North Shuttle

67 Cal. App. 4th 386 (1998), 79 Cal. Rptr. 2d 46

The Court of Appeal (First District, Division 4) construed (for virtually the first time since their enactment 50 years earlier) the provisions of the Code (§§ 1761, et seq.) governing stays of Commission decisions by a Court. The Court affirmed the Commission’s order, concluding that the Petitioner had not shown the prospect of irreparable injury, (the predicate for both a long-term stay under § 1762 and a temporary stay under § 1763). (Notably “great or irreparable damage” is the lone statutory criteria; the applicant for the stay need not show a likelihood of prevailing on the merits.) North Shuttle had first filed an application for rehearing of the Commission’s order. The application for rehearing stayed that order pursuant to Section 1733(a).33 Accordingly, a question left open by this decision is whether a party is required to file an application for rehearing in order to seek a stay in the first instance. In other words, does Section 1731 bar an application to a court for a stay under Sections 1761-3 where the party has not first sought rehearing from the Commission under Section 1731? A fairly recent appellate court order so finds but I harbor reservations.34 The recent court decision may have rested on the fact that, in the absence of an application for rehearing, no petition for writ of review could have been filed (Sections 1731 and 1756). The Court would be correct in that view but it begs the question of whether a pending petition for writ of review is a predicate to an application to an appellate court for a stay. Is a request for a stay a “cause of action” within the meaning of Section 1731? Requiring a party that seeks a stay to first file an application for rehearing seems inconsistent with the immediacy typically associated with a request for a stay since the party presumably suffering irreparable harm would have to wait as long as 60 days to even acquire standing to file the petition for writ of review (Sections 1733(b) and 1756.)

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