Faus v. Pacific Elec. Ry. Co.

• Decision Date: 13 July 1955
• Citation: 134 Cal.App.2d 352,285 P.2d 1017
• Court: California Court of Appeals Court of Appeals
• Parties: L. C. FAUS and Mary G. Faus, Plaintiffs and Respondents, v. PACIFIC ELECTRIC RAILWAY CO., a corporation, et al., Defendants and Respondents, John D. Bicknell Bagg et al., Defendants and Cross-Complainants, Respondents, County of Los Angeles, Intervener-Appellant. J. Benton VAN NUYS et al., Plaintiffs and Respondents, v. PACIFIC ELECTRIC RAILWAY CO., a corporation, et al., Defendants and Respondents, County of Los Angeles, Intervener-Appellant. Civ. 20762, 20763.

Page 1017

285 P.2d 1017

134 Cal.App.2d 352

L. C. FAUS and Mary G. Faus, Plaintiffs and Respondents, v. PACIFIC ELECTRIC RAILWAY CO., a corporation, et al., Defendants and Respondents, John D. Bicknell Bagg et al., Defendants and Cross-Complainants, Respondents, County of Los Angeles, Intervener-Appellant.

J. Benton VAN NUYS et al., Plaintiffs and Respondents, v. PACIFIC ELECTRIC RAILWAY CO., a corporation, et al., Defendants and Respondents, County of Los Angeles, Intervener-Appellant.

Civ. 20762, 20763.

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

July 13, 1955.

Harold W. Kennedy, County Counsel, and Milnor E. Gleaves, Deputy County Counsel, Los Angeles, for appellant.

Paul Overton, Holbrook, Tarr, Carter & O'Neill, W. Sumner Holbrook, Jr., Francis H. O'Neill, Los Angeles, for respondents.

Chapman, Frazer & Lindley, D. W. Chapman, Los Angeles, for respondents and cross-complainants.

FOX, Justice.

From judgments denying its motions for leave to file complaints in intervention in the above entitled actions, the County of Los Angeles appeals. The parties are agreed that the essential issues are identical with respect to both matters and that the cases be considered together on appeal.

The salient facts are these: Beginning in the year 1903 and continuing until September, 1951, the defendant Pacific Electric Railway Company (hereinafter called the Company), and its predecessors in interest, had used the property here in controversy, a long, narrow strip of land located in the middle of Huntington Drive, in the City of San Marino, as part of its right of way for the operation of interurban street cars and trains. Huntington Drive is an east-west public highway within Los Angeles County and carries a substantial amount of traffic as it traverses parts of Los Angeles, South Pasadena, Alhambra, San Marino, Arcadia, and unincorporated County territory. After the Company had abandoned certain rights of way in Los Angeles County on November 6, 1951, the Board of Supervisors of Los Angeles County passed a resolution asserting that the acquisition and preservation for public street purposes of such rights of way was of general county interest, section 1680, Streets & Highways Code. ¹ Thereafter, during the fiscal years 1952 to 1954, inclusive, the Board made budgetary allocations of $900,000 as financial aid for such purposes to several cities.

Plaintiffs in both of the matters before us filed their respective complaints on July 21, 1953, seeking to quiet title in themselves to the separate abandoned right of way strips on Huntington Drive in the City of San Marino. The defendant City of San Marino and the Company filed answers denying the plaintiffs' claims and the City of San Marino asserted present ownership and right to possession and use of the disputed strips. Both cases were first set down for trial on May 12, 1954, but were continued until July 26, 1954, because of a death in the family of one of the Company's counsel immediately prior to the time originally scheduled for trial. About the middle of July the Company moved for a further continuance to effect a substitution of counsel while the City of San Marino moved to substitute City Attorney Martin in the place of the private firm representing it. Both of the new counsel for the defendants Company and City requested additional time to prepare for the trial. A continuance of the cases was granted to October 27, 1954.

On September 13, 1954, the City of San Marino adopted a resolution requesting the County of Los Angeles to extend legal, engineering and other services necessary to the defense of the instant actions. On October 6, 1954, the Board of Supervisors adopted a resolution to the effect that the acquisition of the abandoned rights of way involved in these appeals for public street purposes was of general county interest, directed that legal and engineering services be furnished the City of San Marino, and authorized the County Counsel to intervene in both actions on behalf of the County. On the following day, the County Counsel and one of his deputies, Milnor E. Gleaves, were substituted as attorneys of record for the City of San Marino in place of City Attorney Martin. On October 8, 1954, Mr. Gleaves filed notice that he would move for a 30-day continuance on October 13, 1954, to prepare himself for these matters. On the same day, Mr. Gleaves petitioned for leave to intervene in both actions. On October 13, 1954, a continuance was granted to January 25, 1955.

