Foth v. City of Long Beach

• Decision Date: 26 May 1954
• Citation: 125 Cal.App.2d 520,270 P.2d 868
• Parties: FOTH et al. v. CITY OF LONG BEACH et al. Civ. 20102.
• Court: California Court of Appeals Court of Appeals

Page 868

270 P.2d 868

125 Cal.App.2d 520

FOTH et al. v. CITY OF LONG BEACH et al.

Civ. 20102.

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

May 26, 1954.

Irving M. Smith, City Atty., and Atlee S. Arnold, Deputy City Attorney, Long Beach, for appellants.

John Sanford Todd, Ted Sullivan, Lakewood, and Angelo M. Iacoboni, Long Beach, for respondents.

VALLEE, JUSTICE.

Appeal by defendants from a judgment which decreed that plaintiffs are entitled to a peremptory writ of mandate commanding defendants to terminate the proceedings for the annexation to the city of Long Beach of territory described as 'Increment 110' and a special election set therefor on August 20, 1953. The judgment also decreed that the attempted proceedings for the annexation of the territory and every purported resolution and ordinance pertaining thereto are void and of no effect. Defendants demurred to the petition and filed a return to the order to show cause and answer to the petition. The demurrer was overruled and a trial had on the issues.

Plaintiffs are owners of real property in 'Increment 110.' They commenced and are prosecuting this proceeding on their own behalf and as representatives of the other owners of property in the territory who made protests in writing against the annexation. The territory is unincorporated, is inhabited, is contiguous to Long Beach, contains about 503 acres, and has 2,333 separate parcels therein.

On April 18, 1953, pursuant to the 'Annexation Act of 1913,' Govt. Code, §§ 35100-35158, the proponents of the annexation published a notice of intention to circulate a petition therefor. On June 23, 1953, after the receipt and checking of the petition which had been circulated, the city council of Long Beach adopted a resolution in which it gave notice of its intention to call an election to be held August 20, 1953, in 'Increment 110' on the question of annexation, and fixed July 14, 1953, at 11 a. m., in the council chamber as the time and place where any person owning real property within the territory might appear and show cause why the territory should not be annexed. The resolution was duly published.

On July 14, 1953, and prior to 11 a. m., there was filed with the council a document protesting the annexation and the holding of the special election, signed by persons claiming to be the owners of 1,228 separate parcels of property in the territory proposed to be annexed. A majority of the separate parcels within the territory is 1,167. The council, without holding a hearing, adjourned the matter until July 21, 1953, at 11 a. m., and referred the protests to the city engineer and the city manager for checking and verification.

At the adjourned hearing, on July 21, 1953, at 11 a. m., the city engineer made a report based on a check made of the records of Title Insurance and Trust Company as to the ownership of the parcels included in the protests. He reported that of the persons claiming to be the owners of the 1,228 parcels protesting, the records of the title company disclosed that 99 of such persons had no record interest in the parcels they respectively claimed to represent, and that written protests had not been filed by the owners of a majority of the separate parcels. He also reported that of the claimed owners of the 1,228 parcels protesting, 367 had signed the protests between April 18 and June 23, 1953, the latter date being the date the council adopted the resolution giving notice of its intention to call the election, and that the protests were insufficient.

After the report had been made counsel for the protestants told the council 'that a majority protest had been filed; that as respects the 99 disallowed protests, all of the signers thereof had an ownership interest in the separate parcels of real property represented by their signatures on the written protests; that some of said persons owned said realty by way of unrecorded deeds; some by recorded and unrecorded contracts of sale; some by survival of a deceased joint-tenant; that a person may be the owner of real property even though his interest is not of record.' He then asked the council for time in which to examine the protests and the records compiled by the city engineer in order to ascertain the identity of the 99 disallowed protests. This was about 11:13 a. m. The council granted the request and first adjourned the hearing for 20 minutes and then until 1:45 p. m., the same day. Between 11:13 and 1:45 four or five of the protestants and their attorneys went through the 1,228 protests and compiled a list of and other information concerning the 99 disallowed protests. At no time prior to the recess at 11:13 did the protestants or any of them or their counsel know the identity of the signers of the disallowed protests of the identity of the parcels of property they signed a protest for, nor did any of them have any prior knowledge that said protests were going to be disallowed.

