Where defendant was entitled :to be released from custody pending determination of petition for writ .of mandate by reason of Pen.C. 1538.5 requiring that if defendant's motion to suppress evidence is granted or people file petition for mandate, defendant shall be released, defendant could not defeat people's petition for writ, of prohibition staying trial pending "determination of writ of mandate on theory that to allow prohibition to issue, while failing to' release defendant1 except on bail, was violation1 of equal protection clause of Fourteenth .Amendment (U.S.C.A.Const. Amend. 14). People v. Superior Court for Santa Clara County (App. 1 Dist. 1970)'83 Cal.Rptr. 771, 3 Cal.App.3d.476. Prohibition^ 12 Although owner of cafe .may - have aided, counseled or 'procured another person to maliciously set fire to cafe, where owner was not physically present at scene of fire, he could- not be tried for murder because his alleged confederate negligently or accidently burned himself to death while setting fire to cafe and writ of prohibition to restrain. further proceedings in criminal prosecution for murder would lie. Woodruff v. Superior Court of Los Angeles County (App. 2 Dist. 1965)'47" Cal.Rptr. 291, 237 Cal.App.2d 749. Homicide = 570;' Prohibition => 5(4) Where prosecution was initiated, without lawful authority accused was entitled to writ of prohibition. Menveg v. Municipal Court of Los Angeles Judicial Dist. (App. 2 Dist. 1964) 38 Cal.Rptr. 232, 226 Cal.App.2d 569. Prohibition = 10(3) Although arrest accused stated to officers, who did * not have search warrant, that they could go ahead and look, when in effect he was asked if officers could "look for more narcotics in his home which was some distance away from place of arrest, where accused thereafter repeatedly attempted to lead officers away, from his home and, after those efforts failed, he was 'neither asked to nor did he express his consent -that search continue, accused did not freely and voluntarily consent' to search of 'his .home, search was illegal and accused was entitled, to writ of prohibition to prevent his trial. Castaneda.v. Superior Court of Los Angeles County (1963) 30 Cal.Rptr. ,1, 59 Cal.2d?439, 380 P.2d 641. Prohibition < 3 = > 11; Searches And Seizures = 181

1102 Note 90 Alameda County (1920) 182 Cal. 114, 187 P. 12. Prohibition < S = > 10(3) Though proceedings, under search warrant under which petitioner's premises were invaded were illegal,1 prohibition is not appropriate remedy for redress, act aalready having been completed. Bartollotti v. Police Court of City of Los Angeles (App. 1917) 35 Cal.App. 372, 170 P. 161. Prohibition = > 13 If a' court should refuse a new trial in a criminal prosecution and render judgment against defendant1 after the authorized time has passed,'the judgment would Be reversed on appeal, if an appeal should be taken; but, as the judgment would be rendered by a court having jurisdiction of the" subject-matter and of the person, it would not be void nor subject to collateral attack, and therefore, if the court is about to give judgment - after the-* proper time has' passed, it-will-not be acting without or in excess of its-jurisdiction, and prohibition is not maintainable under-this section. Rankin v. Superior Court of City and County of- San Francisco (1910) 157 Cal. 189, 106 P. 718. Prohibition e 10(3) 90.

