Lavine v. Jessup

• Citation: 161 Cal.App.2d 59,326 P.2d 238
• Court: California Court of Appeals Court of Appeals
• Decision Date: 04 June 1958
• Parties: Morris LAVINE, Plaintiff and Appellant, v. Roger JESSUP, Herbert Legg, Leonard Roach and William A. Smith, Individually and as Members and Former Members of the Los Angeles County Board of Supervisors; County of Los Angeles, a Public Corporation and Body Politic; Walt Briggs and Jack Hazard, Individually, and as Partners and Sole Owners of the Stock of the Civic Center Auto Park, Inc.; Civic Center Auto Park, Inc.; John Anson Ford, Kenneth Hahn and Burton Chase, as Members of the Los Angeles County Board of Supervisors and Individually; John Doe Corporations I to VI Inclusive; John Doe I to VIII Individually, Inclusive, and Jane Doe I to IV Individually, Inclusive, Defendants. Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased, County of Los Angeles, Walter M. Briggs, sued as Walt Briggs, and Civic Center Auto Parks, a corporation, sued as Civic Center Auto Park, Inc., Respondents. Civ. 21759.

Page 238

326 P.2d 238

161 Cal.App.2d 59

Morris LAVINE, Plaintiff and Appellant, v. Roger JESSUP, Herbert Legg, Leonard Roach and William A. Smith, Individually and as Members and Former Members of the Los Angeles County Board of Supervisors; County of Los Angeles, a Public Corporation and Body Politic; Walt Briggs and Jack Hazard, Individually, and as Partners and Sole Owners of the Stock of the Civic Center Auto Park, Inc.; Civic Center Auto Park, Inc.; John Anson Ford, Kenneth Hahn and Burton Chase, as Members of the Los Angeles County Board of Supervisors and Individually; John Doe Corporations I to VI Inclusive; John Doe I to VIII Individually, Inclusive, and Jane Doe I to IV Individually, Inclusive, Defendants Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased, County of Los Angeles, Walter M. Briggs, sued as Walt Briggs, and Civic Center Auto Parks, a corporation, sued as Civic Center Auto Park, Inc., Respondents.

Civ. 21759.

District Court of Appeal, Second District, Division 1, California.

June 4, 1958.

Hearing Denied July 30, 1958.

Morris Lavine, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, Iver E. Skjeie, Deputy County Counsel, Los Angeles, for respondents Roger Jessup, Herbert Lagg, Leonard Roach, William A. Smith, deceased, County of Los Angeles.

Wm. J. Cusack, Los Angeles, for respondents Walter M. Briggs and Civic Center Auto Parks, a corporation.

LILLIE, Justice.

The plaintiff here appeals from a judgment of dismissal entered after the sustaining of demurrers, and from an order striking the fourth and last amended complaint. The original complaint bore the title, 'Taxpayer's Suit for Diversion and Waste of Public Funds; Conspiracy to Damage; Conspiracy to Defraud; Negligence in Public Office; Conversion.' The third and fourth amended complaints charged fraud and misrepresentation, gross negligence, conspiracy, intentional and wilful breach of statutory duty and delay in building a county courthouse; and sought to have the court declare a constructive trust of public monies collected from public properties by defendants Briggs and Civil Center Auto Parks.

The present controversy emanates from an action of the Board of Supervisors of Los Angeles County changing the location of the county courthouse from its first designated site on Temple Street of First and Hill Streets. It is claimed that this relocation was effected after the supervisors had wastefully expended $2,225,086.61, including planning, architects' fees and other expenses, for the Temple Street site. Plaintiff also complains of the board's action in leasing the original site after it had been acquired by the county to certain other defendants for use as a parking lot operated for profit.

It is appellant's contention that not one but several good causes of action have been stated in the fourth amended complaint and that it was error to dismiss the action. The several counts and amendments are based upon various legal concepts, but all seek to predicate liability upon the above facts. There is no particular controversy with reference to the various record steps which were taken in choosing and relocating the courthouse site. Appellant does, however, seek to make use of certain alleged inferences and conclusions which he claims to be indicative of misfeasance or malfeasance on the defendants' part.

Appellant claims his capacity to sue is derived from the fact that he is a taxpayer bringing the action on behalf of himself and all other taxpayers. He is also an attorney at law and submits that the defendants owed a duty to furnish proper courthouse facilities for judges, lawyers, litigants and the public.

