People ex rel. City of Torrance v. City of Gardena

This appeal is from the judgment entered July 27, 1960, “in favor of plaintiffs and against defendant, and from the whole of said judgment.” The judgment provides in pertinent part as follows:

“. . . [T]he action brought by the Attorney General in the name of the People of this State, upon relation of the City of Torrance, in Quo Warranto against the City of Gardena to test the validity of a completed annexation proceeding shall be approved and that said City of Gardena shall be excluded from any and all franchises, and that jurisdiction or control over lands within said uninhabited territory designated as the ‘Crenshaw Boulevard Annexation’, and that said annexation proceeding by the City of Gardena is null and void.” (Emphasis added.)

On June 29, 1960, the trial judge filed a “Memorandum op Decision'” which sets forth the facts of the ease at bar as follows:

‘ ‘ The facts in this case are not in dispute ...

“On March 23, 1959, the City of Gardena, pursuant to California Government Code, Section 35310 (unless otherwise specified, all code sections hereinafter referred to are references to the Government Code) passed Resolution of Intention No. 1548 to annex certain territory known as the ‘ Crenshaw Boulevard Annexation. ’ These proceedings were commenced under the annexation" of Uninhabited Territory Act of 1939 (Sections 35300, et seq.) The resolution instructed the City Clerk of Gardena to forward a copy of the map and legal description of the area proposed for annexation to the Secretary of the Boundary Commission of Los Angeles County. This was done on March 23, 1959. On April 1, 1959, the Boundary Commission notified the City Clerk that the boundaries of the proposed annexation were approved with some slight revisions in the legal description, and informed the

City Clerk of Gardena that the proposed annexation was entirely within the boundaries of the proposed ‘Alondra Addition’ to the City of Torrance which had been previously approved by the Commission on March 18, 1959. On April 21, 1959, Resolution No. 1558 was adopted by the City Council of the City of Gardena, amending Resolution No. 1548, and employing the Boundary Commission’s revised description. A hearing on protests was duly scheduled and held. Ordinance No. 497 approving the ‘Crenshaw Boulevard Annexation’ was adopted by the City Council of Gardena on July 9, 1959; a certified copy was sent to the Secretary of State and an affidavit of completion of the annexation was filed with the County Recorder of Los Angeles.

‘ ‘ The City of Torrance also initiated an annexation of certain territory referred to as the ‘Alondra Addition’ in accordance with the Annexation Act of 1913, governing the annexation of inhabited territory (Sections 35100, et seq.; The territory to be annexed by Gardena’s ‘Crenshaw Boulevard Annexation’ was part of Torrance’s ‘Alondra Addition.’ On March 3, 1959, the Planning Commission of the City of Torrance recommended that the ‘Alondra Addition’ be annexed, and on March 4, 1959, the City Council of the City of Torrance consented to the commencement of the annexation proceedings as required by Section 35106. A written description of the territory proposed for annexation was filed with the Secretary of the Boundary Commission of Los Angeles County on March 5, 1959. (Section 35002.) On March 18, 1959, the Boundary Commission made its report revising and approving the written description. A notice of intention to circulate a petition was published by the proponents of the petition on March 22, 1959, as required by Section 35111. On March 24, 1959, one day following the adoption of the Gardena resolution of intention, the City Council of the City of Torrance adopted Resolution No. 3654 ...”

On October 9, 1959, after first obtaining leave to sue, “The People of the State of California Upon the Relations of : The City of Torrance, a municipal corporation of the State of California” filed a “Complaint in Quo Warranto to Avoid an Annexation” naming “The City of Gardena . . .” as defendant.

Therein it was alleged that “the attempted annexation of the City of Gardena is void because substantive and jurisdictional provisions of the annexation laws were violated.”

The matter was heard on May 31, 1960. The Reporter’s Transcript of the proceedings indicates that hut a single issue was raised in the trial court. The transcript states in pertinent part as follows:

“The Court: ... I think this: that but for the injection of this matter having to do with the City of Lawndale and possibly a stipulation as to certain dates, I think that the matter could be determined on a Demurrer because as I see it without preventing Mr. Anderson from arguing the sufficiency of the pleading itself, but assuming that as I think it does—not in the very finest way—but I think it does state a cause of action and it raises the sole question as to whether or not under the circumstances the City of Gardena or the City of Torrance first acquired jurisdiction.

“If you can state that as a matter of law that one or the other did, then it would be determined the Demurrer, wouldn’t it?

“Mr. Dower : Yes.

“The Court: It would be determined on the Demurrer. In other words, if the Court held that the City of Gardena acquired jurisdiction first to be more specific that their failure to comply with Section 35002, is it ?