 1102 SPECIAL PROCEEDINGS Note 90 Part 3 only question whether'grand jurors, as men of Cal.2d 514, 51 P.2d 66. Indictment And Inforordinary caution or prudence, 'could- conscien- mation < = > 10.1(2) tiously entertain reasonable suspicion that a Where defendant was indicted 'for willfully public offense, in which accused participated, and knowingly" refusing to perform his duty as was committed. Weber v. Superior Court in an election officer, as provided by Pen.C. 41 and for Los Angeles County (1950) 35 Cal.2d 68, (repealed; see, now Elec.C. 11502), he was 216P.2d871. Prohibition =28 not entided to a writ of prohibition to restrain The supreme court may not interfere with prosecution of such indictment on the ground grand jury's discretion in determining whether that he - had appeared before the grand jury evidence before them would warrant trial jury's under subpoena issued by the district attorney, conviction of accused, nor weigh evidence to and testified concerning such offense as a state's determine its sufficiency, in prohibition pro- witness; defendant being authorized by Pen.C. ceeding to restrain superior court from proceed- 1020, to present such matter as a complete ing with trial under indictment returned. Web- defense to a plea of not guilty. Rebstock v. er v. Superior Court in and for Los Angeles Superior Court of City and County of San FranCounty (1950) 35 Cal.id 68, 216 P.2d 871. Pro- cisco (1905) 146 Cal. 308, 80 P. 65. hibition = 28 Where defendant had been tried and convictUpon writ of prohibition, an indictment may ed on an indictment that was void, a writ of not be held to be invalid for mere irregularities prohibition willissue to prevent the trial judge in impaneling grand jury or in the proceedings from pronouncing sentence or further proceedleading to indictment. McFarland v. Superior ing in the case. Terrill v. Superior Court of Court in and for Merced County (App. 1 Dist. Santa Clara County (1899) 6 Cal.Unrep. 398, 60 1948) 88 Cal.App.2d 153, 198 P.2d 318. Prohi- P. 38, rehearing denied 6 Cal.Unrep. 417, 60 P. bition = > 11 516. Prohibition => 5(4) Participation of judge presiding over grand Under 1103 and this section declaring that jury in activities having to do with preliminary prohibition lies where there have been proceedinvestigations, employment of investigators, and ings "without or in excess" of jurisdiction, and publishing^ of attack upon person subsequently there "is not a plain, speedy, and adequate indicted by grand jury, which was handed to remedy in the ordinary course of law," the members of grand jury, was mere irregularity in court will be prohibited from proceeding with a proceedings leading to return of indictments trial under anihdic'tment found by a grand jury which were not invalidated thereby. Fitts v. completed by talesmen selected by an elisor Superior Court in and for Los Angeles' County instead of the sheriff. Bruner v. Superior Court (1935) 4 Cal.2d 514,.51 P.2d 66. Grand>Jury of City and County of San Francisco (1891) 92 =33 Cal. 239, 28 P. 341. Prohibition < 3 = 10(3) Misconduct of special counsel before grand Jury was mere irregularity in proceedings lead- 91. .. Juvenile proceedings, criminal proseing to return of indictments and insufficient to cutions, grounds for relief invalidate indictments and deprive court of juWhere juvenile court in which petition had risdiction to proceed thereunder. Fitts v. Supe- been filed alleging that 17-year-old minor had rior Court in and for Los Angeles County (1935) violated felony statutes did not-findthat minor 4 Cal.2d 514, 51 P.2d 66. Grand Jury < S = 34 was not amenable to the treatment of the juveAppearance of unauthorized and- ineligible nile court before .ordering that charges be reperson before grand jury in violation of statute, ferred to an adult court and tried .under the while jury was engaged solely in preliminary general law, juvenile's petitions for writ of mandetermination of whether appointment of spe- date vacating the order and writ prohibiting cial counsel was necessary, did not deprive criminal proceedings pending, determination of court of jurisdiction to proceed on indictment juvenile court proceedings would be granted. v. Superior Court In and For City returned by such grand jury. Fitts v. Superior M Court in and for Los Angeles County (1935) 4 and County of San Francisco (App. 1 Dist. 1969) Cal.2d 514,. 