North Side Property Owners' Ass'n v. Hillside Memorial Park

Plaintiff, North Side Property Owners’ Association (hereinafter referred to as the “Association”), a

The instant proceeding is a companion case to the one numbered in this court 14795, entitled North Side Property Owners’ Association and Hughes Tool Company, a corporation, v. County of Los Angeles and the Board of Supervisors thereof, wherein plaintiff and intervenor herein sought a writ for the purpose of reviewing the proceedings and order of the board granting to defendants herein the permit to establish, maintain and operate the private cemetery here in question, and which case was this day decided (ante, p. 598 [ 161 P.2d 613 ]).

In general, plaintiff’s complaint and the complaint in intervention contained the identical allegations set forth in their aforesaid petition for writ of review. In short, it was alleged that defendants herein filed their application with the Regional Planning Commission of Los Angeles County (hereinafter referred to as the “commission”) for a permit to establish and maintain a private cemetery; and, after a hearing before said commission and later before the board, the latter made its order pursuant to the terms of the foregoing ordinance granting such permit. After challenging the jurisdiction of the board to grant such permit on the ground that the procedural requirements of the ordinance were not complied with, it was alleged that, if defendants are permitted to establish and maintain a cemetery on the lands described,

It requires no citation of authority for the statement that where judgment has been rendered for defendants on the pleadings, the sole question is whether the complaint states a cause of action; that in passing upon such motion for judgment on the pleadings nothing may be considered but the complaint itself. Nothing dehors the complaint, nor any defense thereto set up in the answer, can be taken into account in disposing of such a motion. The truth of the allegations contained in the complaint must be assumed and, if the pleading alleges ultimate facts which disclose the existence of a cause of action in favor of plaintiff, then the motion for judgment on the pleadings must be denied.

It is the contention of appellants herein that the trial court erred in granting the motion of respondents for judgment on the pleadings, for the reason that the plaintiff’s complaint and the complaint in intervention alleged ultimate facts which disclose that:

(a) The board of supervisors did not have jurisdiction to grant the cemetery permit sought by respondents; and

(b) The establishment and maintenance of the cemetery in question constitutes a private nuisance, which appellants are entitled to enjoin.

However, in the instant action, appellants cannot invoke, nor rely upon, the foregoing and well-recognized rule governing motions for judgment on the pleadings. This, for the reason that in the case with which we are here concerned, when the motion for judgment on the pleadings was submit

In the aforesaid writ of review case, the trial court held that the board of supervisors was clothed with jurisdiction to grant the cemetery permit sought by respondents herein, and the judgment therein was this day affirmed by this court (North Side Property Owners’ Assn. v. County of Los Angeles, supra). Pursuant to the foregoing stipulations, and upon the authority of the case just cited, it must be held that, insofar as appellants’ attack herein upon the jurisdiction of the board of supervisors is concerned, the trial court’s ruling on the motion for judgment on the pleadings was correct and proper. The stipulation served to render totally inapplicable the many eases cited by appellants or the long established principles of law which ordinarily govern motions for judgment on the pleadings. The stipulations authorized the trial court to venture far beyond the allegations of the complaint and to consider all of the proceedings had before the administrative boards in connection with the application of respondents for the cemetery permit; to examine the applicable county ordinances and to take into consideration the evidence offered in the proceedings before the administrative boards, to take into consideration the fact of personal appearances by appellants, through their counsel, at the hearings

We come now to a consideration of appellants’ claim that the complaint and complaint in intervention pleaded ultimate facts which entitled them to a hearing in equity and to the right to submit proof that the establishment and maintenance of the cemetery here in question constitutes a nuisance which appellants are entitled to enjoin.

There are two answers to appellants’ contention in this regard. In the first place, it is a well-recognized doctrine that where a party has an adequate remedy at law he may not resort to a court of equity for injunctive relief (City of South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579 , 595 [ 93 P. 490 ]; Winrod v. Wolters, 141 Cal. 399 , 402 [ 74 P. 1037 ]). A plain, speedy and adequate remedy at law was open to appellants. In fact, they exercised such remedy when they instituted the review proceedings. A comparison of the complaint and complaint in intervention herewith with the petition for the writ of review reveals the fact that the issues presented on the writ of review and those tendered in the case at bar are identical. In the instant case, the trial court found that appellants, and each of them, “has an adequate legal remedy by the bringing and determination of said companion case No. 492,580; . . .” We are not here concerned with a case wherein the constitutionality of the ordinance under which respondents obtained their cemetery permit is under attack, and where neither certiorari nor mandamus are available as remedies. Here the appellants admit the constitutionality of the ordinance and proceeded under its terms to oppose the granting of the cemetery permit to respondents. And when the permit was granted, they challenged the validity of the same by writ of review, upon grounds exactly similar to the claims urged here. Conceding the constitutionality of the applicable ordinances, which provide that a cemetery may be established on the property here in question when a permit is granted therefor by the board

“The water table in this district is low, and the Health Department and Flood Control District have submitted reports favorable to the granting of this permit. . . . After consideration of all the evidence, testimony, and factual data presented in this case, and after having made a field investigation of the premises and surrounding properties, and having determined that the use of the property in question for the establishment of a cemetery in accordance with the provisions above set forth would not become a public nuisance and would in no way jeopardize or adversely affect the public health, safety, or general welfare. ...”

