Agnew v. City of Los Angeles

Citation190 Cal.App.2d 820,12 Cal.Rptr. 507
PartiesR. W. AGNEW, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, and Grover Wintz, Chief of the Electrical Division of the Department of Building and Safety of the City of Los Angeles, Defendants and Respondents. Civ. 24676.
Decision Date05 April 1961
CourtCalifornia Court of Appeals

R. W. Agnew, in pro. per.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., and Marcus E. Crahan, Jr., Deputy City Atty., Los Angeles, for respondents.

VALLEE, Justice.

Appeal by plaintiff from a judgment of dismissal entered on the sustaining of defendants' demurrer to an 'Amended Second Supplemental Complaint.' Plaintiff was granted leave to amend 'with directions that the Amended complaint consolidate such allegations of the Complaint as plaintiff considers applicable with those of the Supplemental Complaints, in one coordinated pleading.' Plaintiff declined to amend or to consolidate, and judgment of dismissal followed. Plaintiff also appeals from numerous intermediate orders, including an order denying a preliminary injunction. The intermediate orders other than that denying a preliminary injunction are not appealable, and the appeals from those orders will be dismissed. Normally, an order denying a preliminary injunction is appealable. Code Civ.Proc. § 963; McCarty v. Macy & Co., 153 Cal.App.2d 837, 840, 315 P.2d 383. That order dealt solely with the right to preventive relief pending final judgment and denied such relief. The entry of judgment rendered to question of the right to interim relief moot and the appeal from that order will also be dismissed. Agnew v. City of Los Angeles, 51 Cal.2d 1, 2, 330 P.2d 385.

Plaintiff, an electrical contractor licensed by the state under sections 7000-7145 of the Business and Professions Code, brought this suit to enjoin enforcement of certain ordinances of defendant City of Los Angeles on the ground they conflicted with general law and thus were unconstitutional under Article XI, section 11, of the Constitution. The suit was filed May 23, 1957.

The Municipal Code of Los Angeles required a permit to install electrical wiring. To receive the permit, the contractor was compelled to register with the city; to submit a description of the proposed electric wiring, plans and specifications and a suitable diagram and 'such additional information as may be considered necessary by the Department for the proper enforcement of the provisions of this Code'; and to appear personally at an office of the department and furnish miscellaneous information. The Electrical Code required that the contractor, in order to obtain a license tax registration certificate number, pay the city clerk a fee based on the amount of his gross receipts.

The trial court sustained defendants' demurrer to the original complaint without leave to amend and entered judgment for defendants. On appeal the Supreme Court reversed, holding the state had occupied the field of licensing electrical contractors and that the challenged provisions of the ordinance were invalid to the extent they conflicted with the Business and Professions Code. Agnew v. City of Los Angeles, 51 Cal.2d 1, 330 P.2d 385. The sections of the Municipal Code held invalid were numbered 11.00, 21.03, 21.06, 21.08, 21.09, 21.12(a), 21.12(b), 21.188, and 21.190. The sections of the Electrical Code held invalid were numbered 93.0201, 93.0204, 93.0205(2), 93.0501, and 93.0504. The Electrical Code is part of the Municipal Code.

On December 8, 1958, after the remittitur went down on the prior appeal, the Municipal Code was amended to provide:

'Section 1. Section 93.0104 of the Los Angeles Municipal Code is hereby amended to read:

'Sec. 93.0104. Prohibited Acts

'No person shall install, use, operate or maintain any electric wiring or equipment which does not comply with all provisions of this Code. No person shall offer for sale, rent, lease or distribution any electrical equipment which does not comply with all applicable provisions of this Code. No person shall use, operate or maintain any electrical wiring after the effective date of this ordinance unless an application for inspection has been issued therefor by the Department.

'Sec. 2. Sections 93.0201 and 93.0205 of the Los Angeles Municipal Code are hereby amended to read:

'Sec. 93.0201. Application for Inspection Required

'No person shall perform, allow or cause to be performed the following acts on premises owned, operated, rented or leased, or controlled by him, directly or indirectly, in whole or in part, unless an application for inspection has been issued to him or his authorized agent.

'1. The installation of electric wiring;

'2. The alteration, reconstruction or repair of electric wiring.

