Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.


Civ. 13614.

Decided: September 10, 1942

Silverman & Hindin, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.

This is an appeal by petitioner from an order of the superior court denying a writ of mandate. Respondent, as real estate commissioner of the State of California, after a hearing, on September 19, 1941, made an order suspending the license of petitioner as a real estate broker for a period of ten days from September 29, 1941. On October 23, 1941, an order was issued by respondent ordering petitioner to show cause on November 5, 1941, why his license should not be suspended or revoked for the reason that he had continued to operate as a real estate broker during the ten days in which his license had been suspended. By stipulation and because of the present appeal respondent has continued the hearing on the order to show cause issued on October 23, 1941. In his petition appellant alleges that the findings and order of September 19, 1941, are not supported by any sufficient or competent evidence, that the order is void and that respondent has exceeded his authority and jurisdiction in making the order of suspension.

No appearance was made by respondent in the court below. Attached to the amended petition was a transcript of the proceedings before respondent. The trial court received no evidence and did not conduct a hearing or trial de novo but upon reading the petition and the transcript attached thereto made the following minute order: “The Court having read and considered the entire record of the evidence introduced and the proceedings had before respondent, finds that there is sufficient competent evidence to sustain the decision and the implied findings of respondent and the order suspending petitioner's license and finds no reason for annulling said order. The petition for a writ of mandate is denied.”

Subsequent to the making of the order from which the appeal is being prosecuted the Supreme Court of California rendered its decision in Laisne v. California St. Bd. of Optometry, 19 Cal.2d 831, 844, 123 P.2d 457, a case in which the petitioner sought to have annulled an order of a state board which had revoked a certificate of registration to practice optometry. The court held that, “if the order is questioned in a court of law, then under the Constitution of this state the petitioner must be given a trial de novo on the issues involved.” 19 Cal.2d 831, 844, 123 P.2d 457, 465. This ruling is binding upon the present appeal. But respondent contends that the question has become moot, since petitioner was suspended for a period of only ten days and this period has long since elapsed. This contention cannot be sustained, for there must be taken into consideration the fact that respondent has issued an order to show cause for the alleged violation of the original order of suspension and the hearing on the second order is still awaiting the outcome of the present appeal. Clearly, if the original order was without legal justification petitioner cannot be subjected to the revocation of his license for violation of its terms. An affirmance of the order from which the appeal is now prosecuted would leave petitioner in the situation where, without his day in court, he would be bound by an order which he claims to be void and which would subject him to punishment for its violation. If a judgment which is left unreversed will prejudice the party against whom it is rendered as to an act vital to his rights it cannot properly be held that the question before the reviewing court is moot. Hartke v. Abbott, 106 Cal.App. 388, 289 P. 206; 4 C.J. 576; 4 C.J.S., Appeal and Error, § 1354; Clarke v. Beadle County, 40 S.D. 597, 169 N.W. 23. The question now before us has not become completely moot.

From the foregoing it is apparent that the order appealed from must be reversed insofar as it is applicable to the order made by respondent on September 19, 1941. A different situation is presented by petitioner's contention that the order to show cause issued on October 23, 1941, should be annulled, for petitioner's contention runs counter to the rule that petitioner must exhaust his administrative remedies before seeking the aid of the court. Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715. No hearing has been held by respondent on this order to show cause. Respondent has shown no disposition to conduct such hearing during the pendency of this appeal and it is apparent that petitioner's rights will be safeguarded.

The order is reversed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concurred.