WRITS OF REVIEW Title 1 rari C=> 29; Judgment &=> 504(3); Prohibition <3=» ii

The determination of jurisdictional facts can­not be collaterally attacked in proceeding for writ of prohibition. Mills Music v. Lampton (App. 2 Dist. 1940) 40 Cal.App.2d 354, 104 P.2d 893. Prohibition^ 10(1)

II. JURISDICTION Subdivision Index

Administrative proceedings, excess of jurisdic­tion 50

Concurrent jurisdiction with another court or board 43

Construction and application 41' Determination of jurisdiction 42 Excess of jurisdiction 48-51

In general 48 Administrative proceedings 50 Inferior courts 49 Waiver 51

Inferior courts, excess of jurisdiction 49 Inferior courts, lack of jurisdiction 45 Lack of jurisdiction 44-47

In general 44 Inferior courts 45 Necessity for objection 47 Personal jurisdiction 46

Necessity for objection, lack of jurisdiction 47 Personal jurisdiction, lack of jurisdiction 46 Waiver, excess of jurisdiction 51

41. Construction and application, jurisdiction Prohibition will lie to restrain court from pro­

ceeding without or in excess of its jurisdiction. Los Angeles County v. Superior Court for Los Angeles County (1967) 62 Cal.Rptr. 435, 253 A.C.A. 754; American Soc. of Composers, Au­thors and Publishers v. Superior Court of Los Angeles County (1962) 24 Cal.Rptr. 772, 207 Cal.App.2d 676; Morehouse v. Superior Court in and for Los Angeles County (1932) 12 P.2d 133, 124 CaLApp. 38; Dakan v. Superior Court of Santa Cruz County (1905) 82 P. 1129, 2 Cal.App. 52.

"Prohibition" attacks only the jurisdiction of the court. Goodman Bros. v. Superior Court of City and County of San Francisco (1942) 124 P.2d 644, 51 Cal.App.2d 297; Drew v. Superior Court in and for Mendocino County (1919) 185 P. 680, 43 Cal.App. 651.

Generally, any acts which exceed the defined power of a court in any instant, whether that power be defined by constitutional provision, express statutory declaration, or rules devel­oped by the courts and followed under the doc­trine of stare decisis, are in excess of jurisdic­tion, insofar as that term is used to indicate that those^acts may be restrained*by prohibition or annulled on certiorari. Los Angeles County v.

§ 1 1 0 2 Note 41

Superior Court for Los Angeles County (App. 2 Dist. 1967) 62 Cal.Rptr. 435, 253 CaI.App.2d 670. Certiorari @= 28(2); Prohibition <£= .10(1)

For trial court to be acting "without or' in excess of jurisdiction" as that term- is used in relation to remedy of prohibition it is not neces­sary that there be lack of jurisdiction over sub­ject matter or parties in fundamental sense but only that there be want or excess of power of court as defined by statute or rules developed and followed under doctrine of stare decisis. Corona Unified Hospital Dist. v.. Superior Court of Riverside County (1964) 40 Cal.Rptr. 745, 61 Cal.2d 846, 395 P.2d 817. 'Prohibition S 10(1)

Prohibition arrests proceedings of any tribu­nal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of jurisdiction. Fleischer v. Adult Authority .(App. 3 Dist. 1962) 20 Cal: Rptr. 603, 202 Cal.App.2d 44. Prohibition @=* 1

Prohibition is granted to restrain further exer­cise of jurisdiction. Cahn v. Jones (App. 1950) 101 Cal.App.2d 345, 225 P.2d 570.- Prohibition ©=>10(1)

Whether emergency price control act limited time within which tenants might bring action to recover treble damages for alleged rent over­charges to 30 days after overcharges were made could be tested by prohibition only if time limi­tation in act went to jurisdiction of court, and petitioners had no plain, speedy and adequate remedy in ordinary course, of law. Gorbacheff v.„Justice's Court of City of Berkeley, AJameda County (1947) 31 Cal.2d 178, 187 P.2d 407. Prohibitions 3(1)

In certiorari and prohibition- proceedings, term "jurisdiction" has a very broad meaning, arid writ may be granted where court has no jurisdiction to- act except in a particular man­ner, though it has jurisdiction in the, fundamen­tal sense over subject, matter and parties. Res­cue Army v. Municipal Court of City of Los Angeles (1946) 28 Cal.2d 460, 171 P.2d 8, ap­peal dismissed 67 S.Ct. 1409, 331 U.S. 549, 91 L.Ed. 1666. Certiorari "3= 28(1); Prohibition ®= 10(1)

In its ordinary sense; for purpose of determin­ing right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is given to term "jurisdiction" than its fundamental meaning, and term may be applied to a case where, though court has juris­diction over subject-matter and parlies in funda­mental sense, it has no power to act except in a particular manner, or to give certain kinds of relief, or to act without occurrence of certain procedural prerequisites. Coates v. Klette (App. 3'Dist. 1941) 119 P.2d 397, vacated 20 Cal.2d 897, 125 P.2d 500, hearing granted.

Where charter of city of Fresno empowered city commission to try charges of misfeasance

509

§ 1 1 0 2 Note 14 by tribunal, corporation,'board, or person hav­ing jurisdiction of proceeding. Fitts v. Superior Court-in and for Los Angeles County (1935) 4 Cal.2d 514, 51 P.2d 66. Prohibition «» 3(2)

Writ of prohibition is not a writ of error, and' is not available as an original writ in matters properly taken by writ of error or appeal. Amos'v. Superior Court of California, in and for San DiegoCounty (1925) 196 Cal. '677, 239 P. 317. Prohibition ©=• 3(2)

The writ cannot be used as a writ of error to determine a question of fact which was for the trial court to determine, but only to determine whether the superior court is proceeding in excess of'its jurisdiction. Conlan v. Superior Court (App. 1910) 12 Cal.App. 420, 107 P. 577. Prohibition'©3 1

15. Review, similarity and interchangea-bility of extraordinary writs

The specific conditions for the issuance of a writ of review differ from those provided for writs of mandamus, and prohibition and author­ity for the issuance of the latter writs is not generally applicable to the issuance of the for­mer." Monterey Club v. Superior Court in and for Los. Angeles County (App. 2 i-Dist. 1941) 44 CaLApp?2d 351, 112 P.2d 321. Certiorari <3=> 1

Remedy by writ of review will be given, though prohibition only was petitioned for, where if appears on complete record that peti­tioner is entitled to remedy afforded by writ of review. Smurda'v. Superior Court of State of California, in and for Los Angeles County (App. 2 Dist. 1928) 266 P. 843, hearing granted.

Application for writ of prohibition to restrain superior court from trying an appeal from jus­tice court would not be treated as a writ of review upon'determination of appeal by superi­or court before service of writ, where a com­plete record had not been brought up so that court could know that it was doing exact justice between parties. Davis v. Superior Court-of California in and for Alameda County (App. 1 Dist. 1925) 71 Cal.App. 646, 236 P. 151. Prohi­bition ©= 28

Prohibition is a writ for preventive relief, and is not a writ of review; nor will it serve as a second appeal, after the adverse determination of the only appeal given by statute. Valentine v. Police Court of City and County of San Francis­co (1904) 141 Cal. 615, 75 P. 336. Prohibition <3= 1

16. Acts of those exercising judicial functions City attorney's prosecution1 of alleged viola­

tors of motor carrier transportation agent act was not exercise of "judicial function" so as to warrant issuance of prohibition against' city at­torney by supreme court exercising original-ju­risdiction. Walsh v. Railroad Commission

SPECIAL PROCEEDINGS Part; 3

(1940) 16 Cal.2d 691, 107 P.2d 611. Courts ®? 207.5

"Prohibition"-may not issue except for pur­pose of arresting proceedings of those exercis­ing judicial functions. Walsh v. Railroad Com­mission (1940) 16 Cal.2d 691, 107 P.2d 611. Prohibition ®=» 1

In proceeding for writ of prohibition or of mandate to terminate litigation by public ad­ministrator who sought to set aside decedent's transfers of property and to quiet title to such property in decedent's estate, wherein mandate was' granted directing dismissal of litigation, contention that respondents should be assured fees to which they were entitled as a result of the administration, would not be considered; being a matter for the probate court. Perry v. Superior Court of Marin County (App. 1 Dist. 1938) 29 Cal.App.2d 114, 84 P.2d 250. Manda­mus ©=> 172; Prohibition @=»'"28

Whether one violating injunction against di­version of water acted as agent of parties en­joined, or in exercise of paramount right to divert'it, was for. trial court. Felton Water Co. v. Superior Court of Santa Cruz County (App. 1 Dist. 1927) 82 Cal.App. 1, 254 P. 915. Prohibi­tion «=> 28

Prohibition will issue to restrain referees in condemnation proceedings from taking pro­ceedings "which might be without or in excess of their jurisdiction, such referees being "persons exercising judicial functions" within this sec­tion. Apartment & Hotel Financing Corp. v. Will (App. 2 Dist. 1924) 69 Cal.App. 276, 231 P. 349. Prohibition ©= 5(3)

Prohibition lies only where a'public officer is acting without or in excess of jurisdiction, which is not the case where a justice of the peace erroneously determines that an affidavit filed before him is sufficient. Cassidy v. Can­non (App. 1912) 18 Cal.App. 426, 123 P. 358, rehearing denied 18 Cal.App.-426, 123 P. 359. Prohibition ©=••10(2)

'Under this section, a writ of prohibition will not issue to arrest the action of,a number of persons assuming to act as a board of trustees, where the petition for the writ alleges that the persons whose "actions are sought to be re­strained are neither in law nor in fact a board of trustees. Hevren v. Reed (1899) 126 Cal. 219, 58 P. 536.

