Elmore v. Imperial IrrIGAtion Dist.

• Decision Date: 16 August 1984
• Citation: 205 Cal.Rptr. 433,159 Cal.App.3d 185
• Court: California Court of Appeals Court of Appeals
• Parties: John ELMORE, Plaintiff and Appellant, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Respondent. D000875. Civ. 28973.

Page 433

205 Cal.Rptr. 433

159 Cal.App.3d 185

John ELMORE, Plaintiff and Appellant, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Respondent.

D000875.

Civ. 28973.

Court of Appeal, Fourth District, Division 1, California.

Aug. 16, 1984.

Hearing Denied Nov. 1, 1984.

Gray, Cary, Ames & Frye, William N. Kammer and David L. Osias, San Diego, for plaintiff and appellant.

Jennings, Engstrand & Henrikson, Wallace R. Peck, San Diego, Horton, Knox, Carter & Foote and R.L. Knox, Jr., El Centro, for defendant and respondent.

STANIFORTH, Associate Justice.

Plaintiff John Elmore appeals an order of the trial court sustaining without leave to amend a demurrer to his petition for writ of mandamus. Respondent Imperial Irrigation District (IID) contends (1) the order is nonappealable; (2) the jurisdiction of the State Water Resources Control Board (Board) had already been invoked by Elmore at the time he filed the petition for writ of mandamus and therefore the Board has exclusive jurisdiction over this matter; and (3) the petition for writ of mandamus fails to state a cause of action.

FACTS

On this appeal of a hearing on demurrer, we assume the facts alleged in Elmore's amended petition are true and Elmore can prove them. (Isakoolian v. Issacoulian, 246 Cal.App.2d 225, 227, 54 Cal.Rptr. 543.) These are the facts: Elmore is a farmer whose land is located in Imperial County adjacent to the Salton Sea. Elmore charges IID, a public irrigation district, has been wasteful and unreasonable in its water management practices. As a result IID has caused substantial volumes of fresh water to needlessly flow into the Salton Sea. The sea's surface level has risen over three feet since 1974.

Thousands of acres of land owned by Imperial County farmers previously suitable for farming, mineral and steam production have been flooded with salt water. The rising sea has flooded portions of Elmore's land and threatens the remainder of Elmore's land. Elmore has been forced to build earth dikes more than three miles long between his land and the sea to keep back the water, thereby removing valuable acreage from agricultural production. As a result of the flooding much of Elmore's land is lower than the surface elevation of the sea. The increase in surface level of the sea has effectively destroyed the gravity drainage capacity of Elmore's land, forcing Elmore to install pumps to remove irrigation waters from his land into the sea. Elmore has demanded IID stop its filling of the Salton Sea, but IID continues to cause fresh water to flow into the sea.

In June 1980, Elmore requested the California Department of Water Resources (DWR) investigate IID's waste and misuse of water. Elmore also requested a hearing from the Board. The DWR investigated for 18 months and issued its report in December 1981, concluding IID wastes and misuses substantial quantities of water. To avoid running of applicable statutes of limitation, Elmore brought a lawsuit in the Superior Court of Imperial County for damages and injunctive relief at the same time as his application to the DWR.

On March 15, 1982, Elmore filed this petition for writ of mandamus in the superior court, alleging IID violated its statutory duty by wasting and misusing water and by flooding Elmore's land and destroying existing drainage on Elmore's land. IID's demurrer to this petition was sustained without leave to amend. The court ruled the petition was "overly broad, thereby uncertain as to specific acts or restraint of acts required to be enforced by the Court." Elmore filed a first amended petition. A demurrer to the amended petition was sustained without leave to amend. This appeal followed.

DISCUSSION

I

At the threshold of these proceedings is the question of the applicability of the "single judgment" rule. Was the order of the court sustaining the demurrer without leave to amend an appealable order? IID It is true for an appeal to lie there must be a final judgment terminating the proceedings below and finally determining the rights of the parties. (Gibson v. Savings & Loan Commissioner, 6 Cal.App.3d 269, 271, 85 Cal.Rptr. 799.) Appealability is a jurisdictional issue which may be raised by the appellate court even if not mentioned by the parties. (Collins v. Corse, 8 Cal.2d 123, 124, 64 P.2d 137.) The fact the trial court labels its ruling "a judgment" is irrelevant in determining whether the decision is appealable. (Gosney v. State of California, 10 Cal.App.3d 921, 928-929, 89 Cal.Rptr. 390.)