In granting the cemetery permit, the board adopted the foregoing finding of the commission. In hearing and passing upon an application for a cemetery permit under the ordinances, the administrative body functions in a judicial or quasi judicial capacity (Ware v. Retirement Board, 65 Cal.App.2d 781 , 793 [ 151 P.2d 549 ]; Greif v. Dullea, 66 Cal.App. 2d 986 , 1009 [ 153 P.2d 581 ]; Dierssen v. Civil Service Commission, 43 Cal.App.2d 53 , 63 [ 110 P.2d 513 ]). If appellants had any evidence to support their claim of underground water pollution, they should have presented it to the administrative bodies, and the same would have been reviewed by the court on the writ of review. Under the above-mentioned stipulations, filed in this ease, which permitted the trial court to consider the evidence presented to the administrative boards, the trial court was authorized to assume that, if appellants were in possession of any additional evidence of underground water pollution, they would not have remained silent before commission and the board. Whatever evidence appellants did present to the administrative board was re

We are persuaded that appellants not only had a speedy and adequate remedy at law, but that they availed themselves of the same. Therefore, a suit in equity to enjoin a private nuisance cannot be maintained. Furthermore, we are impressed from a reading of the allegations and prayer contained in appellants’ pleadings in the review case and in the present proceeding, that the sole and only purpose and object of the present action is to accomplish the identical results sought in the review proceeding, namely, to attack the validity of and to set aside the cemetery permit granted respondents. The legal remedy utilized by appellants was wholly adequate to accomplish the main, if not the sole, purpose sought in the two proceedings.

Finally, we are persuaded that under the pleadings the court was required, because of the provisions of section 731a of the Code of Civil Procedure, to grant the motion. The section in question was made a part of the code in 1935 and, so far as material to the issues here involved, reads as follows:

“Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial uses are expressly permitted, no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation. . . .”

The cemetery site for the establishment and maintenance of which a permit was granted respondents by the board is situated in Zone M-3. Under County Ordinance No. 1494 (N. S.), as amended, the unincorporated area of Los Angeles is divided into 16 zones, of which one is Zone M-3, and it is further provided that the area within said Zone M-3 may be used for any commercial use whatsoever, save and except that before any property situate in such Zone M-3 can be used for cemetery purposes a permit must be obtained from the board.

The question then arises whether the establishment and maintenance of a cemetery comes within the purview of section 731a of the Code of Civil Procedure. That the maintenance and operation of a cemetery is a “commercial use” within the meaning of the code section to us seems obvious. Section 7020 of the Health and Safety Code defines the maintenance of a cemetery as a “business”; section 8275 of the same code provides who may engage in or transact any of the “businesses of a cemetery” within this state. In Building Commissioner of Che Town of Brookline v. McManus (1928), 263 Hass. 270 [ 160 N.E. 887 ], it was held that “undertaking, as commonly carried on is not a profession; it is a business or occupation”; and in Meyer v. Stein (1940), 284 Ky. 497 [ 145 S.W.2d 105 , 107], the court stated “Therefore, we are constrained to hold these covenants excluded the use of the residence on Lot No. 27 as a funeral home, since it cannot be denied that a funeral home is a commercial enterprise.” To us it seems quite clear that the use of land for cemetery purposes is a “commercial use” within the meaning of section 731a of the Code of Civil Procedure, and is therefore properly excluded by the County Zoning Ordinance from a residential zone and confined to Zone H-3, which provides for the unlimited and unrestricted use or occupancy of lands therein situate, except that in the case of cemeteries a permit must be obtained from the board of supervisors, as was done in the instant case.

The only restriction enjoined upon “commercial uses” by section 731a of the Code of Civil Procedure is that the operation thereof shall be “reasonable and necessary.” It is only when there is evidence of the employment of “unnecessary and injurious methods of operation” that any “commercial use ’ ’ referred to in section 731a of the Code of Civil Procedure may be deemed a nuisance. Nowhere in the complaint or the complaint in intervention herein is there any allegation that respondent proposes to or will operate said cemetery in any other than a “reasonable and necessary” manner as cerne

For the foregoing reasons, the judgment is affirmed.

York, P. J., and Doran, J., concurred.

A petition for a rehearing was denied September 25, 1945, and appellant Hughes Tool Company’s petition for a hearing by the Supreme Court was denied October 25, 1945.