Wine v. Council of Los Angeles

Petitioners sought by mandamus and certiorari (1) to review and annul the action of the Los Angeles City Council approving a tentative subdivision map of certain property, and (2) to review, terminate and annul the proceeding by which said property was annexed to the city. The court refused to issue either an alternative writ of mandamus or a writ of certiorari. Petitioners have appealed.

Also on the same day, the city clerk mailed certified copies of the annexation ordinance to the secretary of state for filing. Due to a clerical error, corrected copies of the ordinance were mailed to the secretary on November 5, and were filed by the secretary on November 6. The certificate of such filing by the Secretary of State was filed, for recordation, with the county recorder of Los Angeles County on November 21,1958.

Service of the writs was quashed on November 21, 1958, for the reason that they had been served on the city clerk instead of the city council to which body they were directed, and for the additional reason that the copies served were not true copies. All restraints were dissolved without prejudice to an application for a new writ.

On December 3, 1958, petitioners filed a supplemental and amended petition, which again sought both writs of mandamus and certiorari. This petition again named the city council as

The third cause of action alleges: That the subdividers had prior to the adoption of the annexation ordinance, sought and obtained financial assistance from the county of Los Angeles toward the cost of construction of roads and bridges in the subdivision ; that the subdividers had conspired among themselves to obtain this financial assistance while at the same time intending to apply for annexation to the city; that the expenditure of county moneys under these circumstances violates public policy and the intent of the annexation statutes and; that such expenditure of county funds “constitutes a gift of public funds contrary to the prohibition of Section 31, Article IY of the State Constitution.” This cause of action appears to be a proceeding in mandamus to declare the annexation ordinance null and void.

The fourth cause of action particularizes the “facts” which petitioners allege constituted a denial of a fair hearing before the city council as previously alluded to in the first cause of action. These allegations are: That the members of the council erroneously relied upon the advice of the city attorney as to the legality of imposing the two conditions above mentioned; that the owners of the property offered to pay $50,000 toward the cost of improvement of offsite roads and that such offer influenced the vote of the council; that the reports prepared by various departments of the city relating to the costs to the city growing out of the annexation of the property were not read to the council; that the testimony before the planning commission was not read to the council; and that since the council had previously established a legislative policy not to impose annexation fees, the question of a fee in this case was not fairly decided.

Petitioners had no right, as a matter of course, to the issuance of the alternative writ of mandate or the writ of certiorari. (Patterson v. Board of Supervisors, 79 Cal.App.2d 670 , 671 [ 180 P.2d 945 ]; Birch v. Orange County, 191 Cal. 235 [ 215 P. 903 ].) Upon filing their amended and supplemental petition, petitioners gave notice to all the respondents of their intention to apply for issuance of both of these writs. Under such circumstances, respondents were authorized by section 1107 of the Code of Civil Procedure to submit points and authorities in opposition to the application (which they did) and the trial court was authorized to deny the application summarily without a hearing on the merits. (Patterson v. Board of Supervisors, supra; Wilson v. Los Angeles County Civil Service Comm,., 103 Cal.App.2d 426 , 430 [ 229 P.2d 406 ].)

We have determined that the court below properly denied the issuance of the writs for three basic reasons: (1) That petitioners did not have a sufficient beneficial interest as “taxpayers” to entitle them to challenge either the approval of the subdivision or the annexation proceedings; (2) that they have no standing as “aggrieved” persons under section 11525, Business and Professions Code, to attack either of these proceedings; and (3) that in any event their amended and supplemental petition failed to show a sufficient basis for the issuance of either of the requested writs.

With respect to the right of petitioners to maintain this special proceeding, there are certain clearly established principles. In Schaefer v. Berinstein, 140 Cal.App.2d 278 , at page 289 [ 295 P.2d 113 ], the court stated: “In this state it is thoroughly established that a taxpayer, under certain circumstances, has the right to sue in a representative capacity. (Citing cases.)” The court then enumerated these “certain circumstances” as “. . . fraud, collusion, ultra vires, or a failure on the part of a governmental body to perform a duty specifically enjoined.” No facts showing fraud, ultra vires, collusion, or a failure on the part of the Council to perform any specifically enjoined duty are alleged in the supplemental petition.

