Opinion
Rehearing Denied Dec. 21, 1943.
Hearing Granted Jan. 24, 1944.
Appeal from Superior Court, Los Angeles County; Emmet H. Wilson, Judge.
Mandamus by Seaside Memorial Hospital of Long Beach against California Employment Commission, Henry F. Grady, and others, as members thereof, and R. G. Wagenet as director thereof, and Edith Newby Cope and others, to require the Commission, its members and director to rule that petitioner was not a subject employer within meaning of California Unemployment Insurance Act. Writ issued and Commission, its members and director appeal.
Reversed.
COUNSEL
Robert W. Kenny, Atty. Gen., and Clarence A. Linn, Forrest M. Hill, and Doris
H. Maier, Deputy Attys. Gen., for appellants.
Musick, Burrell & Pinney, of Los Angeles (Howard Burrell, Anson B. Jackson, Jr., and Philip C. Jones, all of Los Angeles, of counsel), for respondent.
Luce, Forward, Lee & Kunzel, of San Diego, amici curiae, for respondent.
OPINION
McCOMB, Justice.
This appeal is from a judgment granting respondent’s application for a writ of mandate to require the California Employment Commission, its members and directors (appellants herein), to rule that respondent was not a subject "employer" within the meaning of the California Unemployment Insurance Act. (Act 8780d, Deering’s Gen. Laws 1937, Supplement 1939 and Supplement, 1941 to the California Codes, General Laws, and Constitution, page 2441 et seq.)
The material facts are:
On March 26, 1942, pursuant to respondent’s (petitioner in the trial court) application, the Superior Court issued an alternative writ of mandate requiring appellants to show cause why they should not (a) rule that respondent was not "an employer" within the meaning of the California Unemployment Insurance Act, and (b) refund all contributions previously paid by respondent to the commission under said act. Subsequently, appellants filed an answer and return to respondent’s petition and the alternative writ issued thereon. On May 25, 1942, subsequent to the filing of appellants’ answer and prior to the submission of the cause to the Superior Court, appellants filed a petition for a writ of prohibition in this court, by which writ it was sought to prohibit further action of the Superior Court in the mandamus proceeding on the ground that said court was without jurisdiction to entertain the same. On May 25, 1942, this court denied said petition for a writ of prohibition without a hearing for the reason that we were of the opinion that appellants (petitioners on the application for a writ of prohibition) had a plain, speedy and adequate remedy at law by appealing from any adverse ruling or decision of the Superior Court. We did not file a written opinion, but made an order which read as follows:
"By the Court:
"Petition for writ of prohibition is denied.
"Moore, P. J."
Appellants urge that in view of the provisions of section 45.10 of the California Unemployment Insurance Act (Act 8780d, Deering’s Supplement (1939) to the Cal. Codes, General Laws and Constitution, page 1717), the Superior Court was without jurisdiction to grant the relief sought by respondent.
This proposition we believe to be tenable and requires us to determine three questions which will be stated and answered hereunder seriatim.
First: Was the order of this court made May 25, 1942, denying, without written opinion, appellants herein application for a writ of prohibition an ex parte proceeding?
This question must be answered in the affirmative. The term ex parte implies an examination of a cause or proceeding in the absence of one or both parties. The fact that the opposite party to a proceeding has notice thereof does not necessarily prevent the action of the court from being ex parte. (See vol. 1 Bouv. Law Dict., Rawle’s Third Rev. (1914), page 1103; Cyclopedic Law Dictionary, Second Edition, (1922) page 374.)
In the present case respondent was served with a petition for a writ of prohibition and filed written objection thereto. However, there was not a hearing and neither party was present when the proposition was considered by the court and the order denying the prayer of the petition made. Such proceeding was obviously an ex parte one.
Second: Was the denial by this court of appellants’ application for a writ of prohibition res judicata on the question of the jurisdiction of the Superior Court to hear and determine respondent’s petition for a writ of mandate?
This question must be answered in the negative, and is governed by this rule:
The denial of an appellate court without written opinion of a petition for a prerogative writ without the court passing upon the merits of the petition does not render res judicata averments in a subsequent petition, which averments are substantially identical with those of the earlier petition. (Funeral Directors Ass’n v. Board of Funeral Directors, 22 Cal.2d 104, 136 P.2d 785.)
Writs of mandamus, prohibition, quo warranto, habeas corpus, and certiorari are prerogative writs. (Cyclopedic Law Dictionary, (1922) page 796; Bouv.Law Dict., Rawle’s Third Rev., vol. 2, (1914), page 2670.
