If a declaratory relief action is filed before an administrative hearing, can the losing party raise exhaustion of remedies?

In an earlier case we held that where a declaratory relief action was filed before an administrative action, and it appeared a party's "only procedure for relief was through the court" but the parties agreed to an administrative hearing, the losing party could not raise exhaustion of remedies. (State of California v. Superior Court (1971) 16 Cal.App.3d 87, 95, 93 Cal.Rptr. 663 ["Although this is a declaratory relief action and possibly could have been tried without an administrative hearing being provided, the parties stipulated that an administrative hearing be had.... To hold that [real party in interest] is not so estopped means that the six days of administrative hearing was a nullity and waste of time"].) Although the parties here did not stipulate to an administrative hearing in this case, plaintiffs argued in the trial court that exhaustion was not required. Thus, whether or not that contention was legally correct (see fn. 6, post ), to allow them to change course now would mean the trial was a nullity and a waste of time. As we said in an analogous context, "it is inappropriate to allow any party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and

[198 Cal.Rptr.3d 778]