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

CIRO'S OF SAN FRANCISCO, a corporation, Petitioner and Appellant, v. STATE BOARD OF EQUALIZATION OF THE STATE OF CALIFORNIA, Respondent.

No. 16913.

Decided: July 13, 1956

James Martin MacInnis, Harry P. Glassman, San Francisco, for appellants. Edmund G. Brown, Atty. Gen., Charles A. Barrett, Deputy Atty. Gen., for respondent.

This is a motion by the attorney general to terminate the stay of execution granted by this court on July 28, 1955, to appellant under the discretionary power granted by section 1094.5(f) of the Code of Civil Procedure. Under that section there can be no doubt that this court possesses the discretionary power to terminate the stay at any time that the court is convinced that the continuance of the stay is against the public interest. Bogart v. Board of Medical Examiners, 99 Cal.App.2d 170, 221 P.2d 168; West Coast, etc., Co. v. Contractors', etc., Board, 68 Cal.App.2d 1, 155 P.2d 863; § 1094.5(f) of Code of Civ.Proc.

Respondent has made a prima facie showing that the continuance of the stay would be against the public interest. Appellant has not seen fit to file opposition to the motion, nor, although given the opportunity, to appear before the court at an informal hearing for the purpose of opposing the motion. The facts of the case are fully set forth in our opinion filed June 28, 1956, Ciro's of San Francisco v. State Board of Equalization, Cal.App., 299 P.2d 703. From the facts set forth, and for the reasons set forth in the motion, it is our opinion that the continuance of the stay would violate public morals and public welfare, and would be against the public interest. For that reason the stay is terminated, such termination to become effective at the close of business today, Friday, July 13, 1956. It is so ordered.

PETERS, Presiding Justice.

FRED B. WOOD, J., and AGEE, J. pro tem., concur.

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