ROTH, P. J. I concur and dissent:
I agree that an appeal will not lie.
I do not agree that an application for an extraordinary writ equates with an appeal or that the exclusion of an appeal embraces an exclusion of the right to apply for an extraordinary writ.
I think certiorari lies and I would treat this petition for a writ of mandate as an application for a writ of certiorari.
The meager record before us shows indisputably the following facts:
(1) Section 9884.9, subdivision (a), was complied with; as required, a written estimate was supplied.
(2) Nothing in section 9884.9 requires a written authorization to omit an item included in the written estimate which reduces the amount in the original estimate.
(3) In any event, oral authorization sufficient under the statute was given and is proved by:
(a) the request of the respondent to omit painting; and
(b) respondent’s approval of and payment for the job according to reduced estimate by check concurrently with the delivery of the auto.
Code of Civil Procedure section 1068 provides in pertinent part: “A writ of review may be granted . . . when an inferior tribunal . .. has exceeded the jurisdiction of such tribunal . .. and there is no appeal . .. [or] any plain, speedy, and adequate remedy.”
It is not within the power of a court to disregard undisputed evidence; and/or to fail in all respects to act in accordance with the specific [771]directives of an applicable statute; and/or to substitute or add a condition not required by the applicable statute.
In the case at bench, the net effect of the alleged judgment is to judicially approve the conduct of respondent whereby he obtained repossession of his automobile by delivery of a check he did not intend to pay. A decision so made is not a judgment but is in effect a disposition of a case based upon the exercise of the arbitrary will or the whim and caprice of the judicial officer and amounts to a complete deprivation of a trial.
To ignore uncontradicted evidence certainly equates with a refusal to hear evidence (McClatchy v. Superior Court, 119 Cal. 413 [51 P. 696]). A review by certiorari (Code Civ. Proc., § 1068) is impelled by McClatchy especially when complete disregard of the evidence is aggravated by a total misconception of what the statute required.
In McClatchy, the court refused to hear evidence in a comtempt matter offered to contradict that reflected in a reporter’s transcript. At bench, the court refused to consider any evidence or law contrary to its stated position.
In McClatchy, the court said at pages 418-419: “That the result of this action of the court in thus requiring petitioner, in effect, to submit his defense upon the evidence for the people, was, in substance and effect, to deprive petitioner of the right to be heard in his defense, is, we think, obvious. It is contended by respondent that, even if the action of the court was wrong, it was error merely, which cannot be reviewed on certiorari’, that the court having jurisdiction of the person and subject matter, the mere method in which it exercised such jurisdiction cannot be inquired into in this proceeding, which looks only to the question of jurisdiction. If the premise were correct, the conclusion would undoubtedly follow. But with the view that the action involved no more than mere error we cannot coincide. It was error, certainly, but it was more than that. It was a transgression of a fundamental right guaranteed to every citizen charged with an offense, or whose property is sought to be taken, of being heard before he is condemned to suffer injury. Any departure from those recognized and established requirements of law, however close the apparent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there exists an inceptive lack of power. ‘The substance and not the shadow determines the validity of the exercise of [772]the power.’ (Postal Tel. etc. Co. v. Adams, 155 U.S. 689, 698 [39 L.Ed. 311, 316, 15 S.Ct. 268].)
“While the writ of certiorari is not a writ of error, ‘it is nevertheless,’ as suggested in Schwarz v. Superior Court, 111 Cal. 112 [43 P. 580], ‘a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends not only to the whole of the record of the court below, but even to the evidence itself, when necessary to determine the jurisdictional fact.’
“If, then, by looking at the evidence we can see that the court exceeded its power, we have a right to examine the evidence for that purpose. The evidence and proceedings in this case disclose clearly to our minds such an excess. .. .” (Italics added.)
Traditionally, in cases such as at bench, a writ of review has been allowed as against administrative bodies including an inferior tribunal exercising judicial functions when the procedure did not conform to constitutional or statutory requirements or where its decision was based on a misconception of the law or made arbitrarily and without regard to the evidence.
I would set aside the judgment and require the trial court to enter a judgment in favor of petitioner for the amount of the check. Costs to petitioner.