Ellis v. City Council of City of Burlingame

• Decision Date: 21 November 1963
• Citation: 222 Cal.App.2d 490,35 Cal.Rptr. 317
• Parties: Kay ELLIS, Plaintiff and Appellant, v. CITY COUNCILE OF the CITY OF BURLINGAME et al., Defendants and Respondents. Civ. 20379.
• Court: California Court of Appeals

Page 317

35 Cal.Rptr. 317

222 Cal.App.2d 490

Kay ELLIS, Plaintiff and Appellant, v. CITY COUNCILE OF the CITY OF BURLINGAME et al., Defendants and Respondents.

Civ. 20379.

District Court of Appeal, First District, Division 2, California.

Nov. 21, 1963.

Edith B. Taylor, Redwood City, for appellant.

Burress Karmel, Burlingame, for respondents.

SHOEMAKER, Presiding Justice.

This is an appeal by plaintiff Kay Ellis from a judgment denying her damages in an action in which she sought and secured the issuance of a peremptory writ of mandate.

Plaintiff brought this action to obtain the writ compelling the issuance of a building permit to construct a swimming pool, and, further, to obtain damages incurred as a result of defendants' refusal to issue the permit at an earlier date. Defendants were the City Council of the City of Burlingame, the individual members of said body, the city attorney, the city manager, the building inspector, and the Department of Public Works of the City of Burlingame. ¹ The matter came on for hearing on December 14, 1959. The trial court deferred consideration of the damages issue and determined first whether the peremptory writ should issue. Defendants, at the commencement of the trial, 'orally demurred' generally to plaintiff's cause of action for damages. The trial court sustained the demurrer with leave to amend and then proceeded to hear evidence relative to the issuance of the writ. On March 18, 1960, the court issued a peremptory writ of mandate compelling the issuance of the building permit prayed for. On March 28, 1960, defendants filed a return to the writ, stating that the permit had duly been issued.

Meanwhile, on January 19, 1960, plaintiff filed her first amended petition relative to the damages aspect of the case, and on February 17, 1960, filed a second amended petition. Plaintiff's second amended petition set forth four causes of action for damages: the first based upon defendants' negligent failure to perform a ministerial act; the second upon defendants' negligent failure to perform a discretionary act; the third upon defendants' intentional, wilful, arbitrary and malicious refusal to perform a ministerial act; and the fourth upon defendants' intentional, wilful, arbitrary, and malicious refusal to perform a discretionary act. Defendants demurred generally to all four causes of action. The demurrer was sustained without leave to amend as to the first, second and fourth causes of action. The demurrer to the third cause of action was overruled as to the members of the city council, the city manager, and the city building inspector, but sustained without leave to amend as to the other defendants.

On May 17, 1960, the remaining defendants filed their answer to plaintiff's third cause of action, denying the material allegations thereof and further asserting that the refusal of a building permit to construct a swimming pool was justified on the ground that plaintiff had refused to discontinue an illegal use of an accessory structure previously erected on her property. The answer also contained a plea in abatement on behalf of the city manager and the members of the city council on the ground that none of these individuals had jurisdiction, power or authority to issue a building permit.

On November 17, 1960, the cause came on for trial before a different superior court judge than the one who had presided at the hearing relative to the issuance of the writ and who had subsequently ruled upon the demurrer to plaintiff's second amended petition for damages. This change appears to have been the result of plaintiff's having filed a pretrial statement to the effect that she would move to disqualify the original trial judge if he were assigned to preside at the damages portion of the trial.

The evidence produced at this final portion of the action was substantially without conflict. On July 20, 1956, plaintiff applied for and received from defendant James Watson, a building inspector for the City of Burlingame, a building permit to construct a swimming pool on premises owned by plaintiff in said city. On the same date, plaintiff also applied for and was issued a building permit to construct a bathhouse on the same property. Subsequently Watson granted permission to construct the bathhouse first, and renewed the original ninety-day permit to construct the swimming pool until April 1957.

