Heist v. County of Colusa

Defendant County of Colusa demurred, alleging the petition was barred by the statute of limitations but later stipulated to the overruling of its demurrer.

The matter was heard on September 10, 1982. Plaintiff asked that the trial court take judicial notice of the navigability of Butte Creek. The court requested plaintiff to provide information to aid it in its decision; he agreed to do so, and did that in his trial brief, filed September 28, 1982. However, plaintiff failed to submit any evidence which would indicate that Laux Road touches or abuts Butte Creek.

The trial court denied the petition, finding that the decision by the Board to be a legislative act and not arbitrary or capricious. The court did not address plaintiff’s motion for judicial notice, instead dismissed it in bulk with his other contentions.

A. Standard of Review

Is the abandonment of a county road^[1] by the board of supervisors a legislative or judicial act? Plaintiff contends it is the latter, and that judicial review of such a decision must be pursuant to Code of Civil Procedure section 1094.5, subdivision (c), which requires the findings of the Board to be supported by substantial evidence. We disagree.

Until 1976, the line of cases holding abandonment of a road to be a legislative act was unbroken.^[2] (See Beals v. City of Los Angeles (1943) 23 Cal.2d 381 , 385-386 [ 144 P.2d 839 ]; Symons v. San Francisco (1897) 115 Cal. 555 , 560 [ 47 P. 453 ]; Quinchard v. Board of Trustees (1896) 113 Cal. 664 , 669 [ 45 P. 856 ]; Bowles v. Antonetti, supra, 241 Cal.App.2d at

The fact that the administrative body acts in response to specific petitions or parties, and indulges in d hearing process, does not detract from the legislative nature of the action. (Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271 , 279 [ 63 Cal.Rptr. 889 ].) Judicial review of a legislative or quasi-legislative action is made under ordinary mandamus (Code Civ. Proc., § 1085) and is limited to an examination of the proceeding to determine whether the action of an administrative body has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether it has failed to give the notices and follow the procedures required by law. (Pitts v. Perluss (1962) 58 Cal.2d 824 , 833 [ 27 Cal.Rptr. 19 , 377 P.2d 83 ]; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 , 34, fn. 2 [ 112 Cal.Rptr. 805 , 520 P.2d 29 ]; Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789 , 798 [ 161 Cal.Rptr. 260 ].)

Plaintiff relies on City of Rancho Palos Verdes v. City Council (1976) 59 Cal.App.3d 869 [ 129 Cal.Rptr. 173 ], for its holding that abandonment of a street is a judicial act, subject to the substantial evidence requirement of Code of Civil Procedure section 1094.5. (Id., at p. 889.) We find that case to be the product of flawed reasoning and reject its conclusion.

Rancho Palos Verdes first determined that abandonment of a street has mixed legislative and judicial characteristics, because of the factfinding process involved and the specific rights of persons in the immediate vicinity to use the street. Factfinding does not detract from the legislative nature of an action. (Wilson v. Hidden Valley Mun. Water Dist., supra, 256 Cal.App.2d at p. 279.) It went on to state that Wilson v. Hidden Valley, supra, established a two-pronged test for mixed characteristic actions. If a statutory standard controls, the action is adjudicatory. If there is no such standard, the “dominant concern” of the action dictates the standard of review. Rancho Palos Verdes then concluded that the statutory standard test had been eliminated by the Supreme Court in Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676 [ 129 Cal.Rptr. 97 , 547 P.2d 1377 ],^[3] leaving only the

Rancho Palos Verdes attempted to distinguish the long line of cases holding street abandonment to be a legislative act by determining that it was not until 1963 that an administrative body desiring to abandon a city street was required to hold an evidentiary hearing in order to determine whether the street to be abandoned had any present or future use. (Sts. & Hy. Code, § 8323.)^[4] The court determined that before 1963, since there was no statutory standard to be applied, the act of vacating or abandoning a street was purely legislative (59 Cal.App.3d at p. 886), and that cases decided before that date were inapposite. Through oversight or perhaps purposely, the court did not discuss Cramer v. County of Los Angeles, supra, 96 Cal.App.2d 255 , which found the act to be legislative, where the board determined the road to be unnecessary for present or future use under former Streets and Highways Code section 959, which required such a finding. (96 Cal.App.2d at p. 256.)