17. Collateral attack Even'if trial court in passing on motion for

summary judgment committed error in not recognizing triable issue contended for by plain­tiff, such error would not be grounds for a collateral attack on judgment or for" direct at­tack by jurisdictional writs of certiorari or pro­hibition. Perego v. Seltzer (App. 1 Dist. 1968) 67 Cal.Rptr. 636, 260 Cal.App.2d 825. .Certio-

508

§ 1 1 0 2 Note 41 and malfeasance in office filed by one of its members against city physician, and under charter three of the five members could try the charges, commission had jurisdiction to hear case, notwithstanding that presence of allegedly disqualified member by whom charges were preferred, sitting at the trial, might be serious error. Nider v. Homan (App. 1939) 32 Cal. App.2d 21, 89 P.2d 135. Municipal Corpora­tions-^ 159(2)

The test of jurisdiction of a tribunal or person against which or whom a writ of prohibition is sought is whether such tribunal or person is authorized by law ,to hear and' determine the proceeding before it. Fels v. Justice's Court of City of Berkeley (App. 1 Dist. 1938) 28 Cal. App.2d 739, 83 P.2d 721. Prohibition © 10(1)

A writ of prohibition can only prohibit "any tribunal,' corporation, board, or person exercis­ing judicial functions from acting without or in excess of its .jurisdiction. Ames v. Superior Court in and for San Diego County (App. 4 Dist. .1938) 28 Cal.App.2d 502, 82 P.2d 948. Prohibi­tion •&= 1

District court,, of appeal has power to recall and quash alternative writ of prohibition which has been [.inadvertently ;issued upon misappre­hension-t>f facts •involved. Joerger v.. Superior Court of- Shasta County (App. 1934) 2 Cal. App.2d 360, 37 P.2d 1084. Prohibition G= 24

Where superior court had jurisdiction to de­termine questions presented on application for prohibition, writ to restrain superior court from proceeding was refused. Fischer v. Superior Court in and for Los Angeles County (App. '2 Dist. 1930) 105 Cal.App. 466, 287 P. 556. Pro­hibition^ 10(2)

Prohibition arrests proceedings of any'tribu-nal exercising functions in proceedings of which they have no jurisdiction. Williams Co. v. Su­perior Court of California, within and for Los Angeles County (App.' 2 Dist. 1929) 97 Cal.App. 422, 275 P. 838. Prohibition ©=> 10(1)

That one judge of a court exercises authority in a case property belonging to another judge is not a matter of jurisdiction controllable in pro­hibition. Graziani v. Denny (1917) 174 Cal. 176, 162 P. 397. Prohibition ©= 11

42. Determination of jurisdiction When trial court' has heard and determined

jurisdictional challenge and has decided in fa­vor of its own jurisdiction and then proceeds to act and try cause on its merits, it may then-be claimed that court without jurisdiction is pur­porting to exercise it and then jurisdiction-' to determine jurisdiction has been exercised 'and higher courts will restrain lower court from acting in excess of its jurisdiction. River Farms, Inc. v. Superior Court of San Bernardi­no County (1967) 60 Cal.Rptr. 665, 252 Cal.

SPECIAL PROCEEDINGS Part 3

App.2d 604; Harden=v. Superior Court, In and For Alameda County (1955) 284 P.2d 9, 44 Cal.2d 630.

Determination of jurisdiction of superior court over action by employer against union through union's application for writ of prohibi­tion against court was justified, where trial was anticipated to last six. days, some of defendants would attend trial with greatest inconvenience and many of witnesses would depend for their livelihood on daily wages. Bricklayers and Ma­sons Union No. 1 of Cal. v. Superior Court of Kings County (App. 5 Dist. 1963) 31 Cal.Rptr. 115, 216 Cal.App.2d 578. Prohibition <&> 10(2)

Fact that trial court denied defendant's mo­tion for summary judgment did not constitute positive assumption of jurisdiction by court, and court would not be restrained from determining question of its own jurisdiction. American Soc. of Composers, Authors and Publishers v. Supe­rior Court of Los Angeles County (App.. 2 Dist. 1962) 24 Cal.Rptr. 772, -207 Cal.App.2d 676. Prohibition <3=> 10(2)

Where defendant charged with statutory vio­lation in justice court proceeding^did-not chal­lenge jurisdiction of that court- by demurrer, motion, "plea or other, objection so "that court could preliminarily decide question of whether it had jurisdiction, there was nothing for supe­rior court to prohibit on his application for writ of prohibition challenging justice court jurisdic­tion on ground that statute was void and inef­fective to confer jurisdiction, and court com­mitted error in i granting peremptory* writ of prohibition. Shaffer v. Justice Court of'Chico Judicial Dist., Butte County'(App..,3'Dist. 1960) 8 Cal.Rptr. 269, 185 CaI.App.2d 405. .Prohibi­tion ©= 17

Where superior court had not determined that it had jurisdiction to issue preliminary in­junction to restrain picketing by members of union, but it had issued a temporary restraining order to show cause, it thereby determined that it had jurisdiction of the subject matter and exercised that jurisdiction, and prohibition would therefore lie to restrain superior court from acting further in excess of its jurisdiction. Holt v. Superior Court, Los Angeles County (App.,1950) 100 Cal.App.2d 403, 223 P.2d 881. Prohibition®^ 10(2)

Where defendant state had interposed defense of sovereign immunity from suit, state was enti­tled to invoke prohibition to prohibit court from entertaining further proceedings in the, action, since such defense presented a jurisdictional question. People v. Superior Court of City and County of San Francisco (1947) 29 Cal.2d 754, 178P.2dl. Prohibition ®=> 10(2)

The superior court had jurisdiction to deter­mine whether case pending before it was within the jurisdiction of the municipal or of the supe-

510

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

43. Concurrent jurisdiction with another court or board

The pendency of a prior' action in a court of competent jurisdiction, predicated on same cause of action and between the same parties constitutes good ground for abatement of a later action within the same jurisdiction either in same court or in another court having jurisdic­tion, and first court to assume and exercise jurisdiction in a particular case acquires exclu­sive jurisdiction and prohibition, lies to restrain another court from proceeding if it is threaten­ing to do. so. Kalmus v. Kalmus (1951) 230 P.2d 57, 103 Cal.App.2d 405, certiorari denied 72 S.Ct. 292, 342 U.S. 903, 96 L.Ed. 676; Sim­mons, v. Superior Court in and for Los Angeles County (1950) 214 P.2d 844, 96 Cal.App.2d 119, 19A.L.R.2d288.

Where two tribunals have concurrent jurisdic­tion over the same parties and subject matter, the tribunal in which jurisdiction first attached is entitled to retain it exclusively, and prohibi­tion lie's to restrain the other tribunal from taking any further proceedings pending the complete exercise of such jurisdiction. M. H. Golden Const. Co. v. Superior Court of State, in and for Imperial County (1950) 221 P.2d 218, 98 Cal.App.2d 811; Myers v. Superior, Court.in and for Calaveras County (1946)-172 P.2d 84, 75 Cal.App.2d 925; Browne v. Superior Court in and for City and County of San Francisco (1940) 107 P.2d 1, 16 Cal.2d 593, 131 A.L.R. 276.

Prohibition will lie to restrain one court from assuming jurisdiction^ over a matter which'an­other tribunal having concurrent jurisdiction has already assumed and is exercising. Califor­nia Press Mfg. Co. v. Superior Court of Santa Clara County (1942) 128 P.2d 680, 20 Cal.2d 777; Wright v. Superior Court in and for Calav­eras County (1941) 110P.2d529, 43 Cal.App.2d

§ 1 1 0 2 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 wife who-<had previously instituted identical di­vorce proceedings in superior court for another county. Loftis v. Superior Court In and For San Diego County (App. 4 Dist. 1962) 23 Cal. Rptr. 125, 205 Cal.App.2d 148. Prohibition^ 10(2)

Where,there were seven defendants in suit in Merced County action seeking declaratory relief as to rights and obligations of parties under contracts for drilling of water wells' in Kings County and only three defendants in. Kings County suit seeking foreclosure of mechanics' liens, property owners were not entitled to pro: hibition in _ Kings County suit when many of parties in Merced case could not properly be brought into Kings County'suit, and when scope of. issues in two actions differed and subject matter was diverse. Robinson v. Superior Court In and For Kings County (App. 5 Dist. 1962) "21 Cal.Rptr. 475, 203 Cal.App.2d 263. Prohibition <S» 10(2)

An action wherein plaintiff sought modifica­tion of terms of notes and trust deeds for alleged fraud and conspiracy in respect thereto, and also sought judgment for usury, was a personal action transitory in character, and when superi­or court of county in which action was com­menced assumed jurisdiction over, the subject matter, its jurisdiction was exclusive, and threatened invasion thereof by commencement of a similar action in another county by defen­dants, presented a proper case for prohibition. Cade v. Superior Court In and For San Bernar­dino County (App. 4 Dist. 1961) 12 Cal.Rptr. 847, 191 CaI.App.2d 554. Courts @=* 7; Courts «» 475(1); Prohibition ©=> 10(2)

Superior court which first acquired jurisdic­tion of subject matter and parties to action for specific performance of contract for sale of property was charged with the duty of litigating all the issues and giving all the relief to which

511

§ 1 1 0 2 Note 43 any of the parties might be entitled under the pleadings, and fact that remedy sought in action to quiet title to the property subsequently' com­menced by vendor in another county was not precisely the same did not affect purchasers' right to have proceedings in quiet title action stayed pending final determination of action for specific performance. Myers v. Superior Court in and for Calaveras County (App. 1946) 75 Cal.App.2d 925, 172 P.2d 84. Courts ®= 479

When superior court assumed jurisdiction over subject matter of action by purchasers for breach of contract for sale of property as of time when summons was served'on complaint therein filed and continued to maintain jurisdic­tion after filing of amended complaint seeking specific performance of contract, the jurisdic­tion of such court was exclusive, and prohibi­tion to arrest proceedings in excess of jurisdic­tion would issue to stay proceedings in action to quiet title .to such property commenced by ven­dor in another county after summons had been served in purchasers' action. Myers v. Superior Court in and for Calaveras County (App. 1946) 75 Cal.App.2d 925, 172 P.2d 84. Courts <S=> 475(1); Prohibition^ 10(2)

The fact that" second action in respondent superiorVourt was based on'the same written sales contract, as action in another superior court which had previously acquired jurisdic­tion did not warrant issuance of writ of prohibi­tion against respondent superior court on ground that it had no jurisdiction, where the second action was directed to an accounting for sales made subsequent to the filing of the first action. California Press Mfg. Co. v. Superior Court of Santa'Clara County (1942) 20 Cal.2d 777, 128 P.2d 680. Prohibition ©= 10(2)

Supreme court may issue writ of prohibition where it appears that superior court appointing receiver acted in excess of its jurisdiction be­cause another court first acquired exclusive ju­risdiction to make appointment. Slinack v. Su­perior Court in and for Tulare County (1932) 216 Cal. 99, 13 P.2d 670. Prohibition 0= 10(2)