On October 14, 1955, the County's motion to intervene in these actions came on for hearing. The County filed therewith a proposed 'Complaint in Intervention,' reciting the details of the actions taken by the Board of Supervisors as previously set forth, alleging the County's general interest in the matter and in the success of the City of San Marino in this litigation. No property interest in the disputed land is claimed by the County and the prayer asks for no relief in favor of the County against any of the parties to the action. ² After taking the matter under submission, the trial court made its orders on November 22, 1954, denying the County the right to intervene. Following the County's appeal, this court issued a writ of supersedeas on December 16, 1954, suspending proceedings below until further order.

The sole question presented is whether the trial court properly refused leave to the County to become a party to the proceedings below. The County contends it 'has an interest both in the matter in litigation and in the success of the City of San Marino sufficient to entitle it to intervene.' This contention is refuted, however, by a long line of decisions, to which we will subsequently refer, defining the nature of the 'interest' a stranger to the record of a pending cause must have before leave to intervene may be granted.

The right of a third person to intervene in a pending action is purely statutory. Chase v. Evoy, 58 Cal. 348, 355; Horn v. Volcano Water Co., 13 Cal. 62, 70. Intervention is not a matter of absolute right, but may be permitted by leave of court when the petitioner shows facts which satisfy the requirements of section 387 of the Code of Civil Procedure, the statute authorizing intervention by one not originally a party to an action. In re Yokohama Specie Bank, Ltd., 86 Cal.App.2d 545, 555, 195 P.2d 555. Section 387 provides in part that at any time before trial, any person who has an interest in the matter in litigation or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. The word 'interest' is of crucial significance and has a definite legal meaning in intervention proceedings. It is well settled that the interest referred to must be "in the matter in litigation and of such a direct or immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment." (Emphasis added.) Allen v. California Water & Tel. Co., 31 Cal.2d 104, 109, 187 P.2d 393, 395; Bechtel v. Axelrod, 20 Cal.2d 390, 392, 125 P.2d 836; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 661, 665, 91 P.2d 599; Elliott v. Superior Court, 168 Cal. 727, 734, 145 P. 101. Not only must the interest be direct rather than consequential, but 'it must be an interest which is proper to be determined in the action in which the intervention is sought.' Isaacs v. Jones, 121 Cal. 257, 261, 53 P. 793, 794, 1101; Bechtel v. Axelrod, supra; Jersey Maid Milk Products Co. v. Brock, supra; Schwartz v. Schwartz, 119 Cal.App.2d 102, 104, 259 P.2d 33.

An analysis of a few representative cases furnishes graphic illustration of the rule that the 'interest' of which the statute speaks must involve such an immediate and direct claim upon the very subject matter of the litigation that the intervener will either gain or lose by the direct operation of the judgment that may be rendered therein. In Allen v. California Water & Tel. Co., supra, the City of Coronado sought to intervene in an action involving rights to underground waters of a river basin. The City was obtaining water from the defendant water company pursuant to contract, and asserted its right to intervene on the ground that an adverse decision would affect its water supply. The Supreme Court affirmed the trial court's denial of leave to intervene, resting its decision on the grounds, among others, that the City's interest was indirect. The court stated, 31 Cal.2d at page 109, 187 P.2d at page 395: 'Here the city of Coronado has not such an 'interest' * * * as would give it a right to intervene. It has no direct interest or claim to any of the waters involved in the litigation. * * * Defendant is in no position to claim and never has asserted the attachment of a public use. The city of Coronado, one of its customers, cannot claim and in fact has no greater right in the waters than has defendant itself. * * * The city stands in the same position as that of other water users whose needs are served by defendant either partially or wholly from Tia Juana Basin sources. Its interest is indirect and consequential. Such an interest may not properly be asserted in the supplemental proceedings. It may not therefore serve as a proper subject for intervention.'

In Bechtel v. Axelrod, 20 Cal.2d 390, 125 P.2d 836, Axelrod was sued as guarantor on a note whose maker had defaulted. Mrs. Axelrod petitioned to intervene, contending that plaintiff, in the event of a favorable judgment, intended to satisfy it out of the community property. In sustaining the disallowance of the petition, the court stated, 20 Cal.2d at pages 392-393, 125 P.2d at page 837: "The interest mentioned in the Code which entitles a person to intervene in a suit between other persons must be in the matter in litigation and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the...