People v. Superior Court

EDMONDS, J.

Aside from the question as to whether the state is liable for a tort committed in the operation of the Belt Line Railroad, I am of the opinion that prohibition is not an appropriate remedy. Upon that ground I concur in the judgment.

A writ of prohibition may issue only where a lower tribunal acts without or in excess of its jurisdiction, and there is not a plain, speedy, and adequate remedy in the ordinary course of law. (Code of Civ. Proc., §§ 1102, 1103.) “It is the universal rule that mere error, irregularity, or mistake in the *764 proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, and that a writ of prohibition never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it; or, as it has sometimes been said, the writ of prohibition cannot be converted into, or made to serve the purpose of, an appeal, writ of error, or writ of review to undo what already has been done. This is true both because there has been no usurpation or abuse of power and because there exist other adequate remedies. Thus, when jurisdiction is clear, an erroneous decision in ruling on the sufficiency of the petition or complaint, or on a motion to dismiss, or on «natters of defense, or in rendering judgment, is not ground for a writ of prohibition.” (42 Am.Jur. 165, 166; see Lord v. Superior Court, 27 Cal.2d 855 [ 168 P.2d 14 ]; Howard v. Superior Court, 25 Cal.2d 784 [ 154 P.2d 849 ]; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627 [ 150 P.2d 881 ] ; Redlands etc. Sch. Dist. v. Superior Court, 20 Cal.2d 348 [ 125 P.2d 490 ] ; Abelleira v. District Court of Appeal, 17 Cal.2d 280 [ 109 P.2d 942 , 132 A.L.R. 715 ] ; Fortenbury v. Superior Court, 16 Cal.2d 405 [ 106 P.2d 411 ] ; Van Hoosear v. Railroad Commission, 189 Cal. 228 [ 207 P. 903 ] ; 21 Cal.Jur., Prohibition, §§ 4, 9, 10.)

In the Redlands School District ease, certiorari was denied, the court holding: “Where, as here, the statute does not restrict the power of the court but merely sets up a condition precedent to the establishment of the plaintiff’s cause of action, we think the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.” ( 20 Cal.2d 360 .) The court held in Imperial Beverage Co. v. Superior Court, supra, that although a trial court may have erred in granting a second motion to stay proceedings, based on the same state of facts as the first motion, the second order was valid, until revoked, and was not in excess of the jurisdiction of the court. And in Howard v. Superior Court, supra, in a proceeding to review an order of the probate court vacating an allowance of attorney’s fees, it was held that the alleged lack of a sufficient affidavit of merits, inadequacy of the showing of mistake, and insufficiency of proposed objections to the allowance of fees, did not affect the court’s jurisdiction to act on the motions, but merely indicated the possibility of error in the exercise of jurisdiction. Assuming that the court should have decided that the mistake was due to a *765 negligent failure to ascertain the facts, this court decided, the error could be reviewed only on appeal.

In the present proceeding, the trial court has not finally ruled upon the issue as to whether the state, as a sovereign entity, may be subjected to liability for the alleged tort, and, in my opinion, that court retains jurisdiction to rule upon the question. If it rules erroneously, the error may be corrected upon appeal. But an extraordinary writ should not lie, in the usual case, to make certain that a trial court will apply correct legal principles, and to allow prohibition would afford the petitioner a means of appealing from an order overruling a demurrer. Furthermore, by overruling the demurrer, the trial court has indicated that it would rule in accordance with the holding of the majority opinion upon the issue of tort liability. But assuming that the trial court would commit error and decline to subject the state to liability, as stated in Ballentine v. Superior Court, 26 Cal.2d 254, 260 [ 158 P.2d 14 ], “We cannot presume, on prohibition, that the trial court will commit error. Since there is a lawful way in which the court can proceed it would be improper to assume that it intends to proceed unlawfully. Prohibition is not available in such circumstances.’’ (See Lord v. Superior Court, supra, p. 858.)

This court has said, “Speaking generally, any 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 in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.” (Abelleira v. District Court of Appeal, supra, p. 291.) The cases cited in the majority opinion for the proposition that prohibition is the proper remedy are distinguishable upon the grounds that, in each of them, the court’s power was limited by the federal Constitution and the question of whether the defense of sovereign immunity from suits presents a jurisdictional question, in the sense that such suits may be halted by prohibition as that remedy has been restricted by statute, was not involved.

For these reasons, in my opinion, prohibition is not a proper remedy.