Contractor's sureties,'being' sued by laborers and materialmen in actions transferred from one county to another, will not be granted writ of prohibition against first county entertaining jurisdiction in actions by the laborers and mate­rialmen against the county, based on stop no­tice, on theory that same question was'involved and that jurisdiction was first acquired in the action against the sureties, where one of the stop notice actions which had not been trans­ferred to the second county was commenced prior to the commencement of actions against the sureties. McMorry v. Superior Court of California in and for Sutter County (App. 3 Dist. 1921) 54 Cal.App. 76, 201 P. 797. Prohibition @= 10(2)

SPECIAL PROCEEDINGS Part 3

That the jurisdiction of town trustees was first obtained in an election.contest, did-not call for the issuance of a writ of prohibition to prevent the district court from entertaining jurisdiction of the same contest; the jurisdiction being con­current, the proper procedure is to apply to the district court to stay the proceeding on the ground of another action pending. McGregor v. Board of Trustees of Town of Burlingame (1911) 159 Cal. 441, 114 P. 566. Prohibition^ 3(1)

On an application for a*writ of prohibition to prevent a superior court of a particular county from assuming jurisdiction of a decedent's es­tate on the ground that an application for letters of administration was first made in another county, the question whether the decedent had any estate in the latter county cannot be raised, that being determinable by the superior court. Dungan v. Superior Court of Fresno County (1906) 149 Cal. 98, 84 P. 767. Prohibition <2= 28 • M

44. Lack of jurisdiction—In general ft In prohibition matters,'phrase "lack of jurisr

diction" may be applied to case where, though court has jurisdiction oven subject matter and parties in fundamental sense, it has no jurisdic­tion or power to act except in particular man­ner, or to give certain kinds of relief, or to act without occurrence of. certain procedural pre­requisites. Schindler v. Municipals Court, Los Angeles Judicial Dist., Los Angeles County (1962) 21 Cal.Rptr. 217, 203 Cal.App.2d 13; City and County of San Francisco v. Superior Court of City and County of San Francisco (1960) 1 Cal.Rptr. 158, 347 P.2d 294, 53 Cal.2d 236.

When power of condemning agency to main­tain action in eminent domain has been raised in trial court by demurrer and jurisdictional challenge has been resolved in favor of condem­nor, jurisdictional issue may be raised by peti­tion for writ of prohibition. Kenneth Mebane Ranches v. Superior Court (App. '5 Dist. 1992) 12 Cal.Rptr.2d 562, 10 Cal.App.4th 276, review denied. Prohibition ©=» 10(2)

The'superior court's jurisdiction over alleged concerted refusal to work engineered by union without first notifying employer arid federal me-diation'and conciliation service of its intention, in violation of National Labor Relations Act (29 U.S.C.A. § 158), was preempted by national la­bor relations board in light of fact that no other basis for employer's claim for relief appeared, there was no showing whatsoever how scope of action may have transcended or significantly differed from relief sought before the board, and preliminary injunction already issued by superi­or court clearly conflicted with decision of board that no action against union was warrant­ed. Service Emp. Intern. Union, Local 102,

512

WRITS "OF REVIEW Title 1 AFL-CIO v. Superior Court, Imperial County (App. 4 Dist.:l980) 169 Cal.Rptr. 494, 112 Cal. App:3d 712. Labor And Employment © 1677(6)

Prohibition is proper remedy to prevent court from proceeding with action on ground'that it does'not have jurisdiction. J. A. Thompson & Sons, Inc. v. Superior Court for Los Angeles County (App. 2 Dist. 1963) 30 Cal.Rptr. 471, 215 Cal.App.2d719. Prohibition©^ 10(1)

To permit the issuance of prohibition, there need not be a lack of jurisdiction over the sub­ject matter or parties in a fundamental sense but only that there be a want or excess of power of the court as defined by 'the statute or by the rules developed under the doctrine of stare deci­sis. City of Los Angeles v. Superior Court of Los Angeles County (1959) 51 Cal.2d 423,:333 P.2d745. Prohibition @= 10(1)

Filing of notice of appeal by great aunt of minor from order revoking her letters of guard­ianship, appointing aunt of minor as guardian, and ordering that custody of minor be given to aunt, stayed all proceedings in superior court for enforcement of order until final determina­tion of appeal, and therefore superior court did not have jurisdiction to proceed in habeas cor­pus proceeding by aunt to obtain custody of minor, and peremptory writ of prohibition would issue to restrain superior court from tak­ing any further proceedings in connection with habeas corpus proceeding. Stogsdill v. Superi­or Court, Los Angeles County (App. 1955) 131 Cal.App.2d 78, 280 P.2d 148. Courts ®= 207.5

Supreme court was without jurisdiction to entertain prohibition proceeding, where district court of appeal had jurisdiction over subject-matter of such proceeding at date of commence­ment of proceeding. Fitts v. Superior Court in and for Los Angeles County (1936) 6 Cal.2d 247, 57P.2d518. Prohibition <3=> 10(1). . .,

Writ of prohibition is available, only for pur­pose, of halting attempted exercise of jurisdic­tion not possessed by respondent sought to be restrained. Derrer v. Superior Court in and for Los Angeles County (App. 2 Dist. 1933) 129 CaLApp. 154, 18 P.2d 371. Prohibition ©=» 10(1)

A writ of prohibition did lie to .prevent a superior court from proceeding in a land con­test case of which it had no jurisdiction. Cray-croft v. Superior Court of Kern County (App. 1912) 18 Cal.App. 781, 124 P. 1042. Prohibi­tion €=,10(2)

Want of jurisdiction is an insufficient ground for the issuance of a writ of prohibition if there be a plain, speedy, and adequate remedy at law. Burge v. Justices' Court of City & County of San Francisco'(App. 1909) 11 Cal.App. 213, 104 P. 581. Prohibition <S=> 3(1)

§ 1 1 0 2 Note 46

The court of appeal having held on applica­tion for writ of prohibition, restraining superior court from proceeding further in action to con­test will, that latter court's transfer of action to its probate jurisdiction after statutory time for contest conferred no jurisdiction on it to pro­ceed with, matter, need not consider whether consolidation of action with probate proceeding to accomplish transfer was particularly author­ized by law. Messer v. Superior Court of Ven­tura County (App. 4 Dist. 1937) 23 Cal.App.2d 743, 73 P.2d 897. Prohibition •©=» 28

45. Inferior courts, lack of jurisdiction During time appellant was seeking hearing in

supreme court, after district court of appeal had refused to issue writ of prohibition, trial court was not divested of jurisdiction. Citizens Nat. Trust & Sav: Bank of Los Angeles v, Scott (App. 2 Dist. 1963) 35 Cal.Rptr.t584, 222 Cal.App.2d 718. Prohibition <3= 34

Showing of petitioners did not entitle them to writ of prohibition restraining trial court from proceeding with trial on ground that it lacked jurisdiction of subject-matter because issue had not been joined. Modern Iron Works v. Superi­or Court of California in and for Los Angeles County (App. 2 Dist. 1932) 124 Cal.App. 126, 12 P.2d 74. Prohibition ©=> 10(1)

Where the trial court continued the hearing on a temporary restraining order;beyond the time fixed by statute, it was divested of jurisdic­tion to take any action on the date fined other than to dissolve the order issued, and a writ of prohibition to prevent it from taking action on such restraining order will be,granted. Kelsey v. Superior Court of San Diego County (App. 1919) 40 Cal.App. 229, 180 P. 662. Prohibition €=> 10(2)

Prohibition lies to prevent court from pro­ceeding with trial of action where jurisdiction is wanting. Coleman v. Superior Court of Calav­eras County (App. 1933) 135 Cal.App. 74, 26 P.2d673. Prohibitions 10(1)

Writ of prohibition will not lie to prescribe what subordinate court shall consider in • case within its jurisdiction. Felton Water Co. v. Su­perior Court of Santa Cruz County (App. 1 Dist. 1927) 82 Cal.App. 382, 256 P. 255. Prohibition ^5(1) "• "'

46. Personal jurisdiction, lack of juris­diction

Where service of summons on citizen of Mexi­co was void, prohibition proceeding -by citizen of Mexico to restrain superior court from pro­ceeding further in action against him was the appropriate.remedy. Gerard v. Superior Court in and for Los Angeles County (App. 1949) 91 Cal.App.2d 549, 205 P.2d 109. Prohibition &=> 10(2)

513

§ 1 1 0 2 Note .46

Objection that court had no jurisdiction of persons of defendant executrixes in their indi­vidual as well as in their representative capacity in action for declaratory relief and for specific performance-of alleged agreement by testatrix to execute renewal lease, was not jurisdictional, and alleged error in refusing to dismiss execu­trixes as defendants in their individual capacity, if error, was error in exercise of jurisdiction not reviewable on prohibition. Wright v. Superior Court in and for City and County of San Fran­cisco (App. 1 Dist. 1948) 85 Cal.App.2d 151, -192 P.2d511. Prohibition^ 10(2)

A writ of prohibition is the proper method of restraining a court/which is exceeding its juris­diction by improperly assuming jurisdiction over persons not served with process as re­quired by law. Berger v. Superior Court in and for Yuba County (App. 3 Dist. 1947) 79 Cal. App.2d425, 179P.2d600. Prohibition ©= 10(1)

In divorce action by wife, allowance of $10,000 attorney's fees and $2,000 for costs, out of husband's property worth $17,500 held by a receiver, was seemingly unconscionable, but could not be reviewed in proceeding for writ of prohibition to prevent court from" taking further action in the divorce action until court obtained jurisdiction over the petitioner's person. Nel­son" v. Superior Court in and for Riverside County (App. 1946) 75 Cal.App.2d 372, 171 P.2d 52. Prohibition <3= 28

Prohibition cannot issue to stay trial because of procedural defect of parties unless the defect is jurisdictional. Bank' of California Nat. Ass'n v. Superior Court in and for City and County of San Francisco (1940) 16 Cal.2d 516, 106 P.2d 879. Prohibition ©=> 10(2)

Defendants, not regularly served with sum: mons, nor otherwise personally served with no­tice to appear, and not appearing in state's action to cancel their registrations as voters, for fraud, were entitled to peremptory' writ of pro­hibition, restraining superior court from enterr ing any order adjudicating their status or affect­ing their rights. Pierce v. Superior-Court in and for Los Angeles County (1934) 1 Cal.2d 759, 37P.2d460. Prohibition ©= 10(2)