Relying upon Ratchford v. County of Sonoma (1972) 22 Cal.App.3d 1056 [ 99 Cal.Rptr. 887 ], and Bowles v. Antonetti, supra, 241 Cal.App.2d 283 , Rancho Palos Verdes stated as a general proposition that abandonment of a street is a judicial act. Bowles is unreliable, as its conclusion that the standard of review is one of substantial evidence neither legally nor logically flows from its determination that abandonment is a legislative action. (See fn. 2, ante, at p. 845.) Similarly, Ratchford may be distinguished. There the focus of the decision was on the individual rights of the petitioner, who was the owner of property abutting the abandoned road. (22 Cal.App.3d at p. 1062.) The respondents contended the trial court had erroneously issued a writ of review. The court began its discussion by recognizing the solid line of authority holding abandonment to be a legislative function. It went on to discuss certain cases, all involving individual or private property rights, held that the factfinding process may be reviewed (22 Cal.App.3d at pp. 1067-1068), and embarked on a detailed discussion of the petitioner’s individual interest in the abandonment. After determining that the petitioner had an interest in the abandonment over and above members of the general public, the court concluded she was entitled to judicial review. Ratchford is therefore limited to its facts, applicable only where the party opposing the abandonment has a direct property interest.

Case law has imposed a second condition upon the abandoning of a public road; the abandonment must be in the public interest. (People v. City of Los Angeles, supra, 62 Cal.App. at p. 786.) In the absence of fraud or collusion, a determination by the board as to what constitutes the public interest is legislative in nature and conclusive. (Ibid.) In the matter before us, the planning commission found the abandonment to conform with the county general plan. Those persons owning property adjacent to Laux Road would be responsible for maintenance, thus relieving the county of that burden. The reasons are sufficient to rebut a claim of fraud. (See Bowles v. Antonetti, supra, 241 Cal.App.2d at p. 288; Cramer v. County of Los Angeles, supra, 96 Cal.App.2d 255 .) The fact that amici requested the closure or that they benefited by the abandonment does not in itself establish fraud or collusion. (Beals v. City of Los Angeles, supra, 23 Cal.2d at p. 386.)

n

Plaintiff next contends the trial court committed prejudicial error by denying his request for judicial notice of the navigability of Butte Sink and failing to inform plaintiff of its denial until the court’s decision was rendered. Plaintiff requested the court to take judicial notice of three facts; (1) Butte Creek is a navigable waterway; (2) that portion of Butte Creek adjacent to Laux Road is easily navigable in a pleasure craft; and (3) the abandoned portion of Laux Road is within the Butte Sink. The purpose of the request was to support his argument that the action of the Board cut off access to a navigable body of water, thus violating article X, section 4 of the California Constitution.^[5] In support of his motion, plaintiff provided the court with a letter opinion from the Attorney General, concerning the issue of the navigability of Butte Creek. The memorandum of decision and order addresses the parties’ contentions regarding the legislative or judicial function of the Board, plaintiff’s standing to bring suit, and the adequacy of the Board’s findings. It either expressly or impliedly dismissed all other issues, including the motion for judicial notice, as meritless. Contrary to section 456 of the Evidence Code, the trial court did not advise the parties that it was denying the request, nor did it indicate for the record its denial. If the implied dismissal of the request was error, it was harmless beyond doubt.

Plaintiff made the conscious choice to use the vehicle of judicial notice to present his evidence, rather than presenting the evidence directly. Navigability is a question of fact, and must be determined on the factual cir