143 Cal.App.2d 198, 21485, Terry v. Bender

Docket Nº:21485
Citation:143 Cal.App.2d 198, 300 P.2d 119
Opinion Judge:[10] Fox
Party Name:Terry v. Bender
Attorney:[7] Albert Vieri for Appellant. [8] Robert E. Rosskopf for Respondent.
Case Date:July 17, 1956
Court:California Court of Appeals

Page 198

143 Cal.App.2d 198

300 P.2d 119

JAMES TERRY, Appellant


JOHN F. BENDER, Respondent.

Civ. No. 21485.

California Court of Appeal, Second District, Second Division

July 17, 1956

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Albert Vieri for Appellant. Robert E. Rosskopf for Respondent



Plaintiff brought an action as a taxpayer for an injunction under section 526a, Code of Civil Procedure, to enjoin the payment of a warrant in the sum of $15,095.74. Such payment had been authorized by the City Council of Compton, California. The payee of the warrant was John F. Bender, employed as a special attorney by the city of Compton. The defendants named, in addition to Bender, are Frank G. Bussing, mayor of Compton, and Gerald L. Chapman, city treasurer.

The appeal is from a judgment of dismissal entered after the court sustained demurrers to the third amended complaint. Leave to amend the first count was granted, but plaintiff declined to do so. Demurrers to the remaining three counts were sustained without leave to amend.

The clerk's transcript contains both the original complaint and the third amended complaint for an injunction. The original complaint has been made a part of the record because Bender, the respondent herein, makes reference thereto in certain specifications of his special demurrer and contends that in determining the sufficiency of the third amended complaint we should examine the allegations in the original pleading. The third amended complaint will be subsequently designated as the complaint and the initial pleading will be referred to as the original complaint.

It should be emphasized at the outset that this court is confronted with questions of law only and must accept the allegations of the complaint as true for the purposes of this appeal.

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Count One

The first cause of action is predicated on a financial transaction between Bender and Bussing which is denominated a bribe and charges that Bussing was induced to use his influence in procuring approval of the warrant in favor of Bender at a secret meeting of the city council because of Bussing's unlawful interest in the warrant. The following facts are alleged:

(a) Plaintiff is a citizen, resident and taxpayer of the city of Compton, California, which is a chartered municipal corporation, and brings the suit in his representative capacity as a taxpayer. Bussing is mayor of Compton and a member of its city council, having been elected for a four-year term of office in July, 1953, and Chapman is city treasurer.

(b) Defendant John F. Bender has been and is employed as special attorney for the city pursuant to a written contract executed on January 11, 1944, a copy of which is attached. This agreement recites that Bender's employment by the city was for the purpose of restoring to the tax rolls all tax-deeded parcels in the city and liquidating all special assessment delinquencies on all properties within the city. To accomplish these purposes, the agreement enumerates Bender's duties, in part, as follows:

(1) Obtaining tax analysis reports on all parcels of tax-deeded or special assessment delinquent property, and furnishing reports to the council in respect thereto.

(2) To appear before any court, board or tribunal in respect to the acquisition by the city of said tax deeds, the clearing of the titles to any of the tax-deeded properties acquired by the city, or the disposal of any such properties.

(3) To perform all legal services required to endeavor to vest merchantable title in such tax-deeded properties in the city.

(4) To handle all escrows or other matters in respect to the resale of said properties.

Bender's compensation was fixed at 25 per cent of the gross amount received on settlements of special assessments and 25 per cent of the gross sales of tax-deeded property sold by the city. The contract was terminable on 90 days' written notice.

(c) On or about October 13, 1953, the city attorney offered to render to the city as a part of the general services of the city attorney, the services which Bender was performing under his contract.

(d) Sometime between October 13, 1953, and November 17,

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1953, in order to prevent the city from cancelling or terminating the contract and to obtain the payment of fees thereunder, Bender gave Bussing $500 in cash, as well as the sum of $6,550 for the purchase of real property. These payments were made with the intent to influence Bussing's vote as mayor and councilman, the parties orally agreeing: (1) that Bussing would have the free use of the property and collect rents therefrom for his own benefit as long as he was able to prevent termination of the contract; and (2) that Bender would finance further improvements on the property and assist Bussing in the real estate business if Bender was successful in retaining his contract with the city and in keeping certain properties which he purchased from the city in the names of Alzola and Webster.

