Baroldi v. Denni
| Decision Date | 29 November 1961 |
| Citation | 17 Cal.Rptr. 647,197 Cal.App.2d 472 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Thomas A. BAROLDI et al., Plaintiffs & Appellants, v. Job J. DENNI et al., Defendants & Respondents, Peter Gorzeman, Intervenor & Respondent. Civ. 6662. |
Musick, Peeler & Garrett, Los Angeles, for appellants.
William Camil, Santa Fe Springs, for respondents.
Franklin T. Hamilton and Gray, Binkley & Pfaelzer, Los Angeles, for intervenor and respondent.
This is an appeal by plaintiffs from a minute order which dissolved a temporary restraining order, denied a preliminary injunction and ordered the issuance of a Writ of Mandate.
Facts.
By their complaint, filed November 14, 1960, plaintiffs allege: that they are Councilmen, taxpayers and qualified electors of the defendant City of Cypress; that defendants are the Councilmen, City Clerk and City of Cypress; that on August 22, 1960, proceedings were commenced for recall of plaintiffs as City Councilmen by notice of intention to circulate petition for recall; that the petitions were presented to the City Clerk and are to be filed with the Council November 14, 1960; that on February 29, 1960, petitions for recall of plaintiffs were filed with said City Council; that a substantial number of the signatures on the petition of August 22, 1960 were obtained by fraud and misrepresentation; that because of said fraud and because such proceeding was commenced within six months of the date of last recall proceeding, the petition is void; that unless restrained by court order said Council will call a recall election. They pray for a preventative injunction.
On November 16, 1960, an order to show cause why a temporary injunction should not be granted was made and a temporary restraining order was issued forbidding the calling of the election and the matter was set for hearing on November 18, 1960.
On November 17, 1960, permission was granted to Peter Gorzeman to intervene. By the Complaint in Intervention, intervenor alleges, inter alia, that he is a qualified voter of City and a signer of the recall petition. He denies plaintiffs' allegations of fraud. He denies plaintiffs' allegations of insufficiency of the recall petition and denies that previous petitions for recall of plaintiffs were filed on February 29, 1960. By what is termed a second cause of action intervenor alleges, inter alia, that the earlier petitions for recall were filed February 10, 1960 as to McCarney and February 18, 1960 as to Baroldi. By a third cause of action he sets forth in detail the regularity of the steps taken for presentation of the recall petition, failure of the Clerk to file the petitions with the Council November 14, 1960, adjournment of the Council meeting to December 14, 1960, capricious abuse of discretion in Council in failing to call election, and lack of remedy at law. By a fourth cause of action intervenor again alleges capricious conduct in the Clerk's action in rejecting and failing to count a substantial number of the signatures to the petition. Intervenor prays that plaintiffs take nothing; that a peremptory writ of mandate be issued commanding the City Clerk to submit the petitions to the Council with appropriate certificates; commanding the Council to immediately hold a special meeting and at said meeting to call a special election for said recall. Alternatively, intervenor prays mandate to compel the City Clerk to reexamine and count all signatures theretofore unlawfully rejected, certify and file the petitions and further commanding the Council to call said special recall election.
By answer to the complaint for injunction, the defendants admit that the recall petitions were submitted to the City Clerk September 26, 1960; checking was completed October 11, 1960; that the City Clerk has determined that the petitions contain valid signatures of more than 25% of the registered voters of city and pray for court instruction.
By answer to the complaint in intervention, defendants allege the date of the City Clerk's certificate should be October 11, 1960 and not October 12; that the date of publication was September 1, 1960 and posting was September 2, 1960; that the petitions were signed by 201 qualified voters as to Baroldi and not 241, and by 190 qualified voters as to McCarney and not 238; deny improper rejection of signatures; admit failure to call the election but allege this was by reason of the original court order granting temporary restraining order. They pray the court's guidance.
Plaintiffs answered the complaint in intervention and admitted the dates of filing of the earlier recall petitions were February 10, 1960 and February 18, 1960 as alleged; they admitted the service on them on August 22, 1960 of notice of intention to circulate petitions for recall; publication September 1, 1960 and posting on September 2, 1960; the filing of the petitions on September 26, 1960, the ascertainment and certificate by the City Clerk that 201 registered qualified voters had signed the petition as to recall of Baroldi and 190 as to McCarney and that each of said petitions had been signed by not less than 25% of the voters of the City on the day of the filing of the petition with the City Clerk. They denied all other allegations of intervenor's complaint.
On December 2, 1960 both the order to show cause on plaintiffs' complaint and the order to show cause on the intervenor's complaint were heard at the same time with all parties represented by counsel. The record does not show that anyone attempted to introduce any evidence. The cause was argued and submitted. The court ordered the original restraining order dissolved and the injunction denied. It found that all of the proceedings up to and including the certificate of the City Clerk certifying to the sufficiency of the petitions have been regularly taken. It ordered that the City Clerk file has said certificate with the next regular or adjourned regular meeting of the Council; that the defendant Councilmen shall at said meeting call, order and provide for the holding of a special election at the time and in the manner provided by law to determine whether said Councilmen Baroldi and McCarney shall be recalled from the offices of Councilmen and members of the City Council of the City of Cypress. The court also provided for the canvass of the vote as provided by law and due return to show execution of writ. Plaintiffs appeal. After the taking of the appeal plaintiffs moved for a new trial, which motion, this court has been advised, was denied.
The Judgment.
The plaintiffs contend that the trial court erred in granting judgment at the hearing. That it should have made an order for amendment of the pleadings or should have taken evidence. With this we cannot agree. Plaintiffs nowhere contend that they ever asked to be permitted to amend nor does the record indicate any such motion. They do not even now contend that they could truthfully allege anything different from the facts set forth by the pleadings. They do not contend that they were not fully advised of intervenor's application for a writ of mandate. They were represented...
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