A reading of the allegations contained in the third amended complaint discloses the following specified causes of action: (1) intentional breach of statutory duty and resulting damage to the taxpayers; (2) wilful neglect of public mandatory duty to build a courthouse; (3) intentional gross negligence in performance of public mandatory duty and failure to accord taxpayers due process by notice and hearing in the selection of a courthouse site; (4) fraud and misrepresentation by public officers aided and abetted by the parking lot defendants in selection and abandonment of the Temple Street site and resulting damage to taxpayers; (5) restitution of public monies wasted by defendants' actions; (6) to declare and impress a trust on the defendants' private property; (7) to declare the rights and duties of defendants in connection with the courthouse site; (8) to prevent impairment of obligation of contract in violation of article I, section 10 of the U. S. Constitution and to recover damages for the waste of taxpayers' money and property without due process of law; (9) injunction; (10) conversion and misappropriation of public funds in connection with abandonment of the Temple Street site; (11) prayer for a bill of peace and application of estoppel by judgment; and (12) for damages in the alternative and punitive damages.

Plaintiff's fourth amended complaint sought to amend the first cause of action by asking for damages for intentional and wilful breach of statutory duty and for delay in building the courthouse, and asked the court to declare a constructive trust of all monies collected from public properties, namely the income received from the Temple Street parking lot.

As a basis for plaintiff's alleged right of action, it is asserted that the supervisors are trust officers having the duties and liabilities of trustees; that there has been a breach of mandatory duty in the use of courthouse property for a private parking lot; that the defendants have violated the due process and impairment of contract provisions of the United States Constitution and have intentionally and/or negligently wasted the taxpayers' money. Not only are the defendants alleged to have breached statutory ministerial duties but they are also charged with conspiracy and 'acts of oppression, fraud and malice, both express and implied,' justifying an award of punitive damages.

The respondents argue that in the complaint as finally amended, appellant has included no allegation of any act, official or otherwise which (1) was not authorized by law; (2) did not follow prescribed modes; (3) constituted an illegal expenditure of funds; or (4) which was in any way wrongful or fraudulent. They also contend that appellant has, by a failure to discuss such matters, waived and abandoned any error in the rulings of the trial court. As pointed out by respondents, demurrers, both general and special, had been filed which challenged such vital matters as plaintiff's legal capacity to sue; improper joinder of actions and a failure to separately state various causes of action; misjoinder of parties defendant; lack of jurisdiction over the person of the defendant William A. Smith, deceased; uncertainty; and the statute of limitations.

Fundamental is the principle that a reviewing court cannot be expected to prosecute an independent inquiry for errors, but will only notice those assignments properly brought to its attention. Philbrook v. Randall, 195 Cal. 95, 104, 231 P. 739. The basic reason for this rule is obvious since all persumptions and intendments must be indulged in favor of the judgment or order appealed from.

It is indeed problematical whether the appellant has sufficiently complied with the principle just stated. In some instances, important matters, challenged by demurrer or otherwise, have received little or no substantial discussion or answer at appellant's hands; in others there has been no more than a dogmatic assertion or a resort to unamplified conclusion. In certain instances there has been nothing more substantial than a generalization which seems to assume the existence of the very facts upon which any cause of action must rest. This is neither good pleading nor is it what the opposing parties have a right to expect.

Perhaps appellant may have answered some of his attacks by inference, if not by direct statement. The charge of uncertainty in the complaint, in itself a serious charge in the present case, may perhaps be deemed answered by appellant's general assertion of the existence of one or several causes of action and his amplification of this theme. The matter, however, is not free from doubt.

It is true, as stated by the court in Kauffman v. Bobo & Wood, 99 Cal.App.2d 322, at page 323, 221 P.2d 750, 751, that: 'pleadings and amendments thereto should be allowed and construed liberally with the object of affording every litigant his day in court and to render substantial justice between the parties.' By way of the many amendments, appellant has been accorded this very right.

Notwithstanding the fact that there may well have been at least a technical abandonment or waiver of matters not discussed, nevertheless appellant will be given the benefit of the doubt so that the merits of the appeal may be considered. This leads to a survey of the complaint in its final amended forms, and to the conclusion that no cause of action has been stated therein.

It is axiomatic that the title or label which embellishes a pleading does not determine the nature of the action therein; its legal effect depends upon the allegations set out. Shimmon v. Moore, 104 Cal.App.2d 554, 556, 232 P.2d 22. Quite as elementary is the proposition that pleadings must be read and construed as a whole. And, while a liberal interpretation is permitted by section 452 of the Code of Civil Procedure, yet it is also true that a pleading is to be construed most strongly against the pleader, and in the absence of a contrary allegation, no intendment can be indulged in that the pleader has not stated his case as strongly as it is possible to do. Scafidi v. Western Loan & Bldg. Co., 72 Cal.App.2d 550, 571, 165 P.2d 260. Known to every lawyer and needing no citation of authority these fundamental principles are nevertheless of importance in...