California Water & Tel. Co. v. Los Angeles County

• Citation: 253 Cal.App.2d 16,61 Cal.Rptr. 618
• Court: California Court of Appeals
• Decision Date: 31 July 1967
• Parties: CALIFORNIA WATER & TELEPHONE COMPANY et al., Plaintiffs and Respondents, v. The COUNTY OF LOS ANGELES et al., Defendants and Appellants. Civ. 29880.

Page 618

61 Cal.Rptr. 618

253 Cal.App.2d 16

CALIFORNIA WATER & TELEPHONE COMPANY et al., Plaintiffs and Respondents, v. The COUNTY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 29880.

Court of Appeal, Second District, Division 5, California.

July 31, 1967.

Burris & Lagerlof and H. Jess Senecal, Los Angeles, for plaintiffs and respondents.

Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for defendants and appellants.

HUFSTEDLER, Associate Justice.

The County of Los Angeles and the county engineer appeal from a judgment declaring that the county 'Water Ordinance,' ordinance No. 7834, cannot constitutionally apply to investor-owned public utilities and enjoining the county and the county engineer from enforcing the ordinance against the public utilities.

Statement of the Case

The action was brought by the public utilities and the California Water Association, an organization to which each of the respondent public utilities belongs, ¹ on behalf of the respondents and all other investor-owned public utilities serving water within the unincorporated area of the County of Los Angeles, to test the constitutionality of the Water Ordinance and certain related ordinances as applied to them.

Respondents averred that the appellants could attempt to compel them to comply with the Water Ordinance and certain related ordinances, that the challenged ordinances could not constitutionally apply to them because the state has fully occupied the field of public utilities regulation by adopting article XII, section 23 of the California Constitution and the state Public Utilities Code, and that appellants were entitled to a declaration that the ordinances as applied to them were unconstitutional and an injunction restraining their enforcement against respondents. At the trial respondents withdrew their request for relief in respect of all ordinances other than the Water Ordinance.

Appellants countered with the alternative contentions that there was no justiciable controversy, that the ordinance could constitutionally apply to respondents, and that even if some of the ordinance could not apply, one section of it was constitutionally applicable to respondents.

The facts are not disputed. Respondents are private corporations which own and operate plants and equipment for the production, transmission and delivery of water. Each of the respondents furnishes water within the unincorporated sections of the County of Los Angeles. On August 2, 1960, the board of supervisors adopted the Water Ordinance (No. 7834). For the recited purpose of promoting a minimum level of fire protection performance for water supply facilities the Water Ordinance requires that all persons who supply domestic water to more than one customer ² must obtain either a 'Water Utility Certificate of Registration' or a 'Water Utility Authorization' as a condition precedent to the construction of any portion of a water system. ³ The water utility certificate of registration is a form filed with the county engineer containing an agreement to abide by the terms of the Water Ordinance. ⁴ The water utility authorization is obtained by filing an application with the Water Works and Utility Division of the office of the engineer which includes the plans and specifications of the water facility. If the engineer approves the plans and specifications, he issues the authorization. The county engineer is delegated authority to require revisions of plans and specifications and to promulgate standards of materials and construction to be published in a utility manual, to which standards the applicant must adhere. ⁵ The Water Ordinance sets detailed requirements for service, design and construction of water facilities. ⁶

Section 152 of the Water Ordinance requires plans and specifications for water service to new subdivisions to be submitted to the county engineer 'as required by Section 196 of Ordinance No. 4478, entitled 'Subdivision Ordinance" and further requires that there shall be included with such plans and specifications 'a certificate from a water utility that the proposed system can be operated by the water utility, and that the system will in every particular, meet the requirements of this ordinance.' Section 153 provides that '(a) water utility * * * shall supply to the applicant for a building permit the certificate, if any, required by Section 307 of said Ordinance No. 2225, the Building Code ⁷, if the facts are such that such water utility * * * truthfully can execute such a certificate.' ⁸

A violation of any of the provisions of the Water Ordinance constitutes a misdemeanor. (Section 17.)

Following the passage of the Water Ordinance, the county engineer notified respondents and other water purveyors of the adoption of the Water Ordinance and transmitted copies of the utility manual promulgated pursuant to the Water Ordinance. In December of 1960 the county engineer advised respondents of the registration requirements and purged them to comply with the Water Ordinance.