“The Court: -regarding getting the approval of the

Boundary Commission that would determine the matter because admittedly by your own state of facts they did proceed a day before. Query: Did the failure to get the approval of the Boundary Commission first deny them any jurisdictional rights in view of the attempted procedure on its own proceedings and getting the Commission’s approval?

‘ ‘Mr. Dower : That’s the issue.

“The Court: And as I say they have injected another issue in here which, as I say, we - can’t consider unless you can stipulate.

“Mr. Anderson : Yes. If counsel wants to stipulate to the facts that I have set them out correctly as to the dates, I will he agreeable.” (Emphasis added.)

Several pages later the transcript discloses:

“The Court: And I think the Demurrer would be deter

mined that at this time if we want it limited to that sole issue.

“Mr. Anderson: I would be willing to limit it to the sole issue.

“The Court : Then it’s a pure question of law as to whether or not the failure of the City of Gardena to get prior consent or approval rather of the Boundary Commission as between two cities is fatal or whether it is as has been held in cases where it involved property owners held only to be a procedural or directive matter or ordinary procedure. Is that not the case as you see it?”

It is further stated in the transcript:

“The Court: Very well. Well, do I understand, gentlemen, that we have an understanding that in so far as the demurrer is concerned, it is the understanding that the Demurrer is being submitted with the understanding that if—let me think how this would go.

“Mr. Anderson": If the Demurrer is overruled-

“The Court : Yes, then that will determine the proceeding.

“Mr. Anderson : Without the filing of an Answer.

“The Court: Without the filing of an Answer because the Court will then have made an explicit finding in effect that the facts are true and under the facts as stated as a matter of law the City of Torrance had a priority.

“If on the other hand the Demurrer is sustained then it will be tantamount to the Court holding that the complaint doesn’t state a cause of action because on its face the City of Gardena had jurisdiction.

“I think that that is a clear cut question which can be reviewed, if necessary.

“Mr. Anderson : Very well. . . . This is apparently a matter of first impressions, as I understand it, excepting in so far as the fact that there are these two cases, the Jefeerson case, the Sunnyvale case which have held that at least in argument between property owners as to the propriety of annexation proceedings.

‘1 The Court : The requirement of it is 35002 ?

“Mr. Anderson : Yes.

“The Court: Or directory only and do not complete jurisdiction. Query: Should a different rule apply where the contest is between two cities who seek to annex certain territory, one of which follows the procedural system and the other does not, each getting jurisdiction but one having followed

the procedure getting jurisdiction at least a day after the formerf

CC

“The Court : Yes. It’s this question: Is there a justifiable basis for distinction in the controversy between two cities in so far as the necessity of complying with Section 35002 is concerned as against acquisition where merely property owners in a particular area are contesting the validity of an annexation proceeding.” (Emphasis added.)

In overruling defendant’s (appellant’s) demurrer, the trial court determined that the provisions of section 35002 were, in a controversy between two cities, mandatory.

Appellant has attempted to present two issues on appeal. The first issue is stated as follows: “ (1) That independent of the Gardena annexation proceedings, Torrance lacked jurisdiction to go forward with the Torrance annexation because of the pendency of the proposed incorporation of the City of Lawndale.”

As shown by the reproduced portions of the reporter’s transcript, the Lawndale matter was not presented to the trial court for determination. On the contrary, appellant stipulated that there was but one issue. As stated in Munfrey v. Cleary, 75 Cal.App.2d 779 , 785 [ 171 P.2d 750 ] :

“Also as a general rule where a case has been tried upon one theory that theory must be adhered to on appeal, and a party who has tried his case wholly or in part on a certain theory, which theory was acted upon by the trial court, cannot, on appeal, change his position and adopt a different theory, since to do so would be unfair to the trial court and to opposing counsel. (Blanc v. Connor, supra [ 167 Cal. 719 ( 141 P. 217 )]; Marra v. Aetna Construction Co., 15 Cal.2d 375 , 379 [ 101 P.2d 490 ] ; Mathews v. Pacific Mutual Life Ins. Co., 47 Cal.App.2d 424 , 428 [ 118 P.2d 10 ] ; Ernst v. Searle, 218 Cal. 233 , 240-241 [ 22 P.2d 715 ] ; 2 Cal.Jur. 237; 4 C.J.S., 471; 5 C.J.S. 175.)”

What was stated in Babbitt v. Carthage Marble Corp., 12 Cal.App.2d 572 [ 55 P.2d 1205 ], is pertinent in disposing of appellant’s attempt to interject a new issue on appeal. As stated therein at page 575:

“Defendant has attempted to inject a plethora of issues on this appeal which have no materiality to the fundamental point involved, and to which counsel by stipulation narrowed

“Proceedings to annex uninhabited territory are instituted and jurisdiction attaches ‘when a valid and sufficient petition for annexation has been filed with the legislative body of a city or that body has instituted such proceedings on its own motion.’ (Government Code Section 35308.) (City of Costa Mesa v. City of Newport Beach, supra.) The proceedings are instituted on a city’s own motion when a resolution of intention to annex is adopted pursuant to Section 35310. Gardena’s Resolution No. 1548 was adopted on March 23, 1959, to annex the ‘ Crenshaw Boulevard Annexation’ which is uninhabited territory.