(e) Bussing solicited and received the payments last described from Bender at a time when he was in financial distress, and with the corrupt intent of allowing his vote to be influenced to obtain approval of the warrant of $15,095.74 for Bender. Thereafter, Bussing purchased the real property with Bender's funds and obtained and kept $800 in rents from said property without paying Bender for the use of the property or making any other payments to him. In addition, Bender paid the 1954 taxes due on the property.

(f) In exchange for the money received and in consideration of the promises made, Bussing voted on November 17, 1953, to reject the offer of the city attorney to take over Bender's work and to instruct the city attorney to refrain from filing any civil action against Bender on behalf of the city by reason of certain wrongdoing of Bender. On March 9, 1954, the city council held a hearing on charges made by the city attorney against Bender, whereupon Bussing, pursuant to the corrupt understanding voted to instruct the city attorney that the city council did not wish to take any action against Bender.

(g) In December, 1954, and January, 1955, the city council held secret meetings at which Bussing induced the members to approve a warrant in the sum of $15,095.74 to Bender for services under his contract rendered during the period January 11, 1944, to June 21, 1954. On January 4, 1955, the stage having been set by Bussing's influence on the city council at its secret meetings pursuant to his corrupt agreement with Bender, the city council held its regular meeting at which time Bussing stated he favored approval of the warrant. The city council thereupon voted to approve the warrant. Because

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of the bribery of Bussing and his acquisition of an unlawful interest in the payment of the warrant to Bender, the resolution approving the warrant is void and the city treasurer has no authority to disburse funds pursuant thereto.

(h) The city charter of Compton contains certain provisions prohibiting officials and employees of the city from having an interest in certain contracts and transactions involving the city, which are set forth in haec verba. [*]

(i) By reason of his corrupt agreement with and his receipt of money from Bender, Bussing has acquired a personal interest in the retention of Bender's contract with the city and in the payment of the warrant which is in conflict with the faithful discharge of his duty as mayor. The greater the payments to Bender and the longer Bender retains his contract, the greater will be Bender's ability to carry out his promise of economic reward to Bussing pursuant to their agreement. The payment of bribes to Bussing is an illegal payment under section 526a of the Code of Civil Procedure and contrary to public policy.

(j) Unless Chapman is restrained from signing and paying the warrant and Bussing is restrained from participating in deliberations, discussions and votes of the city council relating to Bender, the city will suffer irreparable damage.

As has been previously stated, Bender's general demurrer to the first cause of action was overruled, and his special demurrer sustained with leave to amend. Following plaintiff's

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election to stand upon his pleading, the court dismissed the complaint. A review of the propriety of this action requires a statement of the several grounds of special demurrer.

There are eight specifications in the special demurrer based on the grounds of ambiguity, uncertainty and unintelligibility of the first cause of action. In the first two specifications, reference is made to the original complaint in which it is asserted the entire transaction between Bussing and Bender was alleged to be in writing, whereas the amended complaint alleges an oral agreement. In this connection, Bender's brief makes much of the fact that the original complaint alleges Bussing executed a note secured by a trust deed on the property he acquired through Bender and gave an assignment of rents as further security. The trust deed, in which one Danciu, Bender's nominee and agent, is named as beneficiary, was attached as an exhibit. The amended complaints omit these matters, and contain a slightly different version of the transaction by which property passed to Bussing. Bender purports to regard this as fatally inconsistent and ambiguous. His argument is founded on an entirely untenable premise. The general rule is that an amended pleading supersedes the original complaint, which thereafter serves no function as a pleading. (Meyer v. State Board of Equalization, 42 Cal.2d 376, 384 ; Schaefer v. Berinstein, 140 Cal.App.2d 278, 284 .) An exception is recognized...

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