Shernoff v. Superior Court

Opinion

FLEMING, Acting P. J.—

Petitioners, plaintiffs in a class action for damages against numerous California title insurers on allegations of a conspiracy to fix title insurance rates, seek a writ of mandate to compel the superior court to dissolve a stay of proceedings issued in April 1973 several months after the filing of the complaint.

The superior court premised its stay on a theory of primary jurisdiction, a

theory

which assumed that

for

reasons of comity the

Insurance

Commissioner should, be given the first opportunity to act on the rate-fixing allegations. Simultaneously with the stay, the superior court overruled the title insurers’ general demurrer, thereby rejecting their argument that because of petitioners’ failure to exhaust administrative remedies the court lacked jurisdiction over the action.

(E. B. Ackerman Importing Co.

v.

City of Los Angeles,

61 Cal.2d 595, 600 [39 Cal.Rptr. 726, 394 P.2d 566].) Thereafter in August 1973, petitioners submitted a formal complaint to the Insurance Commissioner charging rate-fixing by the title insurers.

In April 1974 the superior court renewed its stay pending a further review 150 days thence if the commissioner had not acted by that time: “Since the investigation by the Commissioner is in progress and actively being pursued, the stay of proceedings will continue until further order of the Court. The Court requests that if the Commission[er]’s investigation is not completed within 150 days of this order that a status report be filed with the Court in order to assist the Court in reviewing the advisability at that time, of entering the stay of these proceedings.”

In July 1974 this court denied a writ of mandate to vacate the stay order, but in September 1974 the Supreme Court directed us to issue an alternative writ to consider vacation of the stay.

Thereafter in November 1974 the Insurance Commissioner informed the superior court that his department would not conduct a formal administrative hearing into the rate-fixing charges.

More than 150 days have elapsed since the last action of the superior court, the Insurance Commissioner has formally declined to initiate proceedings, and the professed justification for the superior court’s stay