51 P.2d 66. Grand Jury 39 75 Cal.Rptr. 881, 270 Cal.App.2d 566. Prohibi^ = 61 Grand" jury which was selected from list tion? 10(3); Mandamus < which had not been ^prepared in compliance Probable cause, criminal prosecuwith statute, and which was impaneled by 92. tions,' grounds for relief judges who were prejudiced as to type of person to be selected and as to method of selection, and Prohibition is a proper means to test right of against person subsequently indicted, and who prosecution to proceed with trial of charge acted out of open court, in impanelment of jury, when validity of' information Is challenged on held de facto grand jury and indictments re- ground that defendant has been committed turned thereby were not void. Fitts v. Superior without reasonable, or. probable cause. Mardis Court in and for Los Angeles County (1935) 4 v. Superior Court In and* For San Bernardino 524

WRITS OF REVIEW Title 1 County (App. 4 Dist. 1963) 32 Cal.Rptr. 263, 218 Ca!.App.2d 70. Prohibition < 3 = 11 Where defendant has been committed without reasonable or probable cause, trial court should grant a motion "to set aside the information and if it does not do so a peremptory writ of prohibition will issue to prohibit further proceedings. Polos v. Superior Court In and For City and County of San Francisco (App. 1959) 175 Cal. App.2d 210, 345 P.2d 981'. Indictment And Information^ 137(5); Prohibition = 5(4) Notice of right to counsel, criminal prosecutions, grounds for relief Individual petitioner was not entitled to relief under petition filed on behalf of petitioners and all persons similarly situated to restrain justice court from hearing criminal cases unless and until justice court should- provide reasonable guarantees to inform accused of their right to counsel in accordance with law, and to assure appointment of counsel to all eligible persons who do not waive said right where petition contained no request for individual relief for the petitioner. Echavarria v. Justice Court, Fourth Judicial Dist., San Luis Obispo County (App, 2 Dist. 1971) 99 Cal.Rptr. 98, 21 Cal.App.3d 889. Prohibition < = > 30 Prohibition was .inappropriate remedy for alleged injury to class consisting of all persons accused of crimes in justice court resulting from justice court's alleged'failure to secure right'to counsel of accused persons. Echavarria v. Justice Court, Fourth Judicial Dist., San Luis Obispo County (App. 2 Dist. 1971) 99 Cal.Rptr. 98, 21 Cal.App.3d 889. Prohibition = 5(4) 93.

1102 Note 97 fendants to furnish prosecution with a list of defense alibi witnesses. Rodriguez v.Superior Court In and For City and County of San .Francisco (App. ,1 Dist. 1970) 88 Cal.Rptr. 154, 9 Cal.App.3d 493. Prohibition < 3 = 5(4) Right to transcript, criminal prosecutions, grounds for relief An appropriate remedy for indigent accused, whose first trial had ended with hung jury and who sought free transcript of such trial, was a writ of prohibition restraining'' superior court from retrying accused until he was furnished with free transcript. Shuford v. Superior Court of Orange County (1974) 114 Cal.Rptr. 601, 11 Cal.3d 903, 523 P.2d 641. Prohibition <3= 10(3) 96.

97. rrrr^- Procedural errors generally, criminal prosecutions, grounds for relief u Absent stipulation by parties, it is inappropriate for court to solicit partial verdicts or to inquire how jury stands numerically arid which way on lesser included offenses, and fact that 'trial court does so, alone, constitutes grounds for issuance of writ of prohibition. Sylvia v. Superior Court for Trinity County (App. 3; Dist. 1982) 180 Cal.Rptr. 251, .128 Cal.App.3d 309. Criminal Law 864; Prohibition < S = 9 Though, generally, a judgment of conviction is subject to collateral attack upon 'showing of want of due process though want of due process does not appear upon the face of the judgment roll where petitioner after having been "duly tried was arraigned for sentence and court inadvertently omitted alternative provision which was added on the same day when petitioner and counsel were in court room and before judg94. Jury selection; criminal prosecutions, ment was entered, writ of prohibition to regrounds for relief strain enforcement of judgment would be reWhere defendant who claimed to be "Jewish fused as an* exception to the general rule. man" sought writ of prohibition against use of