Contractors' State License Board v. Superior Court

NOURSE, J. pro tern.

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Petitioner seeks by this proceeding to compel the respondent court to vacate an order made by it restraining petitioner from taking further action in a disciplinary proceeding against real party in interest, Anthony Pools, Inc., hereinafter called “Anthony,” instituted pursuant to article 7, division 3, chapter 9, of the Business and Professions Code.

The relevant facts are: One Bausé instituted an action against Anthony in the respondent court to recover damages for breach, by Anthony, of a contract whereby he had undertaken to erect and construct a swimming pool for Bausé. Anthony answered this complaint and filed a cross-complaint against Bausé. Anthony’s pleadings were filed June 29, 1960. On July 26, 1960, Bausé filed with petitioner an accusation whereby he demanded disciplinary action against Anthony based upon the same breaches of contract as were alleged in his complaint filed in the respondent court, and on the same date an investigator for petitioner filed a complaint with petitioner charging Anthony with having wilfully departed from the plans and specifications for the erection of the swimming pool, alleging in substance the same facts as were alleged in Bausé’s complaint filed in respondent court. Upon being served with this complaint, Anthony, by leave of the court, filed a supplemental cross-complaint in which he joined petitioner as a cross-defendant. In his cross-complaint he alleged in substance the filing of the accusation and complaint against him; that the petitioner had threatened to and would prosecute said complaint, and that said proceeding involved the determination of the same question of fact as was involved in the pending action, to wit: the alleged breach of contract by Anthony, and that the trial of said disciplinary proceedings would foreclose and pervert the process of the court in the pending action.

By the prayer of this supplemental cross-complaint he asked that the court “issue a preliminary injunction pending the trial of the cause on the merits, and at the conclusion of the same make its permanent injunction” enjoining the petitioner from proceeding with the hearing upon the charge or aceusa

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tion filed against Anthony. To this supplemental cross-complaint petitioner filed a general demurrer.

On the day of the hearing of this demurrer, Anthony filed with the court what he entitled “Response to Demurrer to Supplemental Cross-complaint . . . and Request for Stay ...” After argument the court submitted the matter and thereafter entered its order overruling the demurrer and an order reading as follows: “All proceedings before the Contractors’ State License Board upon the accusation filed against defendant herein on or about July 26, 1960, in so far as the same depend upon any alleged breach of defendant’s contracts or guarantees with Lawrence J. Bausé are stayed pending final judgment in this action before this Court.” Petitioner thereupon filed its petition herein and we issued an alternative writ of mandate.