Forest Lawn Co. v. City Council of City of West Covina

• Decision Date: 18 August 1966
• Citation: 244 Cal.App.2d 343,53 Cal.Rptr. 452
• Court: California Court of Appeals
• Parties: FOREST LAWN COMPANY, a corporation, Plaintiff and Respondent, v. CITY COUNCIL OF the CITY OF WEST COVINA, and Robert Flotten as City Clerk of the City of West Covina, Defendants and Appellants. Civ. 28783.

Page 452

53 Cal.Rptr. 452

244 Cal.App.2d 343

FOREST LAWN COMPANY, a corporation, Plaintiff and Respondent, v. CITY COUNCIL OF the CITY OF WEST COVINA, and Robert Flotten as City Clerk of the City of West Covina, Defendants and Appellants.

Civ. 28783.

District Court of Appeal, Second District Division 3, California.

Aug. 18, 1966.

Harry C. Williams, City Atty., West Covina, and Burke, Williams & Sorensen, Los Angeles, for appellants.

O'Melveny & Myers, Bennett W. Priest and William D. Moore, Los Angeles, for respondent.

SHINN, Presiding Justice.

This case is before the appellate courts for the second time. The case involves the validity of the proceedings commenced by the city council to annex to the City of West Covina 114 acres of land contiguous thereto.

The appeal involves the interpretation of the opinion of the Supreme Court (60 Cal.2d 516, 35 Cal.Rptr. 65, 386 P.2d 665) holding those proceedings invalid in certain particulars and the correctness of the action taken by the superior court in response to the remittitur.

The facts so far as pertinent to this appeal, as stated in the opinion of the Supreme Court are: 'On December 29, 1960, the City Council * * *, by Resolution 1997, began proceedings * * * to annex 114 acres of uninhabited land contiguous to the city's boundaries. * * * Pursuant to Government Code section 35313 the city council held a hearing to determine protests to the proposed annexation. On February 14, 1961 the council adopted a second resolution (No. 2034) substantially the same as Resolution 1997, referring to the same land. On April 10, 1961 it held a protest hearing pursuant to Resolution 2034.

'The 114 acres of uninhabited territory to be annexed consisted of five separate parcels, four of which were residential lots owned by persons other than plaintiff; these four lots comprised 14 of the 114 acres. The remaining 100 acres composed a part of an undivided 1050-acre parcel owned by plaintiff. According to the last equalized assessment roll, the total assessed value of the four residential parcels was $48,360. The assessed value of plaintiff's entire 1050 acres totalled $138,010, including $3,010 * * * for improvements located on the 100-acre portion to be annexed.' (The 100 acres were not separately assessed.)

'Prior to the hearings plaintiff filed a written protest * * * the other owners did not protest. At the protest hearings the city council determined that owners of one-half of the value of the territory to be annexed had not protested * * *. In so doing the council postulated that it had the power, * * * to apportion the assessed value of the 1050-acre parcel between the portion of the parcel included in the proposed annexation and the portion excluded.

'Plaintiff sought mandamus in the superior court. The court held that the city council exceeded its statutory power in apportioning the assessed valuation of the 1050-acre parcel. The court thereupon issued a writ of mandate ordering the city to determine that owners of one-half of the value of the territory to be annexed had protested the annexation and that the proceedings be terminated. Defendants appeal from the judgment.'

The Supreme Court reversed, holding, inter alia, that the statutes under which the proceedings were had (Gov.Code §§ 35310--14) required the apportionment of the assessed value of the 1050 acres owned by plaintiff and that the apportionment should be made by the county assessor, the council not having been given the power to do so. The remittitur reversed the judgment and directed the superior court to issue a writ of mandate conforming to the Supreme Court's opinion.

The superior court after hearing and argument ordered the council to withdraw from consideration the ordinances of annexation theretofore introduced; to hold a new hearing of protests, upon notice duly given to the owners of property proposed to be annexed; at the hearing to receive protests and to determine the weight of any protests only in accordance with the equalized assessment roll for the fiscal year 1963--64 or in the case of any parcel not wholly included in the annexation territory upon the value placed by the county assessor on the part lying within the territory to be annexed. From this judgment the appeal is taken.

The appellants contend that the superior court was limited, under the opinion of the Supreme Court, to compelling the council to value plaintiff's property in accordance with the method prescribed by the Supreme Court and that it exceeded its powers in ordering the council to hold a new hearing upon notice and at that hearing to receive and pass upon all protests received. They further claim that the court erred in not making the equalized assessment roll for year 1960--61 the basis for determining the values of the lands involved.

It is true as asserted by appellants that when a judgment is reversed and remanded with directions the lower court may only taken such action as is essential to giving effect to the judgment of the appellate court. (American Distl. Co. v. City Council of City of Sausalito, 34 Cal.2d 660, 213 P.2d 704) It is further true that the function of the writ of mandate is to compel the performance of a duty which the law specifically enjoins and which existed at the time of the alleged failure to act. It is our opinion that each of the acts ordered by the judgment was one essential to complying with the judgment of the Supreme Court.

A new hearing is required for it will be the duty of the council to weigh all protests of those shown as owners on the last equalized assessment roll and the county assessor's apportionment of the assessed value of plaintiff's land.

When the hearing was held April 10, 1961, section 35312 read: 'At any time before the hour set for hearing objections, any owner of property within the territory may file written protest against the annexation. The protest shall state the name of the owner of the property affected and the description and area of the property in general terms. As used in this article, 'owner' means the owner as shown on the last equalized assessment roll, or the person or persons entitled to be shown as owner on the last equalized assessment roll, or where the property affected is subject to a recorded...