McAllister v. Superior Court in and for Alameda jury panel in his trial on ground panel did not County (App. 1 Dist. 1938) 28 Cal.App.2d 160, contain sufficient people with Spanish names, 82 P.2d 462. Judgment < 3 = > 476; Prohibition < 3 = court's action in sustaining demurrer to petition 5(4) without leave to amend was proper. Ganz v. Trial for robbery can be ; halted .by writ; of Justice Court for Arvin-Lamont Judicial Dist. prohibition if had before trial as to sanity which (App. 5 Dist. 1969) 78 Cal.Rptr. 348, 273 Cal. had been ordered under Pen.C., 1368, in view App-2d 612. Prohibition < 3 = 25 of 1085 and this section. People v. Grace Petition for writ of prohibition against use of (App. 2 Dist...l926) 77 Cal.App. 752, 247 P. 585. S = 5(4) jury panel in particular criminal trial was faulty Prohibition < where it did:not allege that separate class had Error in that proceedings to remove an officer been discriminated against. Ganz v. Justice under Pen.C. 772 (repealed 1929), were entiCourt for Arvin-Lamont Judicial Dist. (App. 5 tled in the name of the accuser, instead of in the Dist. 1969) 78 Cal.Rptr. 348, 273 Cal.App.2d name of the people, being amendable, does not 612. Prohibition = 20 defeat jurisdiction so as to entitle the officer to a writ of prohibition, which under 1103 and 95. Invalid' orders, criminal prosecu- this section, lies only when the tribunal to tions, grounds for relief which it is addressed is about to act in excess of Defendants in a criminal prosecution were its jurisdiction. Cline v. Superior Court of Los entitled to a writ of prohibition preventing pro- Angeles County (1920) 184 Cal. 331, 193 P. 929. ceedings under an invalid order requiring de- Officers And Public. Employees = 74 525

1102 Note. 97 Whether the complaint on which petitioner was convicted of a misdemeanor before. a justice was insufficient to confer jurisdiction on the justice may be determined on a 'writ of prohibition to restrain the justice from carrying the sentence-imposed; pursuant to such conviction, into effect. Hogan v. Superior Court of Merced County (App. 1911) 16 Cal.App.-783, 117 P. 947. Prohibition = 10(3) 98.j

SPECIAL PROCEEDINGS Part 3 ty of San'Francisco (App. 1907) 5 Cal.App. 288, 90 P. 141. Prohibition = > 10(3) Prior acquittal, criminal prosecutions, grounds for relief Where defendants were threatened with second trial on charges of grand theft after an acquittal in prior trial which resulted in judgment of conviction for petty theft that had been reversed on appeal, defendants! .were entitled to writ of prohibition to restrain superior court from proceeding with trial of theft charge and writ of mandate to compel superior court to transfer cause ^to appropriate justice court for disposition of charge of petty theft. Gomez v. Superior Court In and For Mendocino County (1958) 50 Cal.2d 640, 328 P.2d 976. Mandamus = 61; Prohibition = 5(4) Acquittal of overt acts constituting acquittal of conspiracy presents proper case,for prohibition against further trial on conspiracy charge. Oliver v. Superior Court in and for Los Angeles County (App. 2 Dist. 1928) 92 Cal.App. 94, 267 P. 764. Prohibition < & = > 10(3) 99.

Jeopardy, criminal prosecutions, grounds for relief Prohibition is a proper remedy to prevent .retrial when a defendant has been once in jeopardy. Paulson v. Superior Court of El Dorado County (1962) 22 Cal.Rptr. 649, 372 P.2d 641, 58 Cal.2d 1; Rodriguez v. Superior Court of City and 'County of San Francisco (1946) 165 P.2d l,27Cal.2d500. Jury finding of not guilty of crime charged includes determination that defendant is not guilty of any included uncharged offenses, and acquittal on charge of felony drunk driving prohibited retrial of lesser included offense, mot separately charged, of misdemeanor drunk drivViolation of speedy trial rights, ing, though judge before discharge ofjury had 100. criminal prosecutions, grounds for requestioned jury about possible further deliberalief tions on ^included misdemeanor offense and they had indicated that-further deliberations would An original petition to, j court of appeal for a not he_ productive. Sylvia .v. Superior Court for writ of prohibition was an appropriate remedy Trinity County (App. 3 Dist. 1982)'l80" Cal.Rptr. following denial in superior, court of a similar 251, 128 Cal.App.3d 309.' Double Jeopardy = petition seeking to restrain municipal court 164 ' ._, from proceeding with a trial assertedly set in Insofar as the superior court is concerned, the violation of petitionees speedy-trial rights; an appellate department's' decision remanding the appeal from denial in superior court of a similar case for a new trial was res judicata on the issue petition was an inadequate remedy because peof whether or not the retrial would constitute titioner would be subjected to criminal trial double jeopardy, and the instant proceedings while pursuing it. Turner v.