Bleamaster v. Los Angeles County

• Decision Date: 20 February 1961
• Citation: 11 Cal.Rptr. 214,189 Cal.App.2d 274
• Court: California Court of Appeals Court of Appeals
• Parties: Leslie F. BLEAMASTER and Norma V. Bieamaster, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Civ. 24888.

Page 214

11 Cal.Rptr. 214

189 Cal.App.2d 274

Leslie F. BLEAMASTER and Norma V. Bieamaster, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Civ. 24888.

District Court of Appeal, Second District, Division 1, California.

Feb. 20, 1961.

Rehearing Denied March 15, 1961.

Hearing Denied April 19, 1961.

Leslie F. Bleamaster, in pro. per., and Norma V. Bleamaster, in pro. per., appellants.

Harold W. Kennedy, County Counsel, and Loyd S. Davis, Deputy County Counsel, Los Angeles, for respondents.

WOOD, President Justice.

In their original complaint, plaintiffs sought to compel the defendants county of Los Angeles and city of Downey to remove a 'curb return' allegedly constructed and maintained on plaintiff's property, and to recover damages arising out of the construction and maintenance of the return. Demurrers of the county and the city were sustained, and plaintiffs were given leave to amend. Plaintiffs filed an amended complaint, and the county and the city demurred thereto. The demurrer of the city was overruled, and the city filed an answer. The demurrer of the county was sustained without leave to amend, and a judgment was entered which recited 'that the plaintiffs take nothing herein, and that the defendant County of Los Angeles be awarded its costs. * * *' Plaintiffs' notice of appeal states that they appeal 'from the judgment of dismissal * * * entered * * * in favor of the County * * *.'

The allegations of the amended complaint are, in substance, as follows: Plaintiffs are the owners of a certain parcel of real property located in Downey. Between April, 1954, and April, 1955, the county took possession of, and appropriated to public use, the northeast corner of said property, and it constructed a 'concrete curb return' thereon. The county offered to pay $89 to plaintiffs as damages arising from the construction of said curb return. Before it constructed the return, the county did not condemn said property. The county has not acquired 'a rightful title to use through court action or by making a settlement with plaintiffs, nor has a prescriptive right to public easement accrued to' the county. The county deprived plaintiffs of their property without due process of law, and it has withheld the property so taken. Plaintiffs have been continually damaged by the county's wilful and wrongful acts. About June 27, 1958, at the request of the county, plaintiffs submitted a claim for damages to the county board of supervisors. A copy of the claim is attached to the amended complaint, marked Exhibit 'A,' and made a part thereof. About September 12, 1958, plaintiffs received a letter which stated that, on September 10, 1958, the board denied plaintiffs' claim for damages. The county refused to remove the curb from plaintiffs' premises, and it maintained the same upon plaintiffs' premises while said premises were a part of the unincorporated community of Downey. The county refuses to remove said curb 'now declaring lack of jurisdiction by virtue of the subsequent incorporation of Downey * * *.' The city of Downey is, and since April 17, 1956, has been, a municipal corporation. Following the incorporation of Downey, an officer of the city was apprised orally of the existing encroachment on plaintiffs' premises, and later, on April 7, 1958, plaintiffs addressed a letter to the city manager calling attention to said curb return. About May 10, 1958, plaintiffs received a letter which stated that the curb return was installed by the county prior to the incorporation of the city, and that the city had no interest in the matter other than 'wishing to see the city streets are improved to the highest standard possible.' The city has not acquired title to use plaintiffs' said premises through court action or by making a settlement with plaintiffs. The city has deprived plaintiffs of their property without due process of law and is putting to public use property for which just compensation has not been paid. The city has withheld plaintiffs' said property, and plaintiffs have been continually damaged by the city's wilful and wrongful acts. The city has refused to remove the curb from plaintiffs' property and threatens to maintain the same and has refused to indemnify plaintiffs for said property now unlawfully used for public purposes by the city. Plaintiffs' premises have been illegally subverted to public use, deprived or a public parkway, and depleted in value. By reason of the 'facts and allegations hereinbefore specified,' plaintiffs' premises have depreciated in value more than 3 per cent, and the value of the premises prior to the injuries complained of was at least $80,000, plaintiffs have sustained special damages of $665 and damages of $2,500. The prayer is for judgment in the amount of $5,565 and 'that the defendants restore to plaintiffs' said premises their rightful parkway and that the defendants be permanently enjoined from maintaining said or any obstruction on plaintiffs' said premises.'