argues an action between these parties languishes in the files of the Imperial County Superior Court awaiting trial for damages and injunctive relief and all of the issues raised by the petition are still before the trial court as part of the allegations raised in Elmore's complaint. IID therefore contends no final judgment has been rendered so no appeal may be taken. In support of this contention, IID cites Bank of America v. Superior Court, 20 Cal.2d 697, 701, 128 P.2d 357, holding there cannot be an appeal from a separate judgment as to one count in a complaint which contains several extant counts. Rather, the Supreme Court ruled, there can be but one judgment in an action no matter how many counts the complaint contains. ¹

However, a petition for writ of mandamus is a special proceeding. (Code Civ.Proc., § 1084 et seq.) By definition, a "judgment in a special proceeding is the final determination of the rights of the parties therein." (Code Civ.Proc., § 1064.) A trial court order denying a writ of mandamus is appealable. (See Covina-Azusa Fire Fighters Union v. City of Azusa, 81 Cal.App.3d 48, 56, 146 Cal.Rptr. 155.) Only where the trial court contemplates further orders or action on the mandamus petition is the order denying the petition not appealable. (Ibid.)

IID's reliance on Gosney v. State of California, supra, 10 Cal.App.3d 921, 89 Cal.Rptr. 390, is inapposite. In Gosney, the relief requested on all five causes of action was the same, although the first four causes of action were labeled "injunction" and the fifth cause of action "mandamus." (Id., at p. 926, 89 Cal.Rptr. 390.) The Gosney trial court issued the alternative writ of mandamus and the defendants answered. The court then discharged the alternative writ and denied the peremptory writ; the demurrer was sustained with leave to amend as to the first four causes of action. The appeal was taken from the trial court's findings of fact and conclusions. The appeal court dismissed the appeal, saying: "No appeal may be taken from findings and conclusions but only from the judgment that they support." (Id., at p. 928, 89 Cal.Rptr. 390.)

Here the trial court sustained the demurrer without leave to amend and without hearing any facts or considering any declarations on the matter. The trial court disposed of Elmore's first amended petition in toto and patently does not contemplate taking further action upon it.

In contrast to the Gosney rule is that set out in California Teachers Assn. v. Board of Education, 109 Cal.App.3d 738, 167 Cal.Rptr. 429, where the complaint contained four causes of action arising from one set of operative facts. The first cause of action was for injunction, the second and third for writs of mandamus and the fourth a prayer for declaratory relief. A motion for preliminary injunction and peremptory writ was heard and denied by the trial court. The appellate court found the order denying the writ of mandamus was appealable "[In Gibson,] ... the order denying an alternative writ of mandate was held not to be a final order because the trial court specifically indicated that it was not dismissing the petition for writ of mandate and was denying it without prejudice to applying for further relief." (109 Cal.App.3d, at p. 751, 167 Cal.Rptr. 429.)

                the order denying the writ of mandamus was properly before the appellate court even though the causes of action for a permanent injunction and declaratory relief were still before the trial court.  California Teachers examined the cases which variously upheld or denied the appealability of orders denying petition for writs of mandamus and found this critical distinction:  appealability is determined by whether the trial court contemplated taking further action.   If it did, the order denying the petition for writ of mandamus would not be final.  Conversely, if the trial court necessarily intended no further act on the petition, then the order denying the petition is "a final judgment" in the meaning of Code of Civil Procedure section 1064.  (Id., at p. 751, 167 Cal.Rptr. 429.)  California Teachers distinguishes Gibson v. Savings & Loan Commissioner, supra, 6 Cal.App.3d 269, 85 Cal.Rptr. 799, also relied upon by IID
                

The trial court here refused to issue the alternative writ or refer to the Board the factual issues raised in the first amended petition. Instead, the trial court sustained the IID's demurrer to Elmore's petition for writ of mandamus without leave to amend. Under the rule of California Teachers, the trial court's denial of the first amended petition was an appealable final judgment under Code of Civil Procedure section 1064.

II

IDD's second challenge to jurisdiction consists of the contention the Board had exclusive jurisdiction over the issues here. Water Code sections 2000 and 2001, and case law interpreting these sections, authorize a trial court, assuming jurisdiction over a water rights dispute, to refer to the Board factual issues particularly suited to the Board's expertise. (See National Audubon Society v. Superior Court, 33 Cal.3d 419, 449-451, 189 Cal.Rptr. 346, 658 P.2d 709; Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist., 26 Cal.3d 183, 200, 161 Cal.Rptr. 466, 605 P.2d 1; Allen v. California Water & Tel. Co., 29 Cal.2d 466, 176 P.2d 8.) The trial court did not take this route. Instead, it denied the writ for failure to exhaust administrative remedies. This was error. The doctrine of exhaustion of administrative remedies...