Lorber v. Storrow

[26]

YORK, J.

These two appeals, which by stipulation and order have been consolidated for decision, are prosecuted from judgments entered after demurrers to complaints charging malicious prosecution were sustained without leave to amend, no application having been made in either case for leave to amend. The act complained of in each case was the filing with the state real estate commissioner by respondent of a verified complaint accusing appellants of misconduct which resulted in hearings before the said commissioner.

The question presented is whether or not a proceeding had before the state real estate commissioner, such as is here shown, is a judicial proceeding upon which an action in malicious prosecution can be predicated.

“The action for malicious prosecution is very ancient. . . . Such action may be defined as one brought for the recovery of 'damages caused by ‘a judicial proceeding instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it’. . . . The wrong to be righted must be based on

a judicial proceeding.” (Hayashida

v.

Kakimoto,

132 Cal. App. 743, 745 [23 Pac. (2d) 311].)

It is now established law in this state, under the rule laid down in

Standard Oil Co.

v

State Board of Equalization,

6 Cal. (2d) 557 [59 Pac. (2d) 119], that a writ of

certiorari

will lie only to review the exercise of judicial functions and that the legislature is without power, in the absence of constitutional provision authorizing the same, to confer judicial functions upon a state-wide administrative agency. In its decision in that case the Supreme Court points out that the matter is primarily regulated by the provisions of section 1, article VI, of the Constitution relating to judicial powers. The cited case has been followed in the eases of