In the present case, the only beneficial interest alleged in behalf of petitioners with regard to the annexation proceedings is found in their second cause of action where they

However, petitioners also aver that they are properly before the court by virtue of the provisions of section 526a of the Code of Civil Procedure, which provides for suits by resident taxpayers to restrain or prevent any “illegal expenditure of, waste of or injury to,” the property of a city or county. The only cause of action which attempts to allege facts that might conceivably warrant relief under section 526a is the third. In that cause of action, petitioners allege that the county of Los Angeles expended, without authority, a large sum of money to construct roads and bridges within the proposed subdivision and that such expenditure was brought about by subterfuge on the part of the owners of the subdivision and constitutes a gift of public funds in violation of article IV, section 31, of the state Constitution. Obviously, such an asserted wrong on the part of the county may not be redressed by a suit against the city. Petitioners further allege that the annexation of this territory constitutes a circumvention and evasion of section 31 of article IV of the Constitution, and is against the public policy of the state. The fact, if it be such, that the county has made unwise or even illegal expenditures in improving the area in question can have no bearing on the city’s right to annex it. Finally, in this connection petitioners charge that the city, if not ordered to desist, will expend municipal funds for public improvements and for other purposes in said area and thereby waste the funds of the city. No facts, however, , are alleged to support this general charge. Of course, upon the annexation of this territory the city may make appropriate expenditures for public improvements. It is thus apparent that petitioners have made no showing sufficient to maintain a representative suit under 526a.

Petitioners’ further suggestion that they may properly bring this suit under the provisions of section 1094.5 of the Code of Civil Procedure is without merit. That section provides for judicial review of administrative orders or decisions and does not authorize the review of legislative

Finally, petitioners contend that they are entitled to maintain this suit on the theory that they are “aggrieved” within the meaning of section 11525, Business and Professions Code, which gives, inter alia, any person aggrieired by the decision of the governing body of a city or county the right to a judicial review of the reasonableness of such body’s decision as to the design and improvement of a proposed subdivision. (See footnote 2, supra.) This section does not deal with annexation proceedings. Therefore, it does not give petitioners standing to attack the annexation, which is separate and apart from the control of subdivision design and improvement. The next question then is: Are petitioners “aggrieved” persons by the decision of the city council and as such entitled to challenge the reasonableness of its action as to the design and improvement of the subdivision? Petitioners do not allege that they or either of them own any property in the subdivision or any property that will be affected by the decision in any manner different from its effect upon the property of all other property owners and taxpayers in the city. They do not show any detriment peculiar to themselves as distinguished from the general interest that is theoretically shared by all the property owners of the city. (See Blumberg v. Hill, 119 N.Y.S.2d 855 .) This interest is remote and indirect and not such as to constitute every property owner and taxpayer in the city an aggrieved person with respect to the decision of the city council as to the design and improvement of this particular subdivision. (See Clark v. Warner, 85 Okla. 153 [ 204 P. 929 ].) If the Legislature had intended that every taxpayer who was thus remotely and indirectly affected by the decision of “a governing body” with respect to the design and improvement of a subdivision should have the right to test the reasonableness of that decision it could easily have said so in clear and unmistakable language. It is apparent that petitioners are not “aggrieved” within the meaning of section 11525, Business and Professions Code. Hence they are

Furthermore, in any event, the amended and supplemental petition does not show that petitioners are entitled to any relief. Judge Kincaid did not abuse his judicial discretion in denying out of hand the application for the writs. Under section 35318, Government Code, annexation is complete from the date of filing of the certified copy of the annexation ordinance by the Secretary of State. The record shows that such ordinance was filed by the Secretary of State on November 6, 1958. Absent any effective legal restraint, the territory became a part of the city on that date. (Gov. Code, § 35318.)

While the trial court had issued, ex parte, an alternative writ of mandamus and a writ of certiorari on November 3d there had been no effective service of either of said writs. As a consequence there was no legal restraint upon any of the respondents with respect to any of the steps necessary to complete the annexation. It therefore follows that the annexation was complete when the Secretary of State filed the certified copy of the ordinance on November 6, 1958. The amended and supplemental petition was filed on December 3d and the hearing on the issuance of an alternative writ was held January 7 to 9, 1959. Since the annexation had been completed and the territory had become a part of the city over which it exercised jurisdiction, it is clear there was no basis on which the court could properly issue an alternative writ of mandate. (See American Distilling Co. v. City Council of Sausalito, supra, at p. 667.) But, argue petitioners, the amended and supplemental petition relates back to the date of filing the initial petition and their right to the issuance of the alternative writ was determinable as of that time. It is the general rule that amended pleadings relate back to the time of filing the first pleading. But that principle has no application to the problem here posed. By their amended and supplemental petition, petitioners are attempting to lay the foundation for an alternative writ of mandate requiring the city to do or refrain from doing certain acts, or to show cause why it has not complied with the order. But when the amended and supplemental petition was

Petitioners’ reliance on Peter v. Board of Supervisors, 78 Cal.App.2d 515 [ 178 P.2d 73 ] (a proceeding in certiorari), is misplaced. The question there, insofar as the doctrine of relation back is concerned, was whether the proceeding was pending from the time of filing the initial petition or only from the date an amended petition was filed. No such problem is presented in the instant case.