'Sec. 93.0205. Who May Obtain Applications for Inspection

'Applications for Inspection shall be issued only to the owner, manager, lessee or tenant, or his duly authorized agent, of the premises upon which the work for which said application is required is to be done.

'Sec. 3. Subsection (a) of Section 93.0206 of the Los Angeles Municipal Code is hereby amended to read:

'(a) Plans and specifications required by the provisions of Subsection (b) of this section shall be prepared by, and bear the signature and registration number of an Electrical Engineer who is duly registered by the State of California Board of Registration for Civil and Professional Engineers.

'Exception:

'Plans and specifications required for Items 7 to 10, inclusive, of Subsection (b) of this section may be prepared and submitted by a person holding a State License as an Electrical Contractor or by a Maintenance Certificate Holder.

'Sec. 4. The Exception of Subsection (i) of Section 93.0206 of the Los Angeles Municipal Code is hereby repealed. 1

'Sec. 5. Section 93.0210 of the Los Angeles Municipal Code is hereby repealed. 2

'Sec. 6. Subsection (d) of Section 93.0229 of the Los Angeles Municipal Code is hereby amended to read:

'(d) The Department may recheck installations upon which violations continue to exist at intervals of 30 days or more until either the violations are eliminated or a total of three rechecks are made. The fees specified in Subsection (b) of this section shall apply for each recheck inspection.

'Sec. 7. Section 93.0501 of the Los Angeles Municipal Code is hereby amended to read:

'Sec. 93.0501. Qualified Person

'(a) It is unlawful for any person who is not qualified to install, alter, reconstruct or repair any electrical wiring unless such person is under the direct supervision of a qualified person.

'(b) A qualified person is one who holds a valid Contractor's License in the proper classification issued by the State of California, or one who holds a valid Certificate of Registration issued pursuant to this Division, or one who is a home owner and who has been qualified to satisfactorily perform work in or on his own single family dwelling.

'Sec. 8. Whenever in any section of Article 3 of Chapter 9 of the Los Angeles Municipal Code [the Electrical Code] the word 'permit' appears, said section shall be deemed to be amended by the insertion of the words 'application for inspection' in lieu thereof. Whenever in any section of said Article and Chapter the word 'permittee' appears, said section shall be deemed to be amended by the insertion of the word 'applicant' in lieu thereof.

'Sec. 9. This ordinance is hereby declared to be urgently required for the immediate preservation of the public peace, health and safety, and shall take effect immediately upon its publication.

'The following is a statement of facts showing its urgency:

'A recent decision of the California Supreme Court has invalidated the present electrical code system of registration and permits with respect to State licensed electrical contractors. This results in the absence of ordinance authority for regulation and control of the character and quality of electrical installation. This lack of authority directly affects the public health, welfare and safety.'

On December 16, 1958 the Municipal Code was amended to provide:

'Section 1. Subsection (b) of Section 21.00 of the Los Angeles Municipal Code is hereby amended to read:

"License Tax' shall mean the privilege tax imposed upon persons engaged in the businesses or occupations described in Sections 21.50 to 21.198, inclusive of this Article for the privilege of engaging in such businesses or occupations within the City of Los Angeles. * * *

'Sec. 2. Section 21.03 of the Los Angeles Municipal Code is hereby amended to read:

'Imposition of Tax

'(a) Subject to the provisions of this Article, a license tax registration certificate must be obtained and a license tax must be paid by every person engaged in any of the businesses or occupations specified in Sections 21.50 to 21.198, inclusive, of this Article; and a license tax is hereby imposed in the amount prescribed in the applicable section. No person shall engage in any business or occupation subject to tax under the provisions of this Article without obtaining a registration certificate and paying the tax required thereunder.

'(b) The license tax registration certificate required to be obtained and the tax required to be paid are hereby declared to be required pursuant to the taxing power of the City of Los Angeles solely for the purpose of obtaining revenue. Compliance with such requirements shall not be construed to be a condition precedent to engaging in any business or occupation within the City of Los Angeles where the imposition of such a condition precedent would be contrary to law.'

Thereafter numerous pleadings were filed by both parties and divers proceedings had, concluding with plaintiff filing the Amended Second Supplemental Complaint. That complaint is a complete pleading. As defendants say, it does not merely add to the original complaint something...

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