“The City of Torrance concedes that if Resolution 1548 to annex the ‘ Crenshaw Boulevard' territory was validly enacted by the City of Gardena, Gardena would have priority over the City of Torrance and would retain jurisdiction until final determination of their proceeding. (Section 35308.) ” In support of appellant’s contention that section 35002 is merely a directory provision intended to encourage definiteness and certainty in boundary descriptions, and is not mandatory, two cases are cited. The first is Jefferson Union School District v. City Council of Sunnyvale, 129 Cal.App.2d 264 [ 277 P.2d 104 ]. In that case the attack upon the annexation was being made by a school district. The basis for the attack was that the petition for annexation was circulated and signed before it was submitted to and reported upon by the county boundary commission, even though such submission and report occurred prior to the adoption of the resolution by the city council.

The court held that “the provisions of section 35002 are directory, not mandatory. ’ ’ The court stated at page 266 : “When, as in the instant case, a city council has received an appropriate petition bearing the signatures of a sufficient number of landowners and a report of the county boundary commission that the proposed boundaries described in the petition are definite and certain, it would seem an idle and useless act to return the petition to the proponents for resignature by the petitioners and resubmission to the council. ’ ’ Unlike the Jefferson case, the case at bar involves two jurisdictions competing for priority in annexation proceedings. There seems little doubt that even if all the steps in the Jef

The second case cited by appellant is Southern Lumber Go. v. City Council of San Jose, 146 Cal.App.2d 133 [ 303 P.2d 599 ], The Southern case, like the Jefferson case, did not involve two jurisdictions competing for priority. In Southern, the annexing city did file a proposed description with the boundary commission prior to the commencement of annexation proceedings. The city of San Jose complied with the Annexation of Uninhabited Territory Act of 1939 by filing the proposal with the county commission before passing its resolution of intention to annex plaintiff’s land. Subsequently, the board of supervisors adopted a resolution to incorporate into the city of South San Jose the area proposed to be annexed by San Jose, but the election was called off. The city of San Jose then adopted a second resolution of intention to annex the identical territory as described in its first resolution to annex. The court held that the resubmission of the proposal to the boundary commission would have been an idle act and as such was unnecessary.

Appellant also cites two cases which did involve competing cities. (City of Costa Mesa v. City of Newport Beach, 165 Cal.App.2d 553 [ 332 P.2d 392 ]; City of Cupertino v. City of San Jose, 186 Cal.App.2d 29 [ 8 Cal.Rptr. 525 ].) Neither of these cases is helpful to appellant in resolving the issue before this court.

In the Costa Mesa case at page 557, the court rejected the contention that it was the submission of the matter to the boundary commission which constituted the institution of annexation proceedings.

With reference to the conditions precedent to the institution of annexation proceedings as distinguished from the issue of “what” constitutes institution of proceedings, the court stated at page 557:

“No annexation proceeding may be instituted until the proposal therefor has been submitted to and reported upon by the county boundary commission.” (Emphasis added.)

We believe that the trial court was correct when it determined that the requirements of section 35002 are mandatory where the contest for annexation is between two cities. We hereby adopt, as set forth in pertinent part hereafter, the trial court’s memorandum:

“. , . It is to be noted that in neither case (i.e. Jefferson

“Section 35002 uses the verb ‘shall’ and should be construed as mandatory under Section 14 of the Government Code unless modified by Section 5 of the same Code which provides that definitions found among the ‘general provisions’ including Section 14, shall govern unless ‘the provision or the context otherwise requires.’ The court in Jefferson [Union School Dist.] v. City Council [of Sunnyvale], supra, held that under the facts of that case ‘the context does otherwise require, to the extent at least that there has been a technical noncompliance in this case.’ (Emphasis added.) It is elementary that the language used in any opinion is to be understood in the light of the facts and the issues then before the court. (Porter v. Bakersfield [& Kern Elec. Ry. Co.], 36 Cal.2d [582] 590 [ 225 P.2d 223 ].) As previously indicated, the factual situation in the case at bar is far different from the factual situation in the Jefferson and Southern Lumber cases. It is this court’s opinion that omitting to follow the requirements of Section 35002 where the contest for annexation is between two cities is not a mere technical noncompliance but is substantive and one that involves orderly procedure to insure good government. In these circumstances the context of Section

For the reasons stated, the judgment is affirmed.

Wood, P. J., and Lillie, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 26, 1961.