Kennaley

Petitioner Kennaley brought an action for damages against Prank D. Hill for assault and battery, false arrest, and malicious prosecution. Hill filed an answer and a cross-complaint alleging a cause of action for slander, which occurred as part of the transaction set forth in the complaint as the foundation of petitioner’s claim. Petitioner then filed a notice of motion to dismiss the cross-complaint on the ground that no undertaking had been filed by the cross-complainant as required by section 830 of the Code of Civil Procedure. The motion was denied, and petitioner applies for a writ of prohibition.

The writ of prohibition may issue, if there is no other adequate remedy and the lower court is proceeding in excess of its jurisdiction. (Code Civ. Proc., §§1102, 1103; Housing Authority v. Superior Court, 35 Cal.2d 550, 556 [ 219 P.2d 457 ].)

Petitioner does not have another adequate remedy, if the court is required under section 830 to compel the filing of the undertaking or dismiss the cross-complaint. The order denying petitioner’s motion to dismiss was not appeal-able. (Code Civ. Proc., § 963.) Although it could be reviewed on an appeal from a final judgment, that relief would…