Defendant, not served in divorce suit, is not precluded from seeking relief by prohibition from orders entered therein on theory that he comes with unclean hands. Chaplin v. Superi­or Court in and for Los Angeles County (App. 2 Dist. 1927) 81 Cal.App. 367, 253 P. 954. Equity •3^65(1)

Prohibition will lie, where lack of jurisdiction is as to the person. Westinghouse Electric & Mfg. Co. v. Justices' Court of-.Corcoran Tp. in and for Kings County (App. 2 Dist. 1926) 79 Cal.App. 759, 250 P. 1104. Prohibition "3= 10(1)

SPECIAL PROCEEDINGS Part 3

Where a father brought habeas corpus for custody of minor, child while mother and child were at liberty on bail pending determination of immigration proceedings, and mother prayed writ of prohibition against prosecution of habe­as corpus proceeding, on ground-that she was immune from service of process of state court, since plea of immunity did not deprive superior court of jurisdiction, but merely .'furnished ground for abatement if not waived, prohibition would not lie. Cooke v. Superior Court of City and County of San Francisco (App. 1925) 73 Cal.App. 744, 239 P. 381. Prohibition .©= 10(2)

Jurisdiction of a justice court over the person of a defendant who defaults may be attacked by prohibition. American Law Book Co. v. Superi­or Court in and for Santa Clara County (1912) 164 Cal. 327, 128 P. 921. Justices Of The Peace ©= 147(3)

47. Necessity for objection, lack of juris­diction

Ordinarily, a reviewing court will .not grant -prohibition until an objection to jurisdiction has been made and .overruled in lower court, since it is assumed that any valid objection promptly brought to attention of that court will prevail and that writ will.be unnecessary. Schaeffer v. Municipal Court, Santa-Barbara-Goleta Judicial Dist., Santa Barbara County (1968) 67 Cal.Rptr. 479, 260 Cal.App.2d 819; Sayegh v. Superior Court of.Los Angeles County (1955) 285 P.2d 267, 44Cal.2d814.

Prohibition would not be issued to stay the hand of federal district courtin libel proceeding brought against s;hip though petitioner secured judgments in municipal court and attempted to levy an attachment on the ship to satisfy the judgments, where petitioner did not' object to jurisdiction of district court at the outset.'and it appeared that petitioner had other adequate remedies. Barker v: United States District Court, C.A.9 (Cal.)1950, 185 F.2d 582. Prohibi­tion <3= 3(3); Prohibition @=> 17

Ordinarily, claim of excess or lack of jurisdic­tion should be called to attention of inferior tribunal as condition precedent to application for writ of prohibition, unless complaint fails on its face to state cause of action, but such is'not essential to jurisdiction of district court of ap­peal to grant writ. City Council of City of Santa Monica v. Superior Court of Los Angeles Coun­ty (App. 2 Dist. 1962) 21 Cal.Rptr. 896, 204 CaI.App.2d 68. Prohibition <3= 17

A trial court's jurisdiction must be challenged in that court by demurrer, motion, plea, or other objection of some kind, so that court may preliminarily decide .whether it has jurisdiction to proceed, before remedy of prohibition is available. Western Surgical Supply Co. v. Af-

..fleck (App. 3 Dist. 1952) 110 CaI.App.2d 388, 242P.2d929. Prohibition ©=> 17

514

WRITS OF REVIEW H '» Title 1

An appellate court will not issue a- writ of prohibition to lower court until objection: to such court's action or anticipated action has been made to and overruled by it, unless its lack of jurisdiction is apparent on face of record; it has persisted in course of action in manner indicating that objection would be useless, or there was no opportunity to interpose objection. Hanrahan v. Superior Court in and for Merced County (App. 3. Dist. 1947) 81 Cal.App.2d 432, 184P.2dl57. Prohibition©^ 17

Before remedy by prohibition is available it is necessary to challenge jurisdiction of trial court in that court by demurrer, motion, plea or other objection, and unless a party can show that a lower tribunal, after first determining that it has jurisdiction, is proceeding to exercise it, there is nothing for a higher court to prohibit. Rescue Army v. Municipal Court of- City of Los Angeles (1946) 28 Cal.2d 460, 171 P.2d 8, appeal dis­missed 67 S.Ct. ,1409, 331 U.S. 549, 91 L.Ed. 1666. Prohibition <§= 17

Where trial court has decided in favor of its own jurisdiction and is purporting to exercise it, a higher court will1 in an appropriate case re­strain lower court from acting in excess of juris­diction. Rescue .Army v. Municipal Court of City of Los,Angeles (1946) 28 Cal.2d 460, 171 P.2d 8, appeal dismissed 67 S.Ct. 1409, 331 U.S. 549, 91 L.Ed.' 1666. Prohibition <•== 17

A petition for writ of prohibition should'affir-matively allege that challenge to jurisdiction was raised in lower court. 'Rescue Army v. Municipal Court of; City of Los Angeles (1946) 28 Cal.2d 460, 171 P.2d 8, appeal dismissed. 67 S.Ct. 1409, 331 U.S. 549, 91 L.Ed. 1666. Prohi­bition ©=> 20

Ordinarily, claim of excess or lack of jurisdic­tion should be called to 'attention of inferior tribunal as a "condition .precedent1' to applica­tion for writ" of prohibition; unless complaint fails on its face to state a cause of action, but this is'not essential to'jurisdiction of court of appeal to grant writ, and the rule is not invoked where the plea would have been rejected by lower court or entire proceedings involved-low­er court's jurisdiction to enjoin an allegedly lawful enterprise. Monterey Club v. Superior Court of Los Angeles (App. 1941) 48 Cal.App.2d 131, 119 P.2d'349. Courts. ©= 207.5; Prohibi­tion ©=> 17

Where club was not made a party to proceed­ings..for injunction against one operating gam­bling tables on club's premises pursuant to con­tract with club, and thus had no opportunity to object on jurisdictional grounds, failure to make such objection did not preclude relief by prohi­bition. Monterey Club v. Superior Court of Los Angeles (App. 1941) 48 Cal.App.2d 131, 119 P.2d 349. Prohibition*^ 17

§ 1 1 0 2 Note 48

When lack of jurisdiction is' apparent on,face of proceeding in lower court, preliminary objec­tion is not necessary. before making application for prohibition. Fueller v. Justice's Court, of Encinitas Tp., San Diego County (App. 4 Dist. 1933) 134 Cal.ApV- 305, 25 P.2d 248. Prohibi­tion ©=> 17

Where defendant's demurrer on ground of lack of jurisdiction was overruled, no further objection was necessary before applying for writ of prohibition. Goodyear Tire & Rubber Co. v. Hanby (App. 2 Dist. 1931) 111 Cal.App. 382, 295 P. 562. Prohibition <3=> 17

Defendant, who was not served and did not appear, may bring prohibition to obtain relief from court's order without making objection in lower court. Chaplin v. Superior Court in and for Los Angeles County (App. 2 Dist. 1927) 81 Cal.App. 367, 253 P. 954. Prohibition ©=> 17

Defendant may bring original prohibition in. appellate court, without objection in trial court, where it conclusively, appears that application there would'be denied. Chaplin v. Superior Court in and for Los Angeles'County (App. 2 Dist. 1927) 8rCal.App. 367, 253 P. 954. Prohi­bition e= 17

Objections to trial court proceeding must be presented to it before writ of prohibition against its proceeding, may be sought. Grinbaum v. Superior Court of City and County of San Fran­cisco (1922) 189 Cal. 741, 209 P. 1005. Prohi­bition <£='17 -,

On an application for prohibition to-prevent trial by the'superior court, where no judgment had in fact been entered below, counsel's failure to call the court's attention thereto does not justify a refusal to enter the writ, where the record affirmatively shows want of jurisdiction. Shriver v. Superior Court in and for Sonoma County (App. 3 Dist. 1920) 48 Cal.App. 576, 192 P. 124. Prohibition'3='12 '

48. Excess of jurisdiction—In general Generally, any acts which exceed the defined

power of a court in any instant, whether that power be defined by constitutional'provision, express statutory declaration, or rules devel­oped :by the courts and followed under the doc­trine of stare decisis, are in excess of'jurisdic-tion, insofar as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. Los Angeles County ..v. Superior Court for Los Angeles County (1967) 62 Cal.Rptr. 435,. 253 A.C.A. 754; Housing Au­thority of City of Eureka v. .Superior Court in and for Humboldt County (1950) 219 P.2d 457, 35 Cal.2d 550.

Prohibition restrains acts in excess of jurisdic? tion. Travelers Ins. Co. v. Superior Court'For Kern County (1977) 135 Cal.Rptr. 579, 65 Cal. App.3d 751; Cook v. Superior Court for San

515

§ 1 1 0 2 Note 48 Diego County (1971).97 Cal.Rptr. 189, !9 Cal. App.3d 832; People v. Bucher (1959) 346 P.2d 202, 175 Cal.App.2d 343.

Prohibition runs only against excess of juris­diction of court. Olympic Auditorium v. Supe­rior Court in and for Los Angeles County (1927) 253 P. 944, 81 Cal.App. 283; Harris v. Superior Court of Sacramento County (1921) 196 P. 895, 51 Cal.App. 15; In re Turner's Estate (1918) 172 P. 759, 178 Cal. 95.