Certiorari may be used to test the jurisdiction of an inferior board or tribunal. Upon a proper showing the writ may issue either where there is no authority in the board or tribunal to act on the matter in question, or where such body having jurisdiction of the parties and subject matter acts beyond its power. (Fortenbury v. Superior Court, 16 Cal.2d 405 , 408 [ 106 P.2d 411 ].) Thus upon a sufficient showing it may be used to test the jurisdiction of a city council in annexation proceedings. (City of Anaheim v. City of Fullerton, 102 Cal.App.2d 395 [ 227 P.2d 494 ]; Peter v. Board of Supervisors, supra.) In the instant case petitioners have made no showing sufficient to entitle them to such relief. They do not challenge the power of the city to annex uninhabited territory. Their contention is that the city council acted in excess of its statutory authority by proceeding to annex the territory in question prior to valid approval of the tentative tract map. Their position is that annexation cannot be effected unless and until the tract map has been properly approved; that the action of the city council approving the tract map was unreasonable, and therefore the annexation proceedings were not valid. This attack on the annexation is completely unmeritorious. While it is true that approval by the city council of a subdivision which is situated outside the boundaries of the city must be conditioned upon annexation of that property to the city (Bus. & Prof. Code, § 11531), the converse is not true. There is no authority for the proposition that valid subdivision proceedings are a prerequisite to a valid annexation of such property. Petitioners have failed to show either a lack or an excessive exercise of authority on the part of the city council in connection with the annexation proceedings. Con

Nor have petitioners alleged facts which would justify the issuance of an alternative writ of mandate under section 11525 of the Business and Professions Code. (See footnote 2, supra.) This section provides that “special proceedings” may be brought by “any subdivider or person claiming'to be aggrieved” to determine the “reasonableness” of the decision of the governing body. Such decision of the governing body is limited by the same section to those matters which relate to the “design” and “improvement” of the subdivision. Unless the action of the city council which is here challenged involved the “design” or “improvement” of the subdivision, no review of its reasonableness is authorized by section 11525. The Business and Professions Code defines “design” and “improvement” in sections 11510 and 11511 respectively. Section 11510 reads: “ ‘Design’ refers to street alignment, grades and widths, alignment and widths of easements and rights of way for drainage and sanitary sewers and minimum lot areas and width.” Section 11511 reads: “ ‘Improvement’ refers to only such street work and utilities to be installed, or agreed to be installed by the sub-divider on the land to be used for public or private streets, highways, ways, and easements, as are necessary, for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs as a condition precedent to the approval and acceptance of the final map thereof.” It only remains to be determined whether the two conditions which the council refused to impose with respect to the tract map approval here were within the above definitions.

The proposed condition that the subdividers pay an additional sewerage fee into the general sewer fund was not within the control of the city council as either a part of the design or as an improvement of the subdivision. Similar conditions were involved in Kelber v. City of Upland, 155 Cal.App.2d 631 [ 318 P.2d 561 ], wherein the court declared invalid two ordinances of the city of Upland which required the payment by subdividers of fees for the purchase of park and school sites and also a drainage fee “in lieu of the construction of drainage structures outside the subdivision.” The court stated: “The imposition of such fees as a condition for the approval of such a map not only bears no relation to the requirements indicated in the statute [§ 11525, Bus.

As to the proposed condition that the subdividers pay the cost of improving offsite streets, petitioners rely on Ayres v. City of Los Angeles, 34 Cal.2d 31 [ 207 P.2d 1 , 11 A.L.E. 2d 503]. They misconstrue that decision. The court there held only that, consistent with the Subdivision Map Act, the subdivider could be required to dedicate subdivision property for use in the widening of already existing streets. The Ayres case is not authority for the proposition that the subdivider may be required to pay the cost of improving offsite streets, nor may such meaning be ascribed to the statute. It follows that the two conditions were not within the control of the city council for the reason that neither was part of the “design” of the subdivision nor an “improvement” thereof. Therefore, no challenge to the reasonableness of the city council’s decision relative to these two conditions was authorized by the statute. Consequently, petitioners failed to show that they were entitled to any relief with respect thereto.

In view of the foregoing, it is not necessary to discuss other questions raised by the parties in their briefs.

The order denying petitioners any relief is affirmed.

Ashburn, J., and Herndon, J., concurred.