Respondents registered as required by the county engineer. At all times respondents have complied with the provisions of the Water Ordinance, and there has been no prosecution of any of the respondents.

Justiciable Controversy Presented

Appellants principally contend that respondents are not entitled to either declaratory or injunctive relief because the cause was never justiciable. Under the encompassing label of nonjusticiability, appellants present a clutch of arguments variously challenging the existence of any ground to invoke the judicial process, the propriety of the trial court's exercising its discretion in granting declaratory relief, the merits of the declaration issued, and the basis for issuing the injunction.

The principle that courts will not entertain an action which is not founded on an actual controversy is a tenet of common law jurisprudence, the precise content of which is difficult to define and hard to apply. The concept of justiciability involves the intertwined criteria of ripeness and standing. A controversy is 'ripe' when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. ⁹ One who invokes the judicial process does not have 'standing' if he, or those whom he properly represents, does not have a real interest in the ultimate adjudication because the actor has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented. ¹⁰ When justiciability in a jurisdictional sense exists, ¹¹ the ripeness and standing concepts are metamorphosed in a declaratory relief action into guides for the exercise of judicial discretion in granting or withholding that remedy, and the trial court's exercise of discretion will not be disturbed on appeal unless its discretion has been abused. (Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753, 762, 161 P.2d 217, 162 A.L.R. 747; Bess v. Park (1955) 132 Cal.App.2d 49, 52, 281 P.2d 556; Mefford v. City of Tulare (1951) 102 Cal.App.2d 919, 922, 228 P.2d 847.)

The present controversy was within the judicial ken. The factors which appellants say destroy justiciability are not in the nature of jurisdictional facts. They are merely factors which are properly considered in exercising discretion committed to the court by section 1061 of the Code of Civil Procedure: 'The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.'

Among the factors affecting exercise of judicial discretion are these: the penal character of the ordinance attacked, the need for now determining the validity of the ordinance, the character of the respondents' interest and that of the public in the subject matter, and the existence of alternative remedies, if any, to test the validity of the ordinance.

Declaratory relief is not foreclosed simply because the subject matter of the action is a penal statute or ordinance. (Charles L. Harney, Inc. v. Contractors' Board (1952) 39 Cal.2d 561, 247 P.2d 913; LaFranchi v. City of Santa Rosa (1937) 8 Cal.2d 331, 65 P.2d 1301, 110 A.L.R. 639; Sandelin v. Collins (1934) 1 Cal.2d 147, 33 P.2d 1009, 93 A.L.R. 956; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 341 P.2d 310 (passim). See also Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 678, 3 Cal.Rptr. 158, 349 P.2d 974; Portnoy v. Superior Court (1942) 20 Cal.2d 375, 378, 125 P.2d 487.) But this does not mean that declaratory relief is always appropriate to challenge the validity of a penal statute or to obtain a construction of it for a plaintiff's benefit. Declaratory relief is properly denied, for example, if the factual matrix is insufficiently set to permit a useful and intelligent adjudication to be made (Witschner v. City of Atchison (1941) 154 Kan. 212, 117 P.2d 570), or if the issues can be better decided in a criminal proceeding (People v. Ray (1960) 181 Cal.App.2d 64, 67, 5 Cal.Rptr. 113; see also Nathan H. Schur, Inc. v. City of Santa Monica (1956) 47 Cal.2d 11, 17, 300 P.2d 831; Manchel v. County of Los Angeles (1966) 245 Cal.App.2d 53, 505, 54 Cal.Rptr. 53). The character of the challenged statute or ordinance is merely one factor to be considered with all the other facts and circumstances to determine the propriety of granting declaratory relief.

A person need not violate or plan to violate a penal ordinance before he can obtain a declaration construing it and deciding its application to him. (Cf. Charles L. Harney, Inc. v. Contractors' Board, supra, 39 Cal.2d 561, 247 P.2d 913; Mefford v. City of Tulare, supra, 102 Cal.App.2d 919, 922, 228 P.2d 847; see also Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 906, 31 Cal.Rptr. 800, 383 P.2d 152.) To hold otherwise is like 'telling the...