Acts which exceed the defined'; power of a court in any instance, whether that power be defined by constitutional provision, express stat­utory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are acts in "excess of jurisdiction." Wozniak v. Lucutz (App. 2 Dist. 2002) 126 Call Rptr.2d 310, 102 CaI.App.4th 1031. Courts ©= 40

Act is "in excess" of jurisdiction, such that prohibition will lie, if act exceeds defined power of court or other tribunal in any instance, whether that power, be defined by constitutional provisions, express statutory declaration, or rules developed by courts and followed under doctrine of stare decisis. Agricultural Labor Relations^Bd. v. Superior Court (App. 6 Dist. 1994) 34 CaI.Rptr.2d 546, 29 Cal.App.4th 688, rehearing denied. Prohibition®3' 10(1)

A writ of prohibition with respect to a local court rule or policy respecting prehearing medi­ation of child custody and visitation disputes in marital dissolution proceedings would lie if the infirmities in the policy reflected an excess of jurisdiction, but since enforcement of the policy would be reversible error, but not for want of jurisdiction, the appropriate remedy is a writ of mandate. McLaughlin v. Superior Court for San Mateo County (App. 1 Dist. 1983) 189 Cal. Rptr. 479, 140 Cal.App.3d 473. Mandamus ©= 29; Prohibition @=» 10(2)

If court acts without or in excess of its juris­diction prohibition is the proper remedy to ar­rest the proceedings of the court. Los Angeles County v. Superior;- Court for Los Angeles Coun­ty (App. 2 Dist. 1967) 62 Cal.Rptr. 435, 253 Cal.App.2d 670. Prohibition <S= 10(1)

Trial of an action which involves determina­tion of title to real property in another state is beyond jurisdiction of Californiasuperior court and prohibition will lie to prevent trial thereof. River Farms, Inc. v. Superior Court of San Bernardino County (App. 4 Dist. 1967) 60 Cal. Rptr. 665, 252 Cal.App.2d 604. Courts ®=> 18; Prohibition ©=> 10(2)

Generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, expressed statutory declaration or rules devel­oped by courts and followed under the doctrine of.stare decisis, are in excess of "jurisdiction,"

SPECIAL PROCEEDINGS Part' 3

in so far as that term is used to indicate what acts may be restrained by prohibition. City and County of San Francisco v. Superior Court of City and County of San Francisco (1959) 1 Cal.Rptr. 158, 53 Cal.2d 236, 347 P.2d 294. Prohibition ©= 10(1)

A court acts in excess of its jurisdiction, as that term is used in determining whether writ of prohibition will'issue, if'it acts in violation of a statute defining its powers. Kennaley v. Superi­or Court, County of San Mateo (1954) 43 Cal.2d 512, 275 P.2d 1. Prohibitions 10(1) -

A'writ of prohibition may issue, if there is no other adequate remedy and the lower court is proceeding in excess of its jurisdiction. Kenna­ley v. Superior Court, County of San Mateo (1954) 43 Cal.2d 512, 275 P.2d 1. Prohibition ©=3(1); Prohibition ©= 10(1)

One of the essentials to the issuanceof a writ of prohibition is that the party against whom it is directed is threatening to perform an act in excess of its jurisdiction. -Blache v. Superior Court in and for City and County of San Fran­cisco (App. 1 Dist. 1939) 35 Cal.App.2d 740, 96 P.2d970. Prohibition ®= 10(1)

Prohibition lies only when a court, board, or tribunal proposes to act in excess of its jurisdic­tion, and mere error does not warrant issuance. Nider v. Homan (App. 1939) 32 Cal.App.2d.21, 89 P.2d 135. Prohibition ®= 10(1); Prohibition <S=> 11

Prohibition lies to a court only to determine whether it has acted in excess of its jurisdiction. Western Meat Co..y Superior Court of Sacra­mento County (App. 1908) 9 Cal.App. 538, 99 P. 976. Prohibition *» 9

49. Inferior courts, excess of jurisdiction A writ of prohibition will not issue where the

lower tribunal .is not proceeding without. or..in excess of its jurisdiction. Davis v. Superior Court in and for Los Angeles County (1950) 213 P.2d 527, 95 Cal.App.2d 586; Rausch v. Superi­or Court in and for Los Angeles County (1940) 105 P.2d 627, 40 Cal.App.2d 707;" Raine v. Lawlor (1905) 82,P. 688,. 1 Cal.App. 483.

The writ will issue only in cases of usurpation of power or jurisdiction by an inferior court. Broder v. Superior Court of Mono County (1894) 37 P. 191/103 Cal. 124; Coker v. Superi­or Court of Colusa County (1881) 58 Cal. 177, 8 P.C.LJ. 264.

Writ of1 prohibition directed against superior court will not be granted in the absence of a showing that the superior court is proceeding in excess of its lawful jurisdiction. McMorry v. Superior Court of California in and .for Sutter County (1921) 201 P. 797, 54 CaLApp. 76; Rihdge Co. v. Superior Court of Los Angeles 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 ap­

propriateness 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 ordi­

nance 83-86 In general 83 Criminal proceedings 84 Eminent domain 85 Taxation proceedings 86

Construction and application 81 Contempt 88 '*' Criminal proceedings, constitutionality or va­

lidity 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 prosecu­

tions 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 prosecu­

tions 97 Proceedings before grand jury, criminal!prose­

cutions 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 valid­

ity of statute or ordinance 86 Venue 109 Violation of speedy trial rights, criminal prose­

cutions 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

WRITS OF REVIEW Title 1 'district from exercising its right of eminent do­main in acquiring a school site. Town of Ather-ton 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)

82. Conflict with legislative functions, grounds for relief

Where claim of legislative immunity was made by members of legislature in trial court and denied, writ of prohibition restraining trial court from proceeding against them in civil lawsuit was proper remedy. Harrher v. Superi­or Court In and For Sacramento County (App. 3 Dist. 1969) 79 Cal.Rptr. 855, 275 Cal.App.2d 345. Prohibition *=» 10(2)

Where demurrer to complaint charging as­sault and battery raised question of defendant's legislative immunity, and demurrer was over­ruled, prohibition was an appropriate remedy to prevent,subjection of defendant to harassment and expense of defending himself in trial in civil proceeding. Allen v. Superior Court In and For 'San Diego County (App. 1959) 171 Cal.App.2d 444, 340 P.2d 1030. ^Prohibition ©=> 5(3)

Prohibition was appropriate remedy to re­strain superior court from enjoining board of supervisors of county from certifying to the .leg­islature a proposed freeholders' charter adopted by the voters of the county, where action of superior court was an interference with the legislative functions of the board of supervisors. Santa Clara County v. Superior Court in and for Santa Clara County (1949) 33 Cal.2d 552, 203 P.2d 1. Prohibition <£= 10(2)

The writ of prohibition ought not to issue to arrest the:progress of any legislation pending in a board authorized by the laws to legislate with respect to matters of public interest: Spring Val. Waterworks v. City and County of San Francisco (1877) 52 Cal. 111. Prohibition <3= 6(1)

5

§ 1 1 0 2 Note 84

83. Constitutionality or validity of statute or ordinance, grounds for relief—In 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 Court of-Los Angeles County (1946) 28 Cal.2d 481, 171 P.2d21.' Prohibition <&> 9

Prohibition is not unavailable as remedy to test constitutionality of statute or ordinance on ground that application of theory that constitu­tionality goes to jurisdiction might render other­wise final judgments subject to collateral attack. 'Rescue Army v. Municipal-Court of City of Los Angeles (1946) 28 Cal.2d 460, 171'P.2d 8, ap­peal dismissed 67 S.Ct. !1409, 331 U.S. 549, 91 L.Ed. 1666. Judgment «=» 489

The constitutionality of a statute or ordinance may be tested by prohibition on ground that invalidity of legislation goes to jurisdiction of court to proceed to'try case. Rescue Army v. Municipal Court of City of Los Angeles (1946) 28 Cal.2d 460, 171 P,2d?8, appeal'dismissed 67 S.Ct. 1409, 331'U.S. 549, 91 L;Ed. 1666. Prohi­bition <3=> 10(1)

Alleged unconstitutionality of section of act was not ground for writ of prohibition; trial court not being thereby deprived of jurisdiction and remedy being afforded by appeal. Bray v. Superior Court, in and for Siskiyou County (App. 3 Dist. 1928) 92 Cal.App. 428, 268 P. 1081. Prohibition @=> 3(2)

84. —— Criminal proceedings, constitutional­ity or validity of statute or ordinance, grounds for relief

A petition for a writ of prohibition is a proper procedural means by which to challenge as un­constitutional on its face a statute or ordinance under which criminal charges are being prose­cuted. Chambers v. Municipal Court for Oak­land-Piedmont Judicial'JJist., Alameda County

19

§ 1 1 0 2 Note. 84 (1977) 135 Cal.Rptr. 695, !65 Cal.App.3d 904; Dillon v. Municipal Court for Monterey-Carmel Judicial Dist. of Monterey County (1971) 94 Cal.Rptr. 777, 484 P.2d 945, 4 Cal.3d 860.

Prohibition is a proper remedy to restrain a court from a proceeding with a trial where it is conceded that trial court threatens to, and will unless prohibited, proceed with trial of defen­dant on charge of violating municipal code sec­tion which under law does not state public offense. Mier v. Municipal Court of Culver Judicial Dist. (1963) 27 Cal.Rptr. 602, 211 Cal. App.2d 470; Whitney v. Municipal Court of City and County of San Francisco (1962) 27 Cal. Rptr. '16, 377 P.2d 80, 58 Cal.2d 907.

Where criminal statute or ordinance sought to be enforced is alleged to be unconstitutional on its face, petition for writ of prohibition is appro­priate method of seeking relief. Morris v. Mu­nicipal Court for San Jose-Milpitas Judicial Dist. of Santa Clara County (1982) 186 Cal. Rptr. 494,32 Cal.3d 553, 652 P.2d 51. Prohibi­tion®^ 9

•Prohibition was available-to restrain justice court from proceeding in a criminal action on ground of unconstitutionality of county ordi­nance. Chavez v. Municipal Court of Visalia Judicial Dist. (App. 5 Dist. 1967) 64 Cal.Rptr. 76, 256 Cal.App.2d 149. Prohibition <S= 10(3)

Prohibition was a proper remedy to challenge constitutionality of a statute under which plain­tiff was being prosecuted. Canon v. Justice Court for Lake Valley Jud. Dist. of El Dorado County (1964) 39 Cal.Rptr. 228, 61 Cal.2d 446, 393 P.2d 428. Prohibition <3=> 9

Contentions of accused that provision of Elec.C. § 12047 under which criminal com­plaint had been filed against him is vague and unreasonably infringes on free speech-free press guarantees of federal and state constitutions might appropriately be considered in prohibi­tion proceeding instituted by accused to prevent justice court from trying him for violating the provision. Canon v. Justice Court for Lake Val­ley Judicial Dist., County of El Dorado (App. 1964) 36 Cal.Rptr. 311, hearing granted, vacat­ed 39 Cal.Rptr. 228, 61*Cal.2d 446, 393 P.2d 428.

