Knoff v. City etc. of San Francisco

Citation81 Cal.Rptr. 683,1 Cal.App.3d 184
CourtCalifornia Court of Appeals
Decision Date27 October 1969
PartiesIda KNOFF et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Appellants. (two cases). Civ. 24553, 25160.

Thomas M. O'Connor, City Atty., by George E. Baglin, Deputy City Atty., San Francisco, for appellants.

Lowenthal & Lowenthal, San Francisco, Thorpe & Cummings, Hayward, for respondents.

John P. Macmeeken, Chickering & Gregory, San Francisco, Robert D. Platt, V Judson Klein, Johnston, Platt, Klein & Horton, Oakland, for Bauer-Schweitzer Malting Co., Inc., amici curiae.

James K. Haynes, Orrick, Herrington, Rowley & Sutcliffe, San Francisco, for Cardoza Bookbinding Co., amici curiae.

Max Weingarten, Richard L. Greene, Bronson, Bronson & McKinnon, San Francisco, for Eureka Carlisle Co., amici curiae.

Philip S. Ehrlich, Jr., Irving Rovens, Ehrlich & Allison, San Francisco, for Midstate Corp., amici curiae.

Vincent Cullinan, Stephen H. Slabach, Cushing, Cullinan, Hancock & Rothert, San Francisco, for Schlage Lock Co., amici curiae.

Robert D. Platt, V. Judson Klein, Johnston, Platt, Klein & Horton, Oakland, for SCM Corp. (as successor of the Glidden Co.), and Safeway Stores, Inc., amici curiae.

RATTIGAN, Acting Presiding Justice.

In 1965, an extensive investigation by the grand jury for the City and County of San Francisco resulted in the indictment of Russell L. Wolden, the assessor thereof, on multiple counts charging his criminal misconduct in office. Four San Francisco taxpayers thereafter commenced this action in the form of a taxpayers' suit against the City and County, its board of supervisors (as such and as the board of equalization), and against Wolden as the assessor, seeking a writ of mandate to require official action addressed to the situation brought about by Wolden's activities in office as disclosed by the grand jury investigation. In 1 Civil 24553, defendants 1 appeal from a judgment directing issuance of a writ of mandate substantially as prayed (hereinafter the 'main judgment'), from a judgment awarding petitioners their attorneys' fees, and other orders. In 1 Civil 25160, defendants appeal from an order which was entered after the main judgment and which spelled out certain specific standards to be followed by defendants in complying with the peremptory writ of mandate issued pursuant thereto. 2

On both appeals, the parties have literally inundated this court with written arguments (their printed briefs, with appendices, run to an aggregate length of 1,500 pages) whose sheer volume will require extensive discussion on the appeals' merits. Despite this prospect, we first find it necessary--because the remedy successfully exercised by petitioners is novel both in concept and application--to describe the action and the main judgment in some detail.

The trial court entered the main judgment as a judgment on the pleadings. The latter (the petition for writ of mandate and an answer thereto filed by the City and County and by its respective boards) are too long and complicated 3 to permit summarizing them here and, as will appear, this is not necessary. We note at this point, however, that the petition set forth these pertinent allegations among others:

Each of the four petitioners was a 'citizen resident' of San Francisco and the owner of property therein which, during the three years preceding commencement of the action, had been annually assessed by the assessor thereof and upon which each had paid the property taxes 'so assessed.' The assessor during said period was Russell L. Wolden, upon whom various constitutional and statutory provisions imposed certain specified duties.

The petition further alleged the fact of the 1965 investigation of Wolden by the grand jury (referring to it by the grand jury's title of 'In the Matter of the Investigation of Russell L. Wolden'); that the grand jury had received therein 'sworn testimony of 25 witnesses, * * * which testimony is reflected' in a 750-page grand jury transcript; and that, acting upon such testimony, the grand jury had indicted Wolden on 'ten counts of bribery and one count of conspiracy.' 4

The petition incorporated the 1965 grand jury transcript by reference. This was followed by extensive allegations which were explicitly 'based upon' the grand jury testimony (in effect, they summarized it), and which recounted a course of conduct by Wolden, as the San Francisco assessor, wherein he accorded preferential assessment treatment to certain property taxpayers who bribed him to do so. 5

The petition for writ of mandate was filed on February 23, 1966. In response thereto and on the same day, the trial court issued an alternative writ of mandate directed to the various defendants and returnable on March 7. Prior to the return date, the City and County and the two boards (i.e., the board of supervisors as such and as the board of equalization) filed (1) a written objection to 'any offer, and to the receipt, in evidence' of the 1965 grand jury transcript, upon the ground that it contained 'inadmissible hearsay'; (2) a general demurrer to the petition for writ of mandate; (3) notice of a motion to strike those portions thereof which incorporated the 1965 grant jury transcript and which alleged Wolden's misconduct based upon the transcript's contents; and (4) their answer to the petition. Wolden did not join in these pleadings, nor did he personally plead in the action at any time. 6

At several hearings (commencing on the March 7 return date), the trial court, among other things, denied a motion for continuance of the cause until after Wolden's thenpending criminal prosecution had been concluded; overruled the general demurrer to the petition; and denied the motion to strike those portions thereof which incorporated the 1965 grand jury transcript and reiterated its contents. The court finally stated that, in its view, the material allegations of the petition had been admitted by the answering defendants; that the court would therefore enter judgment on the pleadings ordering issuance of a peremptory writ of mandate as prayed; and that it would retain jurisdiction of the cause. These proceedings were followed by entry of the main judgment, and issuance of the peremptory writ of mandate pursuant thereto, on March 28, 1966.

The Main Judgment

In the main judgment the trial court made detailed 'determinations' which included both findings of material fact 7 and recitals of matters of law. In them, the court accurately summarized the material allegations of the petition which had not been denied by the answering defendants; for this reason, and because we hereinafter recite the substance of the 'determinations,' we need not summarize the pleadings.

Under 'determinations' sounding in terms of fact, the judgment stated that the grand jury investigation of Wolden had occurred in 1965; that the transcript thereof, as incorporated in the petition by reference, contained 'reasonable information' which showed that the City and County had lost property tax revenues because of unassessed or underassessed properties; that such information constituted reasonable cause for an immediate 'investigation, inquiry and examination' to be made by the board of supervisors, with the cooperation of the assessor's office and with the assistance of experts to be employed by the board, of 'properties of San Francisco taxpayers' which may have been improperly underassessed or not assessed; and that such project would, in reasonable probability, 'lead to the discovery of substantial escaped assessments and properties which have escaped assessment.'

In other 'determinations,' the judgment stated that none of the defendants, despite proper demands made upon them, had acted in the situation at hand; that the reason for inaction by the City and County and the board of supervisors, as asserted by their counsel 8 (that they desired to await the conclusion of Wolden's criminal prosecution so as not to prejudge his guilt of the crimes charged therein), did not justify delay; that because of the commencement of the new assessment year on March 7, 1966 (the current lien date), and applicable statutes of limitation, the City and County had already suffered 'irreparable loss' from such inaction to date; and that the assessor's present engagement in the assessment of personal property, and the impending function of the board of supervisors as a board of equalization in July, 1966, required that an 'investigation, examination and inquiry' commence forthwith.

Following these 'determinations' (and those reciting matters of law relative to the duties of the public officers involved which we hereinafter discuss), the judgment ordered that a peremptory writ of mandate issue; that the trial court retained jurisdiction of the cause and jurisdiction to modify the peremptory writ upon noticed request by the petitioners; and that defendants report to the court, at specified intervals, concerning the steps being taken to comply with the peremptory writ. The judgment also awarded petitioners 'reasonable attorneys' fees' in the action, the amount thereof to be subsequently fixed as hereinafter discussed.

The peremptory writ of mandate, issued pursuant to the judgment, was addressed to each of the defendants and followed the judgment in close detail. All defendants were ordered to take all appropriate action 'commanded herein and called for' by by the information contained in the 1965 grand jury transcript. The board of supervisors was ordered to initiate, immediately, a 'full investigation, inquiry and examination into the matter of the loss by * * * (the City and County) * * * of property tax during this or any prior assessment year' as to which such recovery was permitted by law.

The writ further ordered the board of supervisors to conduct the project, in...

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