Credit Insurance General Agents Ass'n of California, Inc. v. Payne

Opinion

ROTH, P. J. On June 18, 1973, appellant filed its action against respondent for declaratory and injunctive relief, wherein it sought to enjoin enforcement of portions of sections 2248.1-2248.25 of title 10 of the California Administrative Code and particularly section 2248.14(c) there[874]of, insofar as they purport to regulate compensation which may be paid to general agents of insurers in the credit insurance industry in California and to obtain an adjudication respondent was without statutory authority to restrict the maximum amount of such compensation.

Following respondent’s answer, the trial court granted summary judgment in favor of appellant, having concluded respondent was without the necessary authority. That determination was affirmed on appeal. Our Supreme Court, however, granted hearing and on April 3, 1976, rendered its decision reversing the judgment and remanding the cause to the trial court with directions to enter judgment for respondent. (Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651 [128 Cal.Rptr. 881, 547 P.2d 993].) A petition for rehearing was denied May 6, 1976, and on July 27, 1976, a final judgment was entered. Thereafter, appellant filed its petition for writ of mandate which on October 28, 1976, was peremptorily granted, requiring the trial court to set aside its July 27 judgment and to proceed to consider any issues raised by the pleadings which had not been specifically passed upon in the earlier Supreme Court decision. The parties each filed further motions for summary judgment which were heard February 10, 1977, and judgment was entered in respondent’s favor March 9, 1977. Appellant then moved for a new trial or to vacate the judgment and that motion was denied by the trial court’s order dated April 27, 1977. Appellant appealed to this court from that order on May 12, 1977.1

Appellant asserts the questions presented are:

(1) Whether there is a triable issue of material fact that California Administrative Code, title 10, section 2248.14 as adopted and applied to general agents, is arbitrary, capricious, and overbroad, and lacks evidentiary support in the record.

(2) Whether the appropriate standard of review ought to be broader in this case where constitutional rights are infringed upon than those applied in other quasi-legislative actions.

[875]