West Romaine Corp. v. California State Board of Pharmacy

COBEY, J. The State Board of Pharmacy, its members and its executive secretary, appeal from a judgment in administrative mandamus (Code Civ. Proe., § 1094.5) entered on February 6, 1967. This judgment, by means of the paragraphs therein designated as (5) and (6), set aside certain penalties the board had imposed upon respondent corporation and remanded the case to the board for reconsideration of those penalties.

On a prior appeal in this ease (Civ. No. 29487), Division I of this district of this court, speaking through Justice Fourt, [903]concluded an unpublished opinion with the following order: “It is ordered that the judgment, insofar as it exonerates respondent of the charges of false and misleading advertising in violation of Business and Professions Code, section 17,500 and Title 16, California Administrative Code, section 1766, and insofar as it exonerates respondent of the charges of illegal advertising in violation of Business and Professions Code, sections 651 and 652, is reversed.

“ It is directed that the superior court affirm the findings of fact and determinations of issues of the State Board of Pharmacy with reference to the items last above specified."1

Respondent contends that under the foregoing order of this court the trial court was free to act on the penalty phase of the case because that phase was not covered by the order. We agree. The doctrine of the law of the case does not apply to points of law which might have been but were not presented and determined on the prior appeal. (DiGenova v. State Board of Education, 57 Cal.2d 167, 179 [18 Cal.Rptr. 369, 367 P.2d 865].)

For engaging in such false, misleading and illegal advertising the board ordered that respondent’s permits to conduct a pharmacy at one specified location be suspended 10 days and at two other specified locations 40 days. The 30-day suspensions were imposed for the false and misleading advertising; the 10-day suspensions were imposed for the illegal advertising. On a rehearing after the decision of this court, in which only argument of counsel was presented and no additional evidence was taken, the trial court found that these penalties were “unreasonable in light of the whole record,” and concluded that they were arbitrary, capricious and an abuse of discretion on the part of the board.

In its findings of fact and conclusions of law made in this case before the first appeal, the trial court, on the basis of the administrative record supplemented by evidence offered by respondent,2 found, among other things, that the board abused its discretion in imposing these penalties and the addi