In the claim which was filed with the county (Exhibit 'A') plaintiffs state that they claim damages for 'taking and using our real estate for public use without first paying just compensation therefor as required by the Eminent Domain provision of the State Constitution.' The amounts of damages stated therein are $148.50 for loss of property; $813.50 for severance damages; $202.02 for loss of interest on 'money that should have accrued to' them at the time the property was taken, or for the equivalent rental value of the property, and for 7 per cent interest thereon until 'settlement paid'; and for $1,000 for 'violation of property rights by undue process of law.'

The county demurred to the amended complaint on the grounds that it did not state facts sufficient to state a cause of action against the county. In its points and authorities, filed in support of the demurrer, the county states that the amended complaint did not state a cause of action for the reasons: it did not allege that plaintiffs filed a claim with the county within one year after the claim accured; it appears from the amended complaint that the claim was not filed 'within the one-year period required by Section 29704 of the Government Code'; and it appears from the amended complaint that the 'area in question' was incorporated into the city of Downey on December 17, 1956. The county also demurred on the ground that the amended complaint shows 'on its face' that it is barred by the provisions of section 338, subdivision 2, of the Code of Civil procedure.

Appellants contend that the amended complaint states facts sufficient to constitute a cause of action against the county for an injunction compelling the county to remove the curb return, for recovery of their property, and for damages, or, in the alternative, for damages in inverse condemnation. They contend further that the incorporation of the city of Downey did not relieve the county of the obligation to remove the curb return and to compensate them for the damages sustained, or, in the alternative, to compensate them for the taking and damaging of the property; that sections 29702 and 29704 of the Government Code are not applicable to their claim against the county for damages for the taking and damaging of the property and that said sections are unconstitutional in that they deny plaintiffs the right to compensation, as guaranteed by section 14 of Article I of the state Constitution, for property which was taken and damaged for public use without due process of law.

With respect to their contention that the amended complaint states facts sufficient to constitute a cause of action against the county for an injunction and for recovery of the property, appellants refer to cases in which it was held that where property is taken for public use without payment of compensation or the institution of condemnation proceedings the owner may proceed in an action for recovery of the property and for injunctive relief. In those cases the defendants were the political units which were in control of the property which had been taken. In the present case, the amended complaint alleges that the property is now located in the city of Downey and that the property is now used by the city for public purposes. It does not appear that the county is in possession of the property or that the county has any authority to remove the curb. In view of such allegations, the amended complaint does not state facts sufficient to constitute a cause of action against the county for an injunction or for recovery of the property.

With respect to their contention that sections 29702 and 29704 of the Government Code are not applicable to their claim against the county, appellants cite Wilson v. Beville, 47 Cal.2d 852, 306 P.2d 789 and Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 143 P.2d 12. Section 29704 of the Government Code at the times involved herein provided that: 'Any claim against the county * * * payable out of any public fund under the control of the board [of supervisors], whether founded upon contract, express or implied, or upon any act or omission of the county * * * shall be presented to the board before any suit may be brought thereon * * *,' and section 29702 provided that: 'A claim shall be filed within a year after the last item accrued.' In Bellman v. County of Contra Costa, 54 Cal.2d 363, 5 Cal.Rptr. 692, 353 P.2d 300, which was an inverse condemnation action against a county, it was held that those code sections (relative of filing a claim against a county) were applicable in such an action. In the Bellman case (in distinguishing the Wilson case which is cited above by appellant herein) it was said, at page 368 of 54 Cal.2d, at page 696 of 5 Cal.Rptr.: 'We point out that Wilson v. Beville (1957), supra, 47 Cal.2d 852, 306 P.2d 789, dealt with and discussed a local city charter claims provision, as distinguished from a state legislative enactment...