Kirby v. Superior Court

California Court of Appeal

Kirby v. Superior Court

275 Cal. App. 2d 975, 80 Cal. Rptr. 381, 1969 Cal. App. LEXIS 2006

CourtCalifornia Court of Appeal

DecidedAugust 29, 1969

DocketCiv. No. 26974

StatusPublished

Cited by1 cases

This text of 275 Cal. App. 2d 975 (Kirby v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kirby v. Superior Court, 275 Cal. App. 2d 975, 80 Cal. Rptr. 381, 1969 Cal. App. LEXIS 2006 (Cal. Ct. App. 1969).

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Opinion

ELKINGTON, J.

The sole issue before us is stated by the real party in interest as “The Legislature, by virtue of the enactment of section 23090.5 of the Business and Professions Code, has unconstitutionally curtailed the jurisdiction of the superior court to issue writs of mandamus. ’ ’

This question has been resolved by the case of Department of Alcoholic Bev. Control v. Superior Court, 268 Cal.App.2d 67 [73 Cal.Rptr. 780], Considering the same arguments here raised, the court concluded (p. 75) that the provisions of section 23090.5 “divesting the superior courts of jurisdiction to review decisions or orders of the Board or Department or to interfere with the operation or execution of such decisions or orders are constitutional.” We are in agree[976]*976ment with the rationale of the court and consider the result reached dispositive of the instant proceedings. (See also Department of Alcoholic Bev. Control v. Superior Court, 268 Cal.App.2d 7 [73 Cal.Rptr. 671] ; Samson Market Co. v. Kirby, 261 Cal.App.2d 577 [68 Cal.Rptr. 130].)

Let the peremptory writ of prohibition issue.

Molinari, P. J., and Sims, J., concurred.

The petition of the real party in interest for a hearing by the Supreme Court was denied October 22, 1969. Peters, J., was of the opinion that the petition should be granted.

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ELKINGTON, J.

The sole issue before us is stated by the real party in interest as “The Legislature, by virtue of the enactment of section 23090.5 of the Business and Professions Code, has unconstitutionally curtailed the jurisdiction of the superior court to issue writs of mandamus. ’ ’

This question has been resolved by the case of Department of Alcoholic Bev. Control v. Superior Court, 268 Cal.App.2d 67 [73 Cal.Rptr. 780], Considering the same arguments here raised, the court concluded (p. 75) that the provisions of section 23090.5 “divesting the superior courts of jurisdiction to review decisions or orders of the Board or Department or to interfere with the operation or execution of such decisions or orders are constitutional.” We are in agree[976]*976ment with the rationale of the court and consider the result reached dispositive of the instant proceedings. (See also Department of Alcoholic Bev. Control v. Superior Court, 268 Cal.App.2d 7 [73 Cal.Rptr. 671] ; Samson Market Co. v. Kirby, 261 Cal.App.2d 577 [68 Cal.Rptr. 130].)

Let the peremptory writ of prohibition issue.

Molinari, P. J., and Sims, J., concurred.

The petition of the real party in interest for a hearing by the Supreme Court was denied October 22, 1969. Peters, J., was of the opinion that the petition should be granted.

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275 Cal. App. 2d 975, 80 Cal. Rptr. 381, 1969 Cal. App. LEXIS 2006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-superior-court-calctapp-1969.

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