City Council of City of Santa Monica v. Superior Court of Los Angeles County

CourtCalifornia Court of Appeals
Citation204 Cal.App.2d 68,21 Cal.Rptr. 896
Decision Date24 May 1962
PartiesCITY COUNCIL OF the CITY OF SANTA MONICA et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. UNITED WESTERN NEWSPAPERS, INC., et al., Real Parties in interest. Civ. 26284.

Robert G. Cockins, City Atty., Robert D. Ogle, Asst. City Atty., James H. Shumar, Santa Monica, for petitioners.

No appearance for respondent.

Fogel, McInerny & Taft and Moe M. Fogel, Cornelius W. McInerny, Jr., and William J. Taft, Santa Monica, for real parties in interest.

Stanley Mosk, Atty. Gen., Charles E. Corker, Asst. Atty. Gen. and Joan D. Gross, Deputy Atty. Gen., amicus curiae on behalf of real parties in interest.


This is a petition for a writ of prohibition to restrain the superior court from further proceedings in an action entitled 'United Western Newspapers, Inc., a California corporation, and C. Deane Funk, Petitioners, versus The City Council of the City of Santa Monica, a municipal corporation, et al.' In that action petitioners seek to compel the city council and its individual members to make public and permit inspection of all 'minutes and reports referred to in this petition.' This has reference to the minutes of a meeting of the city council on February 16, 1962, and the report of private investigators hired by the council to investigate the circumstances surrounding the dismissal of Otto Faulkner, Chief of Police.

It is alleged in the petition for a writ of mandate that on or about January 15, 1962, the acting city manager of the city of Santa Monica, at the direction of the city manager, discharged Otto Faulkner, Chief of Police of said city; that the city charter provides the city council shall appoint a city manager who shall appoint and may remove the chief of police; that on or about January 16, 1962, the city council employed private investigators to investigate the circumstances surrounding the dismissal of Otto Faulkner; that on February 16, 1962, the city council held a meeting closed to the public at which meeting it is alleged, upon information and belief, the council received from the investigators a detailed written report 'covering the activities of George Bundy, Otto Faulkner and other members with the City of Santa Monica'; that petitioners and other members of the public were refused admittance to said meeting of February 16, which, it is asserted, was in violation of Government Code, section 54950 et seq., and were refused the right to inspect the minutes, records and other matters pertaining to said meeting, including the investigators' report; that, pursuant to section 1227 of the Government Code, they, as taxpayers, residents and citizens of the city of Santa Monica, and other members of the public, are entitled to such inspection.

The general demurrer of the city council to said petition was overruled, an answer was filed, and the matter set for hearing. Thereupon the within petition for a writ of prohibition was filed in this court by the city council, it being the contention of petitioners herein that further proceedings in mandate will be in excess of the jurisdiction of the trial court. Petitioners assert that the petition fails to state facts showing a right in petitioners to inspect, and a duty on the part of the city council to permit inspection of, the report of the investigators.

The first question concerns the availability to petitioners herein of the writ of prohibition. 'That writ is an appropriate remedy to arrest the proceedings in a court when they are 'without or in excess of' its jurisdiction and there is not a plain, speedy and adequate remedy in the ordinary course of law. Code Civ.Proc. §§ 1102, 1103.

'Notwithstanding the fact that the respondent court unquestionably has jurisdiction to grant or deny the motion for inspection, this court may act in a proper case when it appears that otherwise a failure of justice will occur in a matter of public importance by a wrongful or excessive exercise of jurisdiction.' (City & County of S. F. v. Superior Court, 38 Cal.2d 156, 160, 238 P.2d 581, 583.)