When plaintiff thereafter applied for another renewal or for the issuance of a new permit, her application was denied. Watson testified that plaintiff had complied with all the requirements for the issuance of a new permit and that he was preparing to issue it when he was instructed by his superior, the Director of Public Works, that he was not to issue the permit until plaintiff had corrected certain violations of the uniform building code in the bathhouse, and had stopped using the bathhouse as sleeping or living quarters in violation of the zoning ordinance applicable to an R-1 district.

Following the denial of her application for a new permit to construct a swimming pool, plaintiff, in 1957, requested a hearing before the Burlingame city council. The council refused to grant a hearing. In December 1958, plaintiff again appeared before the council and was informed that her request for issuance of a permit would not be entertained at that time. On August 3, 1959, plaintiff appeared before the council for the third time. On this occasion, the council, acting upon the advice of the city attorney and the city manager, voted not to issue a permit until plaintiff had corrected the existing violations.

The Burlingame city attorney testified that the city building inspector was the only official or employee of the city who was authorized to issue a building permit and that there was no right of appeal to the city council upon the denial of a permit. He also stated, however, that the city council could exercise a certain degree of control over the issuance of permits and that if the building inspector should wrongfully refuse to issue a permit, the council could direct him to do so under threat of preferring charges against him before the Civil Service Commission.

The plaintiff also testified at length as to the damages sustained by her as a result of defendants' refusal to issue her a new permit in 1957.

At the conclusion of the plaintiff's case, defendants moved for a nonsuit on behalf of all defendants. This motion was granted as to the members of the city council and the city manager and denied as to the city building inspector.

The trial court found in accordance with the above and then added that there was no evidence upon which the court could find that the issuance of a building permit was a ministerial act and that the court accordingly found that the building inspector was not acting in a ministerial capacity in refusing to issue a renewal permit; that the building inspector did not act intentionally, arbitrarily, wilfully or maliciously in refusing to issue the renewal permit; that plaintiff had not been damaged in any amount by the denial of the permit applied for. The trial court entered judgment of dismissal in favor of the city manager and the members of the city council. Judgment on the merits was entered in favor of defendant building inspector. An award of costs was also made in favor of the city manager, the city building inspector, and the members of the city council.

Appellant's first contention on appeal is that the trial court erred in ruling that the issue of damages could not be heard at the trial for the issuance of the writ of mandate. We have examined the record and find no such ruling. The trial judge who presided at the hearing relative to the issuance of the writ did indicate that it was his intention to defer consideration of the damages issue until he had first determined whether or not the writ should issue. This procedure was proper and, in any event, was agreed to by appellant's counsel. Although the proceeding did ultimately develop into two separate trials before different superior court judges, this unusual situation occurred as the direct result of appellant's statement that she intended to move to disqualify the original trial judge. She certainly may not rely upon an alleged error which was invited solely by her own conduct. (Abbott v. Cavalli (1931) 114 Cal.App. 379, 383, 300 P. 67.)

Appellant's second contention is that the judgment denying her damages is incomplete because it does not contain a finding that she was entitled to a writ of mandate for the issuance of a building permit and that said writ was issued. Appellant does not show us how she was prejudiced by the lack of any such finding. The record reveals that the writ issued and that respondents duly complied with its direction. Under the circumstances, it is absurd to contend that any prejudice resulted. Moreover, the damages portion of the case was tried before a judge who had not heard the evidence presented at the hearing for issuance of the writ and who accordingly confined his findings to the issues properly before him. Any findings relative to the issuance of the writ ought properly to have been entered by the judge who heard that portion of the case. An examination of the record reveals that that judge did direct appellant's counsel to prepare findings of fact and conclusions of law pertaining thereto. When appellant's counsel neglected to do so, the writ issued without any such findings.

There is no merit in appellant's next contention that the trial court erred in sustaining respondents' 'oral demurrer' to appellant's original petition for damages. An objection that the complaint does not state facts sufficient to constitute a cause of action may be taken orally. (Code Civ.Proc. § 434; McClure, on Behalf of Caruthers v. Donovan (1949) 33 Cal.2d 717, 724, 205 P.2d 17.) Since respondents' 'oral demurrer' was clearly an objection of this nature, the trial court did not...