At 1:45 p. m., the same day, the hearing was resumed and counsel for the protestants addressed the council stating that he, his associate, and several of the protestants had compiled a list of the 99 disallowed protests; that a person could sign a valid written protest against annexation even though the person's ownership interest in land did not appear of record; that all of the persons signing the 99 disallowed protests had an ownership interest in the property they purported to represent; that if the council would continue the hearing if only for 24 hours, he would introduce evidence that all of said persons had an ownership interest in the property they purported to represent on the written protests. He was advised by the council that the second and final reading of the ordinance calling the annexation election and setting up the machinery therefor would have to take place on the following day or the election could not be held on the date previously set; that, therefore, said ordinance would have to be given its first reading that day; that if he had any evidence to present showing that the signers of the 99 disallowed protests were the owners of the real property he should present it then. At that time the city attorney advised the council that any signatures affixed prior to June 23, 1953, were invalid; that the owner of an unrecorded interest could not protest; and that if the hearing were continued the election could not be held on the date set. The council then denied the protestants a continuance, and immediately thereafter adopted a motion that the hearing be concluded and that it be found that written protests were not signed by the owners of a majority of the separate parcels of property in the territory proposed to be annexed.

The first reading of an ordinance calling the annexation election and setting up the machinery for holding it was had immediately. The next day, July 22, 1953, at 12:01 a. m. (one minute after midnight), the council met and the second and final reading of the ordinance was had. They met at that time because a number of the councilmen 'were going on a fishing trip. * * * They had previously planned to leave at 11:30 a. m. on July 21st.'

The court in part found: 1. The action of the council in refusing to recognize the majority protests was capricious, arbitrary, in excess of its powers and jurisdiction, and in violation and derogation of the rights of all of the protestants. 2. Neither the council, the city, nor any official of the city has any authority to conduct an election on August 20, 1953, or at any other time, for the purpose of effectuating an annexation of 'Increment 110' pursuant to the proceedings described.

The court concluded: 1. The council acted in excess of its jurisdiction in overruling the protests and proceeding with the election. 2. Written protests against annexation filed with the council prior to the hour set for hearing protests are presumed to be valid. 3. The 367 protests dated between April 18 and June 23, 1953, both inclusive, were sufficient, valid in form, and met the requirement of law. The council did not have any evidence before it to justify it in refusing to allow the 367 protests, and acted arbitrarily, capriciously, and in excess of its jurisdiction in disallowing said protests. 4. An owner of an equity in real property may make a valid written protest against the annexation of his real property to a municipality pursuant to section 35120 of the Government Code, whether or not his ownership interest appears of record. 5. If a city council finds that some of the signers of written protests against annexation are not the owners of the separate parcels of real property they purport to represent on said protests, said protestants, on request, must be given a reasonable opportunity to present to said city council further evidence of their ownership interest in said real property. 6. If the council were legally permitted to conclude the protest hearing on the same date they announced for the first time the number of disallowed protests and the reasons therefor, this would, in effect, require all of the protestants (1,228 in this case) to appear before the council with evidence of their ownership of the real property because none of them would have any advance knowledge as to whose protests would be disallowed or the reasons therefor; to require all of said protestants to appear before the council would be unreasonable. 7. The council acted arbitrarily, capriciously, and in excess of its jurisdiction when it continued the protest hearing from July 14, 1953, to July 21, 1953, the latter date being the last day on which the first reading of an ordinance calling the election could have been had if the election was to have been held on the date previously set, where the result was that on said last mentioned day the council for the first time announced the number of disallowed protests and the reasons therefor and the signers of said protests were given no...