Applying the foregoing rule to the facts of the present case it appears that though appellants’ petition for a writ of prohibition, filed with this court, contained averments relative to the lack of jurisdiction of the Superior Court substantially the same as the issues later presented to the Superior Court and now before this court for decision, the ex parte denial of appellants’ application for a writ of prohibition did not constitute the matters alleged in the petition res judicata because we denied such application without passing upon the merits of the issues subsequently raised in the Superior Court. (See Funeral Directors Ass’n v. Board of Funeral Directors, supra.)
The cases of Reilly v. Police Court, 194 Cal. 375, 228 P. 860; Gubin v. Superior Court, 104 Cal.App. 331, 285 P. 1071, and People v. Hadley, 66 Cal.App. 370, 226 P. 836, relied upon by respondent are factually distinguishable from the present case. (Funeral Directors Ass’n v. Board of Funeral Directors, supra.)
Third: In view of the provisions of section 45.10 of the Unemployment Insurance Act, supra, was the Superior Court without jurisdiction to entertain respondent’s application for a writ of mandate?
This question must be answered in the affirmative. Section 45.10 of the Unemployment Insurance Act, enacted September 19, 1939, reads:
"§ 45.10. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding, in any court against this State or against any officer thereof to prevent or enjoin under this act the collection of any contribution sought to be collected; but after payment of any such contribution under protest, duly verified and setting forth the grounds of objection to the legality of such contribution, the employer paying such contribution may bring an action against the Unemployment Reserves Commission in any court of competent jurisdiction in the county seat of the county wherein the employer maintains his principal place of business for the recovery of contributions so paid under protest. No such action may be instituted more than sixty days after the payment of such contribution, and failure to bring suit within said sixty days shall constitute waiver of any and all demands against this State on account of any alleged overpayment of contributions hereunder, except that such demands may still be prosecuted in accordance with the provisions of section 45.11 of this act. No grounds of illegality of the contribution shall be considered by the court other than those set forth in the protest filed at the time of the payment of the contribution.
"If in any such action judgment is rendered for the plaintiff, the amount of the judgment shall first be credited on any contribution, interest and penalties due from the plaintiff under this act, and the balance of the judgment shall be refunded to the plaintiff from the clearing account. In any such judgment, interest shall be allowed and paid out of the clearing account of the unemployment fund only to the extent that interest and penalties collected under section 45 and 45.3 are available therefor, at the rate of 6 per cent per annum upon the amount of contributions found to have been illegally collected from the date of payment thereof to the date of such credit or refund on account of such judgment." (Italics added.)
The last sentence in the cited section which provides for interest, in our opinion, makes inapplicable the rule in Hopkins v. Southern California Telephone Company, 275 U.S. 393, 399 et seq., 48 S.Ct . 180, 72 L.Ed. 329.
The foregoing statute clearly provides that respondent’s remedy consisted in paying under protest the contribution which had been levied, and thereafter bringing an action against appellant as provided in the statute. Since respondent did not follow the procedure outlined in the statute, the established rule in California applies, to wit, it is a jurisdictional prerequisite to an action for judicial relief that the litigant must first invoke and exhaust an administrative remedy provided by statute. (United States v. Superior Court, 19 Cal.2d 189, 194, 120 P.2d 26; see, also, Metcalf v. County of Los Angeles, Cal.App., 142 P.2d 66.)
Applying the foregoing rule of law to the facts of the instant case, it is apparent that the portion of the foregoing section which we have italicized deprived the Superior Court of jurisdiction to grant the relief respondent sought in its petition for a writ of mandate. The same provision of the Unemployment Act was before this court for construction in the case of Louis Eckert B. Co. v. Unemployment Reserves Commission, 47 Cal.App.2d 844, 119 P.2d 227. In such case we held that the Superior Court was without jurisdiction to grant a declaratory relief judgment in view of the provisions of the Unemployment Insurance Act above quoted. We also held, contrary to respondent’s contention here, that the California Employment Commission had authority to determine whether an employer was subject to the terms and provisions of the California Unemployment Act or not, and that such determination was subject to review only in the manner prescribed by the act. (Louis Eckert B. Co. v. Unemployment Reserves Commission, supra, 47 Cal.App.2d 847, 119 P.2d 227.)
In view of our conclusions, it is unnecessary for us to consider other questions argued by counsel.
For the foregoing reasons, the judgment is reversed.
MOORE, P. J., and W. J. WOOD, J., concur.