# Sipper v. Urban

> California Supreme Court · May 3, 1943 · 22 Cal. 2d 138

URL: https://www.frixlaw.com/law-library/cases/9566791

## Case

- **Full name:** ALBERT ABRAHAM SIPPER, Appellant, v. CLARENCE URBAN, as Real Estate Commissioner, Etc., Respondent
- **Court:** California Supreme Court
- **Decided:** May 3, 1943
- **Citations:** 22 Cal. 2d 138; 137 P.2d 425; 1943 Cal. LEXIS 170
- **Precedential status:** Published
- **Opinion:** Concurrence by Traynor
- **Judges:** Shenk, Traynor
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

TRAYNOR, J.
I concur in the judgment.
The California Real Estate Act, section 12(b), provides that judicial review of decisions of the Real Estate Commissioner shall be by writ of review as defined in Code of Civil Procedure, part III, title I, chapter 1. (Deering’s Gen. Laws, vol. I, p. 30.) So long as this procedure is not held unconstitutional the present proceeding in mandamus should be dismissed as unwarranted under the Real Estate Act. In any event, this case cannot be fitted into the new mandamus proceeding to restore a suspended license. The period of suspension had expired when the proceedings were begun, and the petitioner could not therefore pray for a restoration of *142 his license. He originally prayed to have the record of the commissioner expunged. When the second proceeding was undertaken to suspend further or revoke his license because of his alleged disregard of the first suspension, he brought an action in the nature of a bill to enjoin the further proceedings, constrained into the form of a mandamus proceeding, setting forth that the decision of the commissioner in the first proceeding to suspend his license was erroneous on issues of fact. No decision was reached in the second proceeding. The majority opinion assumes that the only issue is the correctness of the commissioner’s decision in the first proceeding.
The petitioner demanded the privilege of introducing additional evidence, but the trial court acted exclusively on the record of evidence taken by the commissioner and 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 writ of mandate is denied.” The majority opinion holds that the superior court judge had discretion to deny an alternative writ of mandamus when he found that there was sufficient competent evidence in the record before the commissioner to support his findings and order, and that he thus had discretion to grant a review that has the scope of a certiorari review. The present decision is contrary to that in Laisne v. California State Board of Optometry, 19 Cal.2d 831 [ 123 P.2d 457 ], where the trial judge was reversed for not admitting new evidence, even though he found sufficient evidence in the administrative record to support the findings and order.
It is clear from the majority opinion that had the review in the present ease been by certiorari as required by the Real Estate Act the result would have been the same—the commissioner’s decision would have been sustained on the ground that there was sufficient evidence in his record to sustain his decision. It is therefore unnecessary to dissent from the judgment.
Gibson, C. J., and Edmonds, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9566791. Public record. Not legal advice.