Contention that statute which petitioner was found, in municipal court, guilty of having vio­lated, was unconstitutional could and should have been raised upon appeal from judgment of •municipal court and prohibition would not lie to.prohibit court from takingr steps to enforce judgment upon contention that statute was un­constitutional. Schoenfeldt v. Municipal Court of City and County of .San Francisco (App. 1 Dist. 1960) 9 Cal.Rptr."?12, 187 Cal.App.2d 748. Prohibition <&* 3(4) ' 3

Where municipal court determined that it had jurisdiction of- prosecution for violation of rural

SPECIAL PROCEEDINGS Part 3

fire district ordinance and was about to proceed to exercise such jurisdiction, and defendant did not have available to him a plain, speedy, and adequate remedy at law, and contention of de­fendant that ordinance was unconstitutional raised a sufficiently vital question to merit deci­sion, the case was a proper one for remedy of writ of prohibition in superior court. Moore v. Municipal Court of Salinas Judicial Dist, Mon­terey County (App. 1959) 170 Cal.App.2d 548, 339 P.2d 196. Prohibition ©= 10(3)

Where petitioners were charged in municipal court with violation of sections of municipal code, and their demurrer, challenging constitu­tionality of sections, was overruled, refusal of superior court to grant writ of prohibition: re­straining municipal court from trying proceed­ing was not an abuse of discretion in absence of showing that delay caused by trial would preju­dice petitioners' rights, or that they would suffer hardship other than expense ordinarily incident to trial'and appeal especially in view of fact that questions of fact might be involved and 'that defense of unconstitutionality of one section of ordinance might be available as to some of charges and not as to others. Dickenson v. Municipal Court of San Diego Judicial Dist., San Diego County (App. 1958) 162 Cal.App.2d 85, 328 P.2d 32. Prohibition ©= 5(4)

Prohibition would <not lie.to restrain a jus­tice's court of the city of Berkeley from proceed­ing with the trial of petitioner for violation of an ordinance of that city committed within the boundaries of the city, where writ was sought on ground that court was without jurisdiction because complaint failed to state a public of­fense and because portion of ordinance alleged­ly violated was unconstitutional, since court had jurisdiction to proceed with the trial regardless of the grounds set forth. Fels v. Justice's Court of City of Berkeley (App. 1 Dist. 1938) 28 Cal. App.2d 739, 83 P.2d 721. Prohibition ©=> 10(3)

Prohibition was proper remedy to prevent prosecution under unconstitutional ordinance. Lambert v. Municipal Court of Los Angeles County (1960) 3 Cal.Rptr. 168, 349 P.2d 984, 53 Cal.2d 690. Certiorari deniedSl S.Ct. 79, 364 U.S.-847, 5 L.Ed.2d 71; Alves v. Justice Court of Chico Judicial Dist., Butte County (App. 1957) 148 Cal.App.2d 419, 306 P.2d 601.

85. Eminent domain, constitutionality or validity of statute or ordinance, grounds for relief

Although department of public works was precluded from appealing from' interlocutory ruling in eminent domain proceeding .that pro­posed taking was not for public use, department could test validity of Str. & H.C. § 104.1 (re­pealed; see, now, § 1240.410 et seq.) that per­mitted department to condemn whole -of tract 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 reasons for voting for or against the ordinance, since the superior court had only ordered'the supervisors to appear at depositions, and since the challenged order fully preserved the super­visors' right to refuse to answer improperly intrusive questions. City and County of San Francisco v. Superior Court of City andXounty of San Francisco (1975) 120 Cal.Rptr. 730, 13 Cal.3d 933, 534 P.2d 426. Prohibition <3= 5(3)

On petition for writ of prohibition, court could not rule on propriety of future hypotheti­cal order of undeterminable content based on showing yet to be made of facts not yet in existence. Kruly v. Superior Court for Los An­geles County (App. 2'Dist! 1963) 31 Cal.Rptr. 122, 216"Cal.App.2d 589. Prohibition ©=> 28

Prohibition was not necessary to restrain a municipal court from vacating its order allow­ing an amendment increasing the demand* be­yond its jurisdictional limit, and from proceed­ing with a trial of the action, since the superior court was not authorized to assume that the municipal court .would not await a final deter­mination of a petition for writ of review. Tho-masian v. Superior Court In and For City and County of San.Francisco (App. 1953) 122 Cal. App.2d 322, 265 P.2d 165. Prohibition ©=> 27

Where trial court, in divorce action wherein divorced wife sought to recover amounts due under divorce decree, appointed receiver to op­erate business owned by divorced husband and partners who had started separate action for

52

§ 1 1 0 2 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

Writ of prohibition would not lie in favor of petitioner who contended that respondent court, which had jurisdiction to amend its rec­ords so as to cause them to speak the truth, threatened to correct judicial error#, since re­viewing court would not assume that respon­dent court would exceed its jurisdiction, and if it should, the petitioner would have an adequate remedy at law. Passow v. Superior Court of City and County of San Francisco (App. 1 Dist. 1938) 25 Cal.App.2d 89, 76 P.2d 515. Prohibi­tion ©= 3(1)

The writ of prohibition will not issue to pre­vent action on proceedings the birth of which may be prophesied by imagination or hope. Hall v. Superior Court in and for Imperial County (App. 2 Dist. 1924) 70 Cal.App. 393, 233 P. 80, affirmed on rehearing 245 P. 813, re­versed 198 Cal. 373, 245 P. 814. Prohibition ®= 1

88? Contempt, grounds for relief Prohibition was a: proper means of consider­

ing counsel's claims that court lacked'jurisdic-tion to adjudicate him in contempt; habeas corpus or certiorari would also be proper. In re Charbonneau' (App. 2 Dist. 1974) 116 Cal. Rptr. 153, 42 Cal.App.3d 505. Contempt ®=> 67; Habeas Corpus ©=> 528.1; Prohibition •§=• 10(2)

Where husband, granted divorce for wife's extreme cruelty, challenged superior court's ju­risdiction to issue order to show cause why he should not be adjudged guilty of contempt in 1

§ 1 1 0 2 Note 88 failing to comply with order in'divorce decree to make payments to wife for her support at hearing on first citation for contempt and again at hearing on wife's motion, erroneously grant­ed by court, to set aside dismissal of such cita­tion, question of court's jurisdiction -to issue another-such order was adequately drawn to court's attention, so as to entitle husband to writ of. prohibition restraining court from pro­ceeding further on last order without again pre­senting such question'to court. McLaughlin v. Superior Court of State (App. 1954) 128 Cal. App.2d 62, 274 P.2d 745. Prohibition <3= 17

The pendency of equitable action attacking judgment and seeking to restrain enforcement thereof did not preclude issuance of writ of prohibition enjoining court from- taking further proceedings against petitioner for contempt for violation of judgment. aHunter v. Superior Court of Riverside County (Ap*p. 4 Dist. 1939) 36 Cal.App.2d 100, 97 P.2d 492. Prohibition ©= 3(1)

Where order of confinement for contempt had been signed by judge and filed with clerk' a writ of prohibition prohibiting the contempt pro­ceedings was not a proper remedy since there remained ho further judicial act to be per­formed by the court, although ministerial acts by nonjudicial officers were yet to be performed by clerk delivering the order to sheriff and his execution of it. Ames v. Superior Court in and for San Diego County (App. 4 Dist. 1938) 28 •Cal.App.2d 502, 82 P.2d 948. Prohibition <3= 13

A writ of prohibition will be granted to re­strain court from citing petitioner to show cause in contempt proceeding if court is without juris­diction to adjudge petitioner guilty of contempt. Miller v. Superior Court in and for Los Angeles County (1937) 9 Cal.2d 733, 72P.2d.868. Pro­hibition <3=» 10(2)

Prohibition lies to prevent court from sen­tencing petitioner for contempt in failing to answer questions, where excess of jurisdiction was shown. Schuster v. Superior Court in and for Los Angeles County (App. 2 Dist. 1929) 98 Cal.App. 619, 277 P. 509. Prohibition ©=>' 10(2)

Writ of prohibition is available to prevent sentence for contempt, when manifest court will proceed notwithstanding lack of jurisdiction. Merritt v. Superior. Court of California in and for Los Angeles County (App. 2 Dist. 1928) 93 CaLApp. 177, 269 P. 547. Prohibition ®» 10(2)

Further proceedings in contempt without ju­risdiction will be stayed by prohibition, where it is manifest that otherwise court will proceed. Pennell v. Superior Court in and for Los Ange­les County (App. 2 Dist. 1927) 87 Cal.App. 375, 262 P. 48. Prohibition «=» 10(2)

Under this section, prohibition wilbnot lie to restrain.a court from passing judgment of con­tempt where :>it did not appear that the court

SPECIAL PROCEEDINGS Part 3

exceeded its jurisdiction in any respect. Lange v. Superior Court (App. 1909) II Cal.App. I, 103 P. 908.

Where a court, without jurisdiction, adjudges a person guilty of contempt for refusing to com­ply with its decree, but temporarily suspends the execution of the judgment, prohibition is the proper remedy to test the validity thereof. Cos­by v. Superior Court of Los Angeles County (1895) dlO Cal. 45, 42 P. 460. Prohibition ©= 10(2)

89. Criminal prosecutions, grounds for re­lief—In general

On an application for prohibition to stop the trial of an information for assault with intent to commit murder, the fact that the magistrate before whom the preliminary examination took place did not examine, on oath or otherwise, the prosecutor -or any other witness, and did not take- any depositions of any witnesses or of the prosecutor, affords no ground for the relief asked, since the jurisdiction is not affected thereby. Spect v. Superior Court of Colusa County (1881) 59 Cal. 319, 8 P.C.LJ. 58; Mur­phy v. Superior Court of Colusa County (1881) 58 Cal. 520, 8 P.C.LJ. 175.

