KIRBY v. GIL MAR CLUB INC

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Court of Appeal, First District, Division 1, California.

Edward J. KIRBY, Director of the Department of Alcoholic Beverage Control of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA CLARA, Respondent; GIL MAR CLUB, INC., dba Chicago Club, Real Party in Interest.

Civ. 26974.

Decided: August 29, 1969

Thomas C. Lynch, Atty. Gen. of California, Dennis M. Eagan, Deputy Atty. Gen., San Francisco, for petitioner. di Leonardo, Blake, Kelly, Aguilar & Leal, Sunnyvale, for real party in interest.

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

This question has been resolved by the case of Department of Alcoholic Bev. Control v. Superior Court, 268 A.C.A. 71, 73 Cal.Rptr. 780. Considering the same arguments here raised, the court concluded (p. 80, 73 Cal.Rptr. p. 786) that the provisions of section 23090.5 ‘divesting the superior courts of jurisdiction to review decisions or orders of the Board or Department or to interfere with the operation or execution of such decisions or orders are constitutional.’ We are in agreement with the rationale of the court and consider the result reached dispositive of the instant proceedings. (See also Department of Alcoholic Bev. Control v. Superior Court, 268 A.C.A. 39, 73 Cal.Rptr. 671; Samson Market Co. v. Kirby, 261 Cal.App.2d 577, 68 Cal.Rptr. 130.)

Let the peremptory writ of prohibition issue.

ELKINGTON, Associate Justice.

MOLINARI, P.J., and SIMS, J., concur. Hearing denied; PETERS, J., dissenting.