City and County of San Francisco v. Superior Court of City and County of San Francisco

• Decision Date: 14 December 1959
• Citation: 53 Cal.2d 236,1 Cal.Rptr. 158,347 P.2d 294
• Court: California Supreme Court
• Parties: , 347 P.2d 294 CITY AND COUNTY OF SAN FRANCISCO et al., Petitioners, v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO et al., Respondents; Frank Hinman, Jr., et al., Real Parties in Interest. S. F. 20333.

Page 158

1 Cal.Rptr. 158

53 Cal.2d 236, 347 P.2d 294

CITY AND COUNTY OF SAN FRANCISCO et al., Petitioners, v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO et al., Respondents;

Frank Hinman, Jr., et al., Real Parties in Interest.

S. F. 20333.

Supreme Court of California, In Bank.

Dec. 14, 1959.

Rehearing Denied Jan. 13, 1960.

Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., and Raymond H. Shone, San Francisco, for petitioners.

Jay Jackson, Harold C. Brown and Morgan J. Doyle, San Francisco, amici curiae on behalf of petitioners.

Casper W. Weinberger, Hillsborough, Alvin H. Baum, Jr., and Heller, Ehrman, White & McAuliffe, San Francisco, for respondents and real parties in interest.

SCHAUER, Justice.

The City and County of San Francisco and Donald S. Kavanagh, a property owner therein, seek prohibition to restrain the San Francisco superior court and the Honorable Orla St. Clair, judge thereof, from further proceedings in an action entitled Hinman v. Board of Permit Appeals, No. 489702. In that action the superior court has entered its minute order that a writ of mandate issue and proposes to file a formal written order that its clerk 'shall issue the peremptory writ of mandate commanding defendants individually and as members of the Board of Permit Appeals to set aside their order of April 29, 1959 overruling the order of the City Planning Commission of March 14, 1959 which said order of the said Board of Permit Appeals orders a permit to be granted to defendant * * * Kavanagh to erect an apartment house building * * *.'

There is no conflict of evidence. The superior court heard no evidence whatsoever. The sole ultimate question is whether the superior court's order is an act 'in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.' (Abelleira v. District Court of Appeal (1941), 17 Cal.2d 280, 291(4), 109 P.2d 942, 132 A.L.R. 715.) We have concluded that under the pertinent statutes of this state, applicable charter provisions and ordinances of the City of County of San Francisco, and established decisional law, the superior court exceeded and proposes to exceed its jurisdiction and that petitioners are entitled to the relief sought.

This controversy arises out of the application of plaintiff Kavanagh for a building permit to construct an apartment house on his property at Leavenworth and Bay Streets in San Francisco. Under the city ordinances, including the current City Planning Code, no such building may be erected without first securing a permit from the central permit bureau. That bureau is authorized to issue a permit only after prior approval of the application by such city departments or agencies, including the planning commission, as may have jurisdiction in the premises. Some time prior to March 5, 1959, Kavanagh duly applied for an appropriate permit. The proposed building, under the plans as amended, would comply with all presently effective and relevant city ordinances, but by a vote of four to two the planning commission denied the appliplication. ¹ From such denial Kavanagh appealed to the board of permit appeals, which after hearing, as hereinafter related in more detail, overruled the planning commission's order of denial. It is this order of the board of permit appeals which the superior court, in the action brought by Hinman and others, is about to require the appeals board to vacate.

Hinman and the other plaintiffs in the superior court action, real parties in interest here, own property in the vicinity of Bay and Leavenworth. Their complaint alleges largely conclusions of law: Their property will be irreparably damaged and the general public interest will be adversely affected by the board's approval of Kavanagh's application; the planning commission refused such application because the density and height of the proposed apartment house would exceed those permitted by city ordinance 492-58 ¹ (which, as above noted, will not become effective until May, 1960), and therefore would be contrary to public welfare; Kavanagh appealed to the board of permit appeals; the board, without making written findings, ² overruled the commission. The complaint continues: The board 'acted arbitrarily, unreasonably, and capriciously'; its action 'was not guided by any standards, since neither Section 24, Section 39, nor any other section of the Charter of the City * * * nor any section of the Municipal Code * * * establish any standards for the exercise of the Board's power to overrule the City Planning Commission's denial of the building permit.' The complaint prayed for an order to show cause, restraining order, and injunction pendente lite restraining the board of permit appeals from processing Kavanagh's application and restraining Kavanagh from performing any acts under any building permit issued upon such application; it also prayed for an alternative writ of mandate commanding the board to set aside its decision.

