Leppo v. City of Petaluma

• Decision Date: 20 October 1971
• Citation: 97 Cal.Rptr. 840,20 Cal.App.3d 711
• Court: California Court of Appeals
• Parties: Harrison McNear LEPPO and George Rolando Leppo, as Trustees of the Trust created for the lifetime benefit of Clara McNear Leppo under the Will of George P. McNear, deceased, Plaintiffs and Respondents, v. CITY OF PETALUMA, Municipal corporation, Cecil H. Kinney, doing business as KTK Wrecking Company, Defendants and Appellants. Civ. 27288.

Page 840

97 Cal.Rptr. 840

20 Cal.App.3d 711

Harrison McNear LEPPO and George Rolando Leppo, as Trustees of the Trust created for the lifetime benefit of Clara McNear Leppo under the Will of George P. McNear, deceased, Plaintiffs and Respondents, v.CITY OF PETALUMA, Municipal corporation, Cecil H. Kinney, doing business as KTK Wrecking Company, Defendants and Appellants.

Civ. 27288.

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

Oct. 20, 1971.

Hearing Denied Dec. 16, 1971.

Edouard E. Robert, City Atty., of the City of Petaluma, Petaluma, William B. Boone, Santa Rosa, for appellants.

John D. Flitner, City Atty., City of Santa Rosa, Santa Rosa, for City of Santa Rosa, amