Gogerty v. Coachella Val. Jr. College Dist.

• Decision Date: 22 May 1962
• Court: California Supreme Court
• Parties: , 371 P.2d 582 H. L. GOGERTY, Plaintiff and Appellant, v. COACHELLA VALLEY JUNIOR COLLEGE DISTRICT, Defendant and Respondent. L. A. 26304.

Page 806

21 Cal.Rptr. 806

57 Cal.2d 727, 371 P.2d 582

H. L. GOGERTY, Plaintiff and Appellant, v. COACHELLA VALLEY JUNIOR COLLEGE DISTRICT, Defendant and Respondent.

L. A. 26304.

Supreme Court of California, In Bank.

May 22, 1962.

Cantillon & Cantillon R. Michael Cantillon and James P. Cantillon, Beverly Hills, for plaintiff and appellant.

Ray T. Sullivan, Jr., County Counsel, and Tilden L. Brooks, Deputy County Counsel, for defendant and respondent.

McCOMB, Justice.

From a judgment in favor of defendant, predicated upon the sustaining of its demurrer, without leave to amend, to plaintiff's fourth amended complaint in an action to declare void and annul the selection and acquisition of a school site, plaintiff appeals.

Defendant has filed a notice of motion to dismiss the appeal on the grounds (1) that the appeal is devoid of merit and (2) that the question on appeal has become moot, since defendant has purchased the property and has spent considerable money toward the construction of buildings on it.

On a motion to dismiss an appeal where it is necessary to review the record, as it is in the present case, the motion will be denied, and any contention that the question has become moot will be considered on its merits. (Reed v. Norman, 48 Cal.2d 338, 342(2), 309 P.2d 809; Johnson v. Sun Realty Co., 215 Cal. 382, 383(1), 10 P.2d 460; China Land etc. Co. v. Hamaker, 171 Cal. 689, 690, 154 P. 850.)

Facts: Plaintiff's fourth amended complaint alleged, in substance, as follows: That plaintiff is a taxpayer and resident of defendant Coachella Valley Junior College District, and brings this action in behalf of all other taxpayers of the district; that on August 6, 1959, defendant selected a certain site for the erection of a junior college, consisting of 160 acres; that such site is 'located in close proximity to' a certificated airport (Palm Desert Airpark) and is 'directly within' the governmentally approved landing and takeoff patterns of that airport, with resultant loud noise and potential danger, rendering the site useless and unsafe for an educational institution; that defendant proposes to purchase the site for $608,000 and expend $3,5000,000 to erect a junior college thereon, raising the funds by issuance of school bonds; that pursuant to section 15005 of the Education Code defendant received a report on the proposed site from the Department of Education; that the report disapproved the site as 'hazardous and useless from an educational standpoint,' but that defendant failed to consider and evaluate such report; that defendant 'always intended to acquire the site, regardless of what said reports advised' and obtained the report 'only in an effort to ostensibly comply with legal mandates'; that each member of defendant's governing board received notice from the California Aeronautics Commission, the Riverside County Airport Commission, and the Federal Aviation Agency, stating that the site was 'useless' and 'unsafe' for erection of a school; and that other more suitable sites are available at a lesser price, one of which has been offered to defendant as a gift.

The complaint further alleges that by reason of this 'predetermined plan and preconceived intent, (defendant) perpetrated a fraud upon the plaintiff and the public concerned in that it failed to give bona fide consideration to the said various reports before choosing such site, as required by law.' The complaint prays that the selection and acquisition of the site be declared void, and that defendant be permanently enjoined from acquiring or developing the site with public funds.

Defendant demurred on the grounds (1) that the amended complaint does not state facts sufficient to constitute a cause of action and (2) that plaintiff has no legal capacity to sue.

Questions: First. Has plaintiff the right, as an individual citizen and taxpayer, to maintain the present action?

Yes. These rules are here applicable:

(1) A taxpayer may sue a governmental body in a representative capacity in cases involving fraud, collusion, ultra vires, or failure on the part of the governmental body to perform a duty specifically enjoined. (Silver v. City of Los Angeles, 57 A.C. 13, 15(1), 17 Cal.Rptr. 379, 366 P.2d 651; Nickerson v. San Bernardino, 179 Cal. 518, 522 et seq., 177 P. 465; Dunn v. Long Beach L. & W. Co., 114 Cal. 605, 609, 46 P. 607; Schaeffer v. Berinstein, 140 Cal.App.2d 278, 289(12), 295 P.2d 113; Pratt v. Security Trust & Savings Bk., 15 Cal.App.2d 630, 636(1), 59 P.2d 862; 18 McQuillin, Municipal Corporations (3d ed. 1950) § 52.07, p. 23; cf. 124 A.L.R. (1940) pp. 1238-1240.)

(2) On appeal from a judgment sustaining a demurrer to a complaint, the allegations of the complaint must be regarded as true, and it must be assumed that the plaintiff can prove all the facts as alleged. (Schaeffer v. Berinstein, supra 140 Cal.App.2d 278, 288(2), (3), 295 P.2d 113.)

In the present complaint plaintiff has alleged that defendant acted fraudulently and always intended to acquire the site regardless of what the report obtained pursuant to the provision of section 15005 of the Education Code disclosed; that such report was obtained only to ostensibly comply with the requirements of section 1505 of the Education Code; and that the predetermined plan to acquire the site regardless of the Department of Education's report and the refusal to consider or evaluate the report constitute a fraud on plaintiff.

Under the above-stated rules and the foregoing allegations of fact, plaintiff was entitled to maintain the present action.

Second. Did the amended complaint state a cause of action?

Yes. To plead fraud, nothing more is required than that the allegations be pleaded in specific language descriptive of the acts relied on to constitute fraud. (Maxwell v. City of Santa Rosa, 53 Cal.2d 274, 280(8), 1 Cal.Reptr. 334, 347 P.2d 678; cf. Lawrence v. City of Santa Rosa, 53 Cal.2d 282, 283, 1 Cal.Rptr. 339, 347 P.2d 683; 23 Cal.Jur.2d (1955) Fraud and Deceit, §§ 64-65, pp. 156 et seq.)

Section 15005 of the Education Code provides, in part,...