Writ of prohibition was an appropriate reme­dy to restrain municipal court from complying with superior court order to vacate municipal court's denial of defendant's motion to recuse district attorney's, office. People v. Municipal Court for Sacramento County (App. 3 Dist. 1979) 159 Cal.Rptr. 639, 98 Cal.App.3d 690. .Prohibition <3=> 5(4)

Mandate or prohibition may be allowed be­fore -trial and on- the people's application to rectify such excess of jurisdiction of the trial court because of misinterpretation of-a statute, failure to follow a decision-by court of appeal directly in point or a ruling prohibited or unau­thorized by statute or for an abuse of discretion in vacating a guilty plea. People v. Municipal Court for Central Judicial Dist. of Marin County (App. 1 Dist. 1978) 149 Cal.Rptr. 30, 84 Cal. App.3d 692. Mandamus ©=> 61; Prohibition ®=» I0(3\

Prohibition will issue in a criminal case on a showing of excess of jurisdiction. Castaneda v. Municipal Court In and For City and County of San Francisco (App. 1 Dist. 1972) ,102 Cal.Rptr. 230, 25 Cal.AppJd 588. Prohibition ©= 10(3)

In view of incidental nature of communica­tion involved in presentation of "topless-bot­tomless" entertainment in establishment where alcoholic beverages were sold and need for public regulation inherent in such activity, orig­inal proceeding in court of appeal for, writ of prohibition to restrain municipal court from proceeding further in criminal actions against managing officer for operating business without

522

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. Cas-taneda.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

Where no meritorious point is made against the-jurisdiction of the superior court, prohibi­tion to prevent criminal trial is not available to

'the petitioner. Whitney v. Superior Court of

§ 1 1 0 2 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 already having been com­pleted. Bartollotti v.a 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. 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. War-iburton (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 under indictment for conspiracy, question of accused's-guilt or innocence is not before su­preme court, which cannot consider quantum of evidence necessary to 'sustain conviction, but

523

§ 1102 Note 90 only question whether'grand jurors, as men of ordinary caution or prudence, 'could- conscien­tiously entertain reasonable suspicion that a public offense, in which accused participated, was committed. Weber v. Superior Court in and for Los Angeles County (1950) 35 Cal.2d 68, 216P.2d871. Prohibition ©=28

The supreme court may not interfere with grand jury's discretion in determining whether evidence before them would warrant trial jury's conviction of accused, nor weigh evidence to determine its sufficiency, in prohibition pro­ceeding to restrain superior court from proceed­ing with trial under indictment returned. Web­er v. Superior Court in and for Los Angeles County (1950) 35 Cal.id 68, 216 P.2d 871. Pro­hibition ©= 28

Upon writ of prohibition, an indictment may not be held to be invalid for mere irregularities in impaneling grand jury or in the proceedings leading to indictment. McFarland v. Superior Court in and for Merced County (App. 1 Dist. 1948) 88 Cal.App.2d 153, 198 P.2d 318. Prohi­bition ©=> 11

Participation of judge presiding over grand jury in activities having to do with preliminary investigations, employment of investigators, and publishing^ of attack upon person subsequently indicted by grand jury, which was handed to members of grand jury, was mere irregularity in proceedings leading to return of indictments which were not invalidated thereby. Fitts v. Superior Court in and for Los Angeles' County (1935) 4 Cal.2d 514,.51 P.2d 66. Grand>Jury ©=•33

Misconduct of special counsel before grand Jury was mere irregularity in proceedings lead­ing to return of indictments and insufficient to invalidate indictments and deprive court of ju­risdiction to proceed thereunder. Fitts v. Supe­rior Court in and for Los Angeles County (1935) 4 Cal.2d 514, 51 P.2d 66. Grand Jury <S=» 34

Appearance of unauthorized and- ineligible person before grand jury in violation of statute, while jury was engaged solely in preliminary determination of whether appointment of spe­cial counsel was necessary, did not deprive court of jurisdiction to proceed on indictment returned by such grand jury. Fitts v. Superior Court in and for Los Angeles County (1935) 4 Cal.2d 514,. 51 P.2d 66. Grand Jury ©» 39

Grand" jury which was selected from list which had not been ^prepared in compliance with statute, and which was impaneled by judges who were prejudiced as to type of person to be selected and as to method of selection, and against person subsequently indicted, and who acted out of open court, in impanelment of jury, held de facto grand jury and indictments re­turned thereby were not void. Fitts v. Superior Court in and for Los Angeles County (1935) 4

SPECIAL PROCEEDINGS Part 3

Cal.2d 514, 51 P.2d 66. Indictment And Infor­mation <§=> 10.1(2)

Where defendant was indicted 'for willfully and knowingly" refusing to perform his duty as an election officer, as provided by Pen.C. § 41 (repealed; see, now Elec.C. § 11502), he was not entided to a writ of prohibition to restrain prosecution of such indictment on the ground that he - had appeared before the grand jury under subpoena issued by the district attorney, and testified concerning such offense as a state's witness; defendant being authorized by Pen.C. § 1020, to present such matter as a complete defense to a plea of not guilty. Rebstock v. Superior Court of City and County of San Fran­cisco (1905) 146 Cal. 308, 80 P. 65.

Where defendant had been tried and convict­ed on an indictment that was void, a writ of prohibition willissue to prevent the trial judge from pronouncing sentence or further proceed­ing in the case. Terrill v. Superior Court of Santa Clara County (1899) 6 Cal.Unrep. 398, 60 P. 38, rehearing denied 6 Cal.Unrep. 417, 60 P. 516. Prohibition ®=> 5(4)

Under § 1103 and this section declaring that prohibition lies where there have been proceed­ings "without or in excess" of jurisdiction, and there "is not a plain, speedy, and adequate remedy in the ordinary course of law," the court will be prohibited from proceeding with a trial under anihdic'tment found by a grand jury completed by talesmen selected by an elisor instead of the sheriff. Bruner v. Superior Court of City and County of San Francisco (1891) 92 Cal. 239, 28 P. 341. Prohibition <3= 10(3)

91. — ..• Juvenile proceedings, criminal prose­cutions, grounds for relief

Where juvenile court in which petition had been filed alleging that 17-year-old minor had violated felony statutes did not- find that minor was not amenable to the treatment of the juve­nile court before .ordering that charges be re­ferred to an adult court and tried .under the general law, juvenile's petitions for writ of man­date vacating the order and writ prohibiting criminal proceedings pending, determination of juvenile court proceedings would be granted. M v. Superior Court In and For City and County of San Francisco (App. 1 Dist. 1969) 75 Cal.Rptr. 881, 270 Cal.App.2d 566. Prohibi­tion®? 10(3); Mandamus <= 61

92. Probable cause, criminal prosecu­tions,' grounds for relief

Prohibition is a proper means to test right of prosecution to proceed with trial of charge when validity of' information Is challenged on ground that defendant has been committed without reasonable, or. probable cause. Mardis 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)

93. 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)

94. Jury selection; criminal prosecutions, grounds for relief

Where defendant who claimed to be "Jewish man" sought writ of prohibition against use of jury panel in his trial on ground panel did not contain sufficient people with Spanish names, court's action in sustaining demurrer to petition without leave to amend was proper. Ganz v. Justice Court for Arvin-Lamont Judicial Dist. (App. 5 Dist. 1969) 78 Cal.Rptr. 348, 273 Cal. App-2d 612. Prohibition <3= 25

Petition for writ of prohibition against use of jury panel in particular criminal trial was faulty where it did:not allege that separate class had been discriminated against. Ganz v. Justice Court for Arvin-Lamont Judicial Dist. (App. 5 Dist. 1969) 78 Cal.Rptr. 348, 273 Cal.App.2d 612. Prohibition «=» 20

95. Invalid' orders, criminal prosecu­tions, grounds for relief

Defendants in a criminal prosecution were entitled to a writ of prohibition preventing pro­ceedings under an invalid order requiring de-

§ 1 1 0 2 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)

96. 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)

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 judg­ment was entered, writ of prohibition to re­strain enforcement of judgment would be re­fused as an* exception to the general rule. McAllister v. Superior Court in and for Alameda County (App. 1 Dist. 1938) 28 Cal.App.2d 160, 82 P.2d 462. Judgment <3=> 476; Prohibition <3= 5(4)

Trial for robbery can be ; halted .by writ; of prohibition if had before trial as to sanity which had been ordered under Pen.C., § 1368, in view of § 1085 and this section. People v. Grace (App. 2 Dist...l926) 77 Cal.App. 752, 247 P. 585. Prohibition <S= 5(4)

Error in that proceedings to remove an officer under Pen.C. § 772 (repealed 1929), were enti­tled in the name of the accuser, instead of in the name of the people, being amendable, does not defeat jurisdiction so as to entitle the officer to a writ of prohibition, which under § 1103 and this section, lies only when the tribunal to which it is addressed is about to act in excess of its jurisdiction. Cline v. Superior Court of Los Angeles County (1920) 184 Cal. 331, 193 P. 929. Officers And Public. Employees ®= 74

525

§ 1 1 0 2 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 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 driv­ing, though judge before discharge ofjury had questioned jury about possible further delibera­tions on included misdemeanor offense and they had indicated that-further deliberations would not he_ productive. Sylvia .v. Superior Court for Trinity County (App. 3 Dist. 1982)'l80" Cal.Rptr. 251, 128 Cal.App.3d 309.' Double Jeopardy ©= 164 ' .„_,

Insofar as the superior court is concerned, the appellate department's' decision remanding the case for a new trial was res judicata on the issue of whether or not the retrial would constitute double jeopardy, and the instant proceedings for writ of prohibition were an improper collat­eral attack on that judgment'in a court at.the same level. Ernst v. Municipal Court of County of Los Angeles, Long Beach Judicial Dist. (App. 2 Dist. 1980) 163 Cal.Rptr. 861, 104 Cal.Ap'p.3d 710. Judgment @=> 518; Judgment @=> 751

Even though the people had no right of ap­peal from order of dismissal on ground that defendant had been once in jeopardy, where court' did not exceed its jurisdiction, the people could not resort to prohibition and mandamus. People v. Superior Court In and For Los Ange­les County (App. 2 Dist. 1963) 31 Cal.Rptr. 710, 217 Cal,App.2d 517. Mandamus @=> 61; Prohi­bition •©=* 5(4)

Where an information' charged the accused with murder, and he was convicted of man­slaughter, and on appeal a new trial was or­dered, the trial court'has'no jurisdiction to try accused for any other crime than that.of man­slaughter, and a writ of prohibition will lie to prevent his trial on the charge of murder. Huntington v. Superior Court of City and Coun-

SPECIAL PROCEEDINGS Part 3

ty of San'Francisco (App. 1907) 5 Cal.App. 288, 90 P. 141. Prohibition ®=> 10(3)

99. 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)

100. Violation of speedy trial rights, criminal prosecutions, grounds for re­lief

An original petition to, j court of appeal for a writ of prohibition was an appropriate remedy following denial in superior, court of a similar petition seeking to restrain municipal court from proceeding with a trial assertedly set in violation of petitionees speedy-trial rights; an appeal from denial in superior court of a similar petition was an inadequate remedy because pe­titioner would be subjected to criminal trial while pursuing it. Turner v.~Municipal Court of Oakland-Piedmont Judicial Dist., 'Alameda .County (App. 1 Dist. 1982) 182 Cal.Rptr. 650, 131 Cal.App.3d 643. Prohibition <3= 3(4)

101. Lack of prosecution, grounds for relief Where municipal court lacked jurisdiction to

proceed with prosecution due to its abatement, prohibition against such action was suitable remedy. Charrot v. Municipal Court of Los Angeles Judicial Dist., Los Angeles County (App. 2 Dist. 1968) 66 Cal.Rptr. 903, 260 Cal.App.2d 208. Prohibition^ 10(3)

Petition to restrain superior court from hear­ing further proceedings in personal injury ac­tion on ground_of lack of prosecution would be

'denied, where,record of proceedings before su­perior court was lacking. Huson v. Superior Court of Orange County (App. 4 Dist. 1963) 33 Cal.Rptr. 568, 220 Cal.App.2d440. Prohibition ©=27

Where plaintiff instituted suit to enjoin en­forcement of' the. caravan act and;, pursuant to stipulation and court order paid to motor vehi-

526

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 orphaned grandchildren were entitled to per­emptory writ of prohibition restraining superior court in and- for county in which paternal grandparents who also sought adoption resided until completion of hearing for adoption in* county of maternal grandparents' residence where adoption proceeding was first'brought. Morrisette v. Superior Court In and For Kern County (App. 5 Dist. 1965) 46 Cal.Rptr. 153, 236 Cal.App.2d 597. Prohibition <S=> 5(3)

District court of appeal would not grant pro­hibition to restrain superior court of one county from proceeding in husband's divorce action due to pendency of wife's prior separate mainte­nance action which husband apparently claimed unmeritorious because of a reconcilia­tion where record was devoid of any evidence of effort to first seek remedy in lower courts or to apply to court in which divorce action was pending to yield to prior jurisdiction of other court, and district court of .appeal would'not engage itself in determining question of recon­ciliation. Howell v. Superior Court In and For San Bernardino County (App. 4 Dist. 1962) 27 Cal.Rptr. 149, 211 Cal.App.2d 487. Prohibition *»3(1)

Prohibition and not mandamus was appropri­ate remedy to bar industrial accident commis­sion from proceeding with adjustment of claim where superior court had previously taken juris­diction of injury action involving same injuries, until court would make final determination,.of jurisdiction. Scott v. Industrial Ace. Commis­sion (1956) 46 Cal.2d 76, 293 P.2d 18. Manda­mus*^ 3(1)

Where personal injury action was brought in superior court, and defendant therein^ and its compensation carrier subsequently invoked ju­risdiction of industrial accident commission by filing for adjustment of claim arising out* of same personal injuries, prohibition would .issue against commission to bar it from proceeding before superior court made final determination of controlling jurisdictional' question. Scott v. Industrial Ace. Commission (1956) 46 Cal.2d 76, 293 P.2d 18. Prohibition ®= 6(2)

In determining whether writ of prohibition should issue to stay proceedings in action by

§ 1 1 0 2 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

In prohibition proceeding to prevent trial court from setting aside judgment quieting titles to mining claims, which had been entered pur­suant to direction of appellate court, and from entertaining motion for new trial or interfering with the right to restitution and possession, district court of appeal could not interfere with regular trial and determination of separate is­sues involved in another suit wherein plaintiff was seeking to establish an easement for the use of pipe-line across mining claim, since the other suit should be decided on its own merits. Kramer v. Superior Court in and for Calaveras County (App. 3 Dist. 1939)' 35 Cal.App.2d 239, 95 P.2d 158. Prohibition ©=> 28

f Prohibition will not issue to restrain trial of action for cancellation of assignment of permit to prospect for oil and gas and to quiet title to land embraced in permit, where court had juris­diction1 of subject-matter and parties merely-be-cause permit had been contested by thikl party, and contest was pending in department of inte­rior. Barker v. Superior Court in and for Los Angeles County (App. 1934) 139 Cal.App. 137, 33 P.2d 442. Prohibition <3= 10(2)

Where respondent court had not passed oh question of another action- pending) district court of appeal, in prohibition proceeding, would not consider question.- Hewitt v. Jus­tice's Court of Brooklyn Tp. (App. 1 Dist. 1933) 131 Cal.App. 439, 21 P.2d 641. Prohibition @= 28

On application to enjoin enforcement of an injunction pendente lite, allegation that the court was without authority to issue restraining order, as complaint was insufficiently'verified, was no longer available, where the restraining order was supplanted by aL preliminary injunc­tion, based on a verified complaint. City of Los Angeles v. Superior Court of Los Angeles Coun­ty (1925) 196 Cal. 445, 238 P. 670. Prohibition €=*28

That trial court considered affidavits filed at date set for continuance of hearing of motion for injunction pendente lite, containing matter part of the original showing, which plaintiffs should have served two days prior to'the date first fixed for hearing, was simply error in the

527

WRITS OF REVIEW Title 1 57 Cal.App. 31, 206 P. 496; Prohibition «3=> -10(2)

117. Void judgments or orders, grounds for relief

Where an order of sale is void on its face, prohibition does not lie to prevent its execution, since a purchaser would take no title; and could be treated as a trespasser. Woodward v. Supe­rior Court of City and County of San Francisco (Sup.1892) 30 P. 537; Woodward v. Superior Court of City and County of San Francisco (1892) 30 P,535,,95 Cal. 272.

Writ of prohibition would issue to prohibit superior court from giving effect to its void order in personal injury action authorizing'pay­ment to attorney, who had been discharged by plaintiff," of moneys deposited in court for pay-

.rnent of judgment for plaintiff. Hendricks v. Superior Court In and For City and County of San Francisco (App. 1 Dist. 1961) 17 Cal.Rptr. 364, 197 Cal.App.2d 586. Prohibition "2=* 10(2)

Where petitioner sought to restrain further judicial action based upon a void order, prohibi­tion was proper remedy. City of San Diego v. Superior Court in and for San Diego County (1950) 36 Cal.2d 483, 224 P.2d 685. Prohibi­tion <s=s 9

Whether judgment was void on its face was required to be determined from inspection of judgment-roll alone, and whether the judgment was subject to summary action of court in pro­hibition proceeding depended upon whether record showed' affirmatively' that court was without jurisdiction. Hunter v. Superior Court of* Riverside County (App. 4 Dist. '1939) 36 Cal. App.2d 100, 97 P.2d 492. Prohibition <3=> 10(1)

While an order of a judge of the superior court of the city and county of San Francisco, other than the presiding judge, transferring a case from one department to another, may be irregular, it is not void, and prohibition will not lie to prevent a hearing of the case by the department to which it is transferred, on 'the ground that it is exceeding its jurisdiction Brad­ley v! Van Nostrand (App. 1 Dist. 1922) 189 Cal. 457, 208'P. 690. Prohibition ©= 10(1)

On-prohibition to prevent the execution oft ah order appointing a special administrator, the validity ofan order previously made annulling an order admitting the will to probate, and the validity of the latter order, on which the order appointing the special administrator depends for its validity, may be considered by the court. Dunsmuir v. Coffey (1905) 148 Cal. 137,, 82 P. 682. Prohibition @=> 28

"Where an order of judicial sale was void on its face, prohibition did not lie to prevent its execution. Woodward v. Superior Court of City and County of. San Francisco (1892) 95 Cal. 272, 30 P. 535. Judicial Sales ®= 14

§ 1 1 0 2 Note 119

Prohibition is_ proper remedy where trial court has made void order granting motion for new trial. Bank of America Nat. Trust & Sav. Ass'n v. Superior Court In and For Kern County (App. 1931) 115 Cal.App. 454, 1 P.2d 1081. Prohibition •&=> 1"

* 118. Arbitration, judgments or orders,

grounds for relief ** Mandate or prohibition is available to review

orders directing parties to arbitrate if the mat­ters ordered arbitrated fall clearly outside the scope of the arbitration agreement or if the arbitration would appear to be unduly time con­suming or expensive. 'Atlas Plastering? Inc. v. Superior Court,-Alameda County-(App. 1 Dist. 1977) 140 Cal.Rptr. 59, 72 Cal.App.3d 63. Mandamus ®=> 60 " r

Since, if court order directing consolidated arbitration proceedings between general con­tractor and a number,of subcontractors was in excess of court's jurisdiction, the expense of the parties in participating in and seeking review of the arbitration would'be great, the order was reviewable by 'mandate or prohibition. Atlas Plastering, 'Inc. v. Superior Court, 'Alameda County (App. 1 Dist. 1977) 140 Cal.Rptr. 59, 72 Cal.App.3d 63. Mandamus <S=> 60 119. Discovery, judgments or orders,

grounds for relief Application for writ of prohibition, and/or

mandate was proper procedure. for_ seeking re­view of order compelling petitionerjyo answer interrogatory calling for disclosure of names and addresses of experts it had consulted with and who might be called to testify at a presently unscheduled trial; matter fell within exception to general rule against interim review of discov­ery orders since it involved a matter of first impression as to scope of the attorney's work-

' product privilege. South Tahoe Public Utility Dist. v. Superior Court-In and For El Dorado County (App. 3 Dist. 1979) 154 Cal.Rptr. 1, 90 Cal.App.3d 135. Mandamus &=> 32; Prohibition ©-5(3)

While a writ of prohibition is not the favored method of reviewing discovery orders, and while ordinarily the aggrieved party must raise the issue oh direct appeal' from a final judg­ment, the court of appeal may properly enter­tain a petition for extraordinary relief whenjthe petitioning party asserts that to compel ah an­swer would violate a privilege. City^of Long Beach v. Superior Court for. Los Angeles County (App. 2 Dist. 1976) 134 Cal.Rptr. 468, 64 Cal. App.3d 65. Prohibit ionist)

Prerogative writs cansbe used to review dis­covery orders when challenged by the assertion of privileges;,, however,-restraint is to be exer­cised in .issuing such writs., American Mut. Liability Ins. Co. v. Superior Court For Sacra-

535