Concurrently with the filing of their complaint Hinman et al. obtained ex parte an order to show cause and temporary restraining order as prayed. The temporary restraining order is still in effect.

The board of permit appeals and Kavanagh filed a general demurrer, answer, and return to the order to show cause. By such return and answer they denied the allegations of injury to plaintiffs or the public and of arbitrariness on the part of the board, and alleged that ordinance 492-58 gave the planning commission no authority to accelerate its operative date, that no stenographic record of the hearing before the board was made (none was presented to the trial court) and that Hinman et al. (on whom the burden rested in the superior court action) did not demand such a record as provided by section 11, part III, of the Municipal Code, ³ and alleged, further, that the board of permit appeals held a full and fair hearing on Kavanagh's appeal, heard all interested parties, and personally viewed the involved area of San Francisco. Attached to the board's answer and return were five exhibits, the authenticity of which is not disputed. Such exhibits are: memorandum of department of city planning to board of permit appeals summarizing the proceedings before the planning commission on Kavanagh's application; minutes of board of permit appeals in Kavanagh's appeal; written opinion of a member of the board explaining his vote to overrule the planning commission; Kavanagh's application for permit; the board's decision and order on Kavanagh's appeal.

The superior court heard legal arguments on the application of Hinman et al. for preliminary injunction, on the demurrer, and on the questions of the need for a transcript of the evidence before the board and for written findings. No oral evidence was taken, there was no factual conflict as to the exhibits, and the matter was determined solely on issues of law from inspection of the pleadings, including, of course, the attached exhibits. On August 27, 1959, the court made the minute order that a writ of mandate should issue. Proposed forms of order directing issuance of the writ ⁴ and of peremptory writ of mandate were prepared and served by counsel for Hinman et al., but have not been signed by the lower court, pending disposition of this prohibition proceeding. As stated above, the city, the board, and Kavanagh then began this proceeding.

The writ of prohibition is an appropriate remedy to arrest the proceedings of a court when there is not a plain, speedy, and adequate remedy in the ordinary course of the law and when the proceedings of the court are without or in excess of its jurisdiction as that term is used in relation to prohibition. (See Code Civ.Proc. §§ 1102, 1103.) The absence of another adequate remedy was determined by this court when we granted an alternative writ. (City of Los Angeles v. Superior Court (1959), 51 Cal.2d 423, 429(1), 333 P.2d 745.)

Hinman et al. urge, however, that prohibition will not lie here because the action taken or about to be taken by the court below, even though determined to be incorrect, is at most erroneous and not without or in excess of that court's jurisdiction. But in prohibition matters, as enunciated in Abelleira v. District Court of Appeal (1941), supra, 17 Cal.2d 280, 288, 291(3, 4), 109 P.2d 942, the phrase 'lack of jurisdiction' may (3) 'be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. * * * (17 Cal.2d at page 291, 109 P.2d at page 947.) (4) Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.' In Rodman v. Superior Court (1939), 13 Cal.2d 262, 269-270, 89 P.2d 109, quoting from Spreckels Sugar Co. v. Industrial Acc. Comm. (1921), 186 Cal. 256, 260, 199 P. 8, it is stated that the word 'jurisdiction,' is (6) 'frequently used as meaning authority to do the particular thing done, or, putting it conversely, a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which the board or tribunal has, the doing of something in excess of the authority possessed.' In another case the rule is thus stated: 'Where a court has no jurisdiction to act except in a particular manner, it may be restrained by prohibition from acting in a different, unauthorized manner.' (Lawson v. Superior Court (1957), 155 Cal.App.2d 755, 760(6), 318 P.2d 812.)...