By the issuance of the alternative writ herein this court determined the inadequacy of any other remedy, and it is not contended by respondent court or real parties in interest that the remedy by appeal at the conclusion of a hearing would be an adequate remedy. 1 In opposition to the issuance of the writ of prohibition, real parties contend that the jurisdiction of the trial court was not challenged in that court, thus petitioners are not in a position to seek the writ. They rely upon Rescue Army v. Municipal Court, 28 Cal.2d 460, 465, 171 P.2d 8, 12, which holds that '[t]he petition should affirmatively allege that the challenge to jurisdiction was raised in the lower court.' The court in that case points out, however, that when the trial court has heard and determined that it has jurisdiction, prohibition will lie to prevent the exercise thereof when that jurisdiction has been challenged in that court 'by demurrer, motion, plea or other objection of some kind.' It went on to hold that in the circumstances there presented it was apparent that the court had decided in favor of its own jurisdiction and was proceeding to exercise it; it was determined that 'it is not in the interests of justice to refuse to entertain the application because of the absence of a more complete showing in the petition.' (Pp. 464-465, 171 P.2d p. 12.) It is aptly stated in Monterey Club v. Superior Court, 48 Cal.App.2d 131, 143, 119 P.2d 349, 355: 'While it is true, as claimed by respondent, that ordinarily as a condition precedent to an application for a writ of prohibition on the ground of want of jurisdiction in the inferior tribunal to make the order, the claim of such excess or lack of jurisdiction should be called to the attention of the respondent tribunal unless the complaint on its face reveals its failure to state a cause of action, nevertheless this is not essential to the jurisdiction of this court to grant a writ of prohibition. [Citation.] This is merely a rule adopted by reviewing tribunals as a matter of respect for and consideration of the lower court and to aid in minimizing, if not preventing, unnecessary litigation.' (See also, Harden v. Superior Court, 44 Cal.2d 630, 637-638, 284 P.2d 9.

Upon the hearing of the general demurrer in the trial court it was claimed and fully argued that the petition for mandate failed to state facts showing that the investigation report was a public writing within the provisions of sections 1888 and 1894 of the Code of Civil Procedure, or the existence of a present legal duty on the part of the city council, under section 1227 of the Government Code, to make the report public. It thus appears that in overruling the demurrer and in setting the matter for hearing the trial court has determined that it has jurisdiction to compel the city council to act, based upon the petition for the writ, and has indicated its intention to hear the case. (See, Housing Authority of City of Eureka v. Superior Court, 35 Cal.2d 550, 557, 219 P.2d 457.) Prohibition is the proper remedy to test the jurisdiction of the superior court to proceed in these circumstances. (City & County of S. F. v. Superior Court, 53 Cal.2d 236, 244-245, 1 Cal.Rptr. 158, 347 P.2d 294.)

We, therefore, reach the merits of the jurisdictional question, which must be determined under the principle that '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.' (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291, 109 P.2d 942, 948, 132 A.L.R. R. 715.)

Whether an excess of jurisdiction has been shown depends upon the legal nature of the report and the legal duty of the council with respect thereto. Section 1085 of the Code of Civil Procedure provides that a writ of mandate 'may be issued * * * to any * * * corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such * * * corporation, board or person.' Thus, mandamus issues only to compel the performance of an act which the law specially enjoins. An applicant for the writ must show that his right thereto is clear and certain. (Wallace v. Board of Education, 63 Cal.App.2d 611, 616, 147 P.2d 8.)

The law under which the writ of mandate is sought is Government Code, section 1227, which provides: 'The public records and other matters in the office of any officer, except as otherwise provided, are at all times during office hours open to inspection of any citizen of the State.' Section 1892 of the Code of Civil Procedure also accords to every citizen the 'right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute.' Section 1888 of the same code defines 'public writings' as all written acts or records of the acts of official bodies, tribunals and public officers, and section 1894 divides public writings into four classes: laws, judicial records, other official documents, and public records of private writings.

'In order that an entry or record of the official acts of a public officer shall be a public record, it is not necessary that such record be expressly required by law to be kept; but it is sufficient if it be necessary or convenient to the discharge of his official duty. 'Any record required by law to be kept by an officer, or which he...

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