City of Buena Park v. Boyar

Citation8 Cal.Rptr. 674,186 Cal.App.2d 61
PartiesCITY OF BUENA PARK, a Municipal Corporation, Respondent, v. Louis H. BOYAR, Penam Construction Co., Millbrae Construction Co., Westpark Construction Co., Pitt Construction Co., Maruth Construction Co., Amboy Construction Co., Baystate Construction Co., Gem Construction Co., Dorel Construction Co., and General Casualty Company of America, Appellants. Civ. 6357.
Decision Date02 November 1960
CourtCalifornia Court of Appeals Court of Appeals

Horowitz & Howard and Fred Horowitz, Los Angeles, for appellants.

James F. Judge, Fullerton, for respondent.

GRIFFIN, Presiding Justice.

Plaintiff and respondent, City of Buena Park, a municipal corporation of the sixth class, brought thi action gainst defendants and appellants Louis H. Boyar, subdivider, and certain named corporations, owners of land in Buena Park, upon a contract, an undertaking and a bond executed by defendant and appellant General Casualty Company of America, seeking a judgment of $50,000 claimed due under them. (Unless otherwise stated, references to defendants shall exclude appellant General Casualty Company of America.) Defendants were desirous of subdividing a tract upon which they intended to construct homes. Pursuant to the Subdivision Map Act (Business and Professions Code, § 11500 et seq.), they sought to have the map of Tract 2539 approved. Plaintiff city imposed certain conditions to such approval. These conditions included the installation of streets, curbs, gutters, sidewalks, etc. In addition, they demanded, as a condition precedent to such subdivision map approval, that defendants pay certain sums plus $50,000 to be spent by the City to construct an open drainage ditch or a concrete pipe from Tract 2236 (which tract adjoins Tract 2539 on the north) to the Fullerton Relief Channel. The open drainage ditch or concrete pipe was intended to provide drainage for land south and east of Tract 2539 as well as Tract 2236. Defendants executed the undertaking sued upon and it is dated April 22, 1955 and the map was approved May 10, 1955. All required work was done by the subdivider and all payments made except the payment of the $50,000. By the terms of said undertaking, the City agreed to accept for recordation in Orange County the subdivision map of defendants' Tract 2539, to cause to be affixed thereto the signatures of the authorized agents of the City and to accept the dedication of the streets, alleys and easements in the tract. The particular obligation of defendants here sought to be enforced is contained in paragraph 10 of said contract reading as follows:

'Upon demand by the City the subdivider shall pay to the City the sum of $50,000 which sum shall be spent by the City for the purpose of constructing either:

'(1) An open drainage ditch running northwesterly from Tract 2236 to the Fullerton Relief Channel, or

'(2) A suitable concrete pipe from Tract 2236 running North on Stanton Ave. to the Fullerton Relief Channel.

'In the event that the City determines within nine months that it is not practical to construct the open ditch, then the City will immediately take steps to build the concrete pipe.

'In the event that an open ditch is practical, the City will commence action to construct same within 18 months of the date of this undertaking.

'It is understood that the $50,000 shall be spent on the cost of the project which is defined as all direct and indirect, legal, engineering, and rights of way costs which may be incurred by the City.

'In the event that the City of Buena Park constructs the concrete pipe in Stanton Avenue and the cost of such construction is less than $50,000, then the City of Buena Park shall reimburse to the subdivider the difference between $50,000 and the cost of the construction.'

The City had nine months from April 22, 1955, under paragraph 10 of the contract, to decide whether the drainage would be by means of concrete pipe or an open drainage ditch. This decision was timely made in December 1955. It was then obligated to commence construction of the open ditch within 18 months of the contract date, and the work was so commenced by the City on October 20, 1956. On May 21, 1957, seven months from the time of commencement of work, plaintiff had caused to be constructed approximately 60% of the open ditch to Western Avenue. This point was about one-half mile from defendants' tract of land, to which the contract contemplated the ditch would ultimately reach. The City let out to bid the 60% portion and it was completed and accepted on February 26, 1957. At that time the City wrote defendant that the City had constructed the open drainage structure at a cost of $64,582.04 and demanded the $50,000 in question. Apparently the defendants refused to pay this sum because the ditch was not in fact fully completed. On August 5, 1957, this action was brought in Orange County and subsequently transferred to Riverside County (Code Civ.Proc. § 394) and trial was had on May 20, 1959 on an agreed statement of facts and other evidence.

The trial court found generally in accord with the facts stated; that the City had constructed a reasonable portion of the entire drainage ditch within the time required and defendant owners, at the time demand was made, had received substantial performance by the City of their undertaking and agreement and it was their duty and obligation to pay over to the City the $50,000. It then found that this sum, at the time of demand and presently, was and now is 'absolutely and unconditionally owing by Defendants to Plaintiff,' but, in the interest of justice and pursuant to the offer of the plaintiff City, said sum should be impounded 'until proof be made to this court that the existing drainage ditch has been extended from Western Avenue easterly to the intersection of Page and Stanton Avenues * * *' (the one-half mile portion not completed).

It then gave a definite judgment, as follows:

'1. That Plaintiff do have and recover from the Defendants and each of them, the sum of $50,000.

'2. That said sum be paid to, and impounded by, the Clerk of the above-entitled Court, to be held by said Clerk, until proof be made to this Court that the open drainage ditch has been extended easterly from Western Avenue to the intersection of Page and Stanton Avenues, in the City of Buena Park California.'

Respondent, on appeal, first argued that the judgment is interlocutory in character and form and not appealable and moved this court for dismissal of the appeal. At first blush it might appear that the judgment was not final, but when analyzed as to its definiteness we conclude that as far as defendant-appellants are concerned it is definite and certain. Under the agreement, when demand was made, this sum was due and owing to the City and the court so found. The completion of the work was not made a condition precedent of defendants' duty to pay the $50,000 under the terms of the contract. Execution could properly be issued on the judgment. The court, however, declared it should not be paid over to plaintiff City until the work was completed. The City has not appealed from this portion of the judgment. In fact, this order was made at the City's suggestion. Defendants cannot be heard to complain as to this condition which was made for their benefit and protection in case the City breached its contract and the defendants obtained judgment against the City for any damage suffered. The judgment did not specify that the moneys held by the clerk would be returned to defendant at a subsequent time, after hearing by the court, but only provided it would be impounded in the interests of justice and turned over to plaintiff City if it completed its obligations under the contract. Orders requiring the payment of money by the party complaining, or the doing of an act by or against him are usually regarded as final as against such party and may be appealed from by him. Fish v. Fish, 216 Cal. 14, 16, 13 P.2d 375; Meehan v. Hopps, 45 Cal.2d 213, 217, 288 P.2d 267; Phillips v. Cleaver, 82 Cal.App.2d 751, 753, 187 P.2d 80.

Appellants contend that the respondent city failed to complete the drainage ditch within a reasonable time and that this...

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