~Municipal Court of for writ of prohibition were an improper collat- Oakland-Piedmont Judicial Dist., 'Alameda eral attack on that judgment'in a court at.the .County (App. 1 Dist. 1982) 182 Cal.Rptr. 650, same level. Ernst v. Municipal Court of County 131 Cal.App.3d 643. Prohibition <3= 3(4) of Los Angeles, Long Beach Judicial Dist. (App. 2 Dist. 1980) 163 Cal.Rptr. 861, 104 Cal.Ap'p.3d 101. Lack of prosecution, grounds for relief 710. Judgment @ = > 518; Judgment @ = > 751 Where municipal court lacked jurisdiction to Even though the people had no right of ap- proceed with prosecution due to its abatement, peal from order of dismissal on ground that prohibition against such action was suitable defendant had been once in jeopardy, where remedy. Charrot v. Municipal Court of Los court' did not exceed its jurisdiction, the people Angeles Judicial Dist., Los Angeles County (App. could not resort to prohibition and mandamus. 2 Dist. 1968) 66 Cal.Rptr. 903, 260 Cal.App.2d People v. Superior Court In and For Los Ange- 208. Prohibition^ 10(3) Petition to restrain superior court from hearles County (App. 2 Dist. 1963) 31 Cal.Rptr. 710, 217 Cal,App.2d 517. Mandamus @ = > 61; Prohi- ing further proceedings in personal injury action on ground_of lack of prosecution would be bition = * 5(4) Where an information' charged the accused 'denied, where,record of proceedings before suwith murder, and he was convicted of man- perior court was lacking. Huson v. Superior slaughter, and on appeal a new trial was or- Court of Orange County (App. 4 Dist. 1963) 33 dered, the trial court'has'no jurisdiction to try Cal.Rptr. 568, 220 Cal.App.2d440. Prohibition accused for any other crime than that.of man- =27 slaughter, and a writ of prohibition will lie to Where plaintiff instituted suit to enjoin enprevent his trial on the charge of murder. forcement of' the. caravan act and;, pursuant to Huntington v. Superior Court of City and Coun- stipulation and court order paid to motor vehi526

WRITS OF REVIEW Title 1 cle department fees imposed by act on condition that if act should be declared unconstitutional amount deposited would be returned, after dismissal of action for want of prosecution, court had jurisdiction to determine rights of parties to the deposited money and writ of prohibition would not be granted. Lord,v. Superior Court of Los Angeles County (1946) 27 Cal.2d 855, 168 P.2d 14. Pretrial Procedure' 693.1; Prohibition = > 10(2)

102. Pendency of other actions, grounds for relief * Maternal grandparents who sought to"adopt In prohibition proceeding to prevent trial orphaned grandchildren were entitled to per- court from setting aside judgment quieting titles emptory writ of prohibition restraining superior to mining claims, which had been entered purcourt in and- for county in which paternal grandparents who also sought adoption resided suant to direction of appellate court, and from until completion of hearing for adoption in* entertaining motion for new trial or interfering county of maternal grandparents' residence with the right to restitution and possession, where adoption proceeding was first'brought. district court of appeal could not interfere with Morrisette v. Superior Court In and For Kern regular trial and determination of separate isCounty (App. 5 Dist. 1965) 46 Cal.Rptr. 153, sues involved in another suit wherein plaintiff was seeking to establish an easement for the use 236 Cal.App.2d 597. Prohibition < S = > 5(3) of pipe-line across mining claim, since the other District court of appeal would not grant pro- suit should be decided on its own merits. hibition to restrain superior court of one county Kramer v. Superior Court in and for Calaveras from proceeding in husband's divorce action County (App. 3 Dist. 1939)' 35 Cal.App.2d 239, due to pendency of wife's prior separate mainte- 95 P.2d 158. Prohibition = > 28 nance action which husband apparently f Prohibition will not issue to restrain trial of claimed unmeritorious because of a reconciliation where record was devoid of any evidence of action for cancellation of assignment of permit effort to first seek remedy in lower courts or to to prospect for oil and gas and to quiet title to in permit, where court had jurisapply to court in which divorce action was land embraced 1 pending to yield to prior jurisdiction of other diction of subject-matter and parties merely-becourt, and district court of .appeal would'not cause permit had been contested by thikl party, engage itself in determining question of recon- and contest was pending in department of inteciliation. Howell v. Superior Court In and For rior. Barker v. Superior Court in and for Los San Bernardino County (App. 4 Dist. 1962) 27 Angeles County (App. 1934) 139 Cal.App. 137, 3 = 10(2) Cal.Rptr. 149, 211 Cal.App.2d 487. Prohibition 33 P.2d 442. Prohibition < *3(1) Where respondent court had not passed oh Prohibition and not mandamus was appropri- question of another action pending) district ate remedy to bar industrial accident commis- court of appeal, in prohibition proceeding, sion from proceeding with adjustment of claim would not consider question.- Hewitt v. Juswhere superior court had previously taken juris- tice's Court of Brooklyn Tp. (App. 1 Dist. 1933) = diction of injury action involving same injuries, 131 Cal.App. 439, 21 P.2d 641. Prohibition @ until court would make final determination,.of 28 jurisdiction. Scott v. Industrial Ace. CommisOn application to enjoin enforcement of an sion (1956) 46 Cal.2d 76, 293 P.2d 18. Manda- injunction pendente lite, allegation that the mus*^ 3(1) court was without authority to issue restraining Where personal injury action was brought in order, as complaint was insufficiently'verified, the restraining superior court, and defendant therein^ and its was no longer available, where L compensation carrier subsequently invoked ju- order was supplanted by a preliminary injuncrisdiction of industrial accident commission by tion, based on a verified complaint. City of Los filing for adjustment of claim arising out* of Angeles v. Superior Court of Los Angeles Counsame personal injuries, prohibition would .issue ty (1925) 196 Cal. 445, 238 P. 670. Prohibition against commission to bar it from proceeding =*28 before superior court made final determination That trial court considered affidavits filed at of controlling jurisdictional' question. Scott v. date set for continuance of hearing of motion Industrial Ace. Commission (1956) 46 Cal.2d for injunction pendente lite, containing matter 76, 293 P.2d 18. Prohibition = 6(2) part of the original showing, which plaintiffs In determining whether writ of prohibition should have served two days prior to'the date should issue to stay proceedings in action by first fixed for hearing, was simply error in the 527

1102 Note 102 vendor to quiet title to property pending final determination of action for breach of contract >for sale of such property previously commenced .by purchasers in another county, amended complaint seeking specific performance of contract, though filed after commencement of quiet title action, must be taken as basis of comparison, particularly where amended complaint then on file was relied oh by purchasers when they 'moved for stay of proceedings in quiet title action. Myers v. Superior Court in and'for Calaveras County (App." 1946) 75 Cal.App.2d 925, 172 P.2d 84. Prohibition = > 28

WRITS OF REVIEW 1102 Title 1 Note 119 57 Cal.App. 31, 206 P. 496; Prohibition 3 = > Prohibition is_ proper remedy where trial court has made void order granting motion for -10(2) new trial. Bank of America Nat. Trust & Sav. 117. Void judgments or orders, grounds Ass'n v. Superior Court In and For Kern County (App. 1931) 115 Cal.App. 454, 1 P.2d 1081. for relief Where an order of sale is void on its face, Prohibition &=> 1" prohibition does not lie to prevent its execution, * since a purchaser would take no title; and could 118. Arbitration, judgments or orders, be treated as a trespasser. Woodward v. Supegrounds for relief * * rior Court of City and County of San Francisco Mandate or prohibition is available review (Sup.1892) 30 P. 537; Woodward v. Superior orders directing parties to arbitrate ifto the matCourt of City and County of San Francisco ters ordered arbitrated fall clearly outside the (1892) 30 P,535,,95 Cal. 272. scope of the arbitration agreement or if the Writ of prohibition would issue to prohibit arbitration would appear to be unduly time consuperior court from giving effect to its void suming or expensive. 'Atlas Plastering? Inc. v. order in personal injury action authorizing'pay- Superior Court,-Alameda County-(App. 1 Dist. ment^ to attorney, who had been discharged by 1977) 140 Cal.Rptr. 59, 72 Cal.App.3d 63. plaintiff," of moneys deposited in court for pay- Mandamus => 60 "r .rnent of judgment for plaintiff. Hendricks v. Since, if court order directing consolidated Superior Court In and For City and County of arbitration proceedings between general conSan Francisco (App. 1 Dist. 1961) 17 Cal.Rptr. tractor and a number,of subcontractors was in 364, 197 Cal.App.2d 586. Prohibition " 2 = * 10(2) excess of court's jurisdiction, the expense of the Where petitioner sought to restrain further parties in participating in and seeking review of judicial action based upon a void order, prohibi- the arbitration would'be great, the order was tion was proper remedy. City of San Diego v. reviewable by 'mandate or prohibition. Atlas Superior Court in and for San Diego County Plastering, 'Inc. v. Superior Court, 'Alameda (1950) 36 Cal.2d 483, 224 P.2d 685. Prohibi- County (App. 1 Dist. 1977) 140 Cal.Rptr. 59, 72 Cal.App.3d 63. Mandamus < S = > 60 tion <s=s 9 Whether judgment was void on its face was 119. Discovery, judgments or^ orders, required to be determined from inspection of grounds for relief judgment-roll alone, and whether the judgment Application for writ of prohibition, and/or was subject to summary action of court in pro- mandate was proper procedure. for_ seeking rehibition proceeding depended upon whether view of order compelling petitionerjyo answer record showed' affirmatively' that court was interrogatory calling for disclosure of names without jurisdiction. Hunter v. Superior Court and addresses of experts it had consulted with of* Riverside County (App. 4 Dist. '1939) 36 Cal. and who might be called to testify at a presently App.2d 100, 97 P.2d 492. Prohibition < 3 = > 10(1) unscheduled trial; matter fell within exception While an order of a judge of the superior to general rule against interim review of discovcourt of the city and county of San Francisco, ery orders since it involved a matter of first other than the presiding judge, transferring a impression as to scope of the attorney's workcase from one department to another, may be ' product privilege. South Tahoe Public Utility irregular, it is not void, and prohibition will not Dist. v. Superior Court-In and For El Dorado lie to prevent a hearing of the case by the County (App. 3 Dist. 1979) 154 Cal.Rptr. 1, 90 department to which it is transferred, on 'the Cal.App.3d 135. Mandamus &=> 32; Prohibition ground that it is exceeding its jurisdiction Brad- -5(3) ley v! Van Nostrand (App. 1 Dist. 1922) 189 Cal. While a writ of prohibition is not the favored 457, 208'P. 690. Prohibition = 10(1) method of reviewing discovery orders, and On-prohibition to prevent the execution oft ah while ordinarily the aggrieved party must raise order appointing a special administrator, the the^ issue oh direct appeal' from a final judgvalidity ofan order previously made annulling ment, the court of appeal may properly enteran order admitting the will to probate, and the tain a petition for extraordinary relief whenjthe validity of the latter order, on which the order petitioning party asserts that to compel ah anappointing the special administrator depends swer would violate a privilege. City^of Long for its validity, may be considered by the court. Beach v. Superior Court for. Los Angeles County Dunsmuir v. Coffey (1905) 148 Cal. 137,, 82 P. (App. 2 Dist. 1976) 134 Cal.Rptr. 468, 64 Cal. 682. Prohibition @ = > 28 App.3d 65. Prohibitionist) "Where an order of judicial sale was void on Prerogative writs cansbe used to review disits face, prohibition did not lie to prevent its covery orders when challenged by the assertion execution. Woodward v. Superior Court of City of privileges;,, however,-restraint is to be exerand County of. San Francisco (1892) 95 Cal. cised in .issuing such writs., American Mut. 272, 30 P. 535. Judicial Sales = 14 Liability Ins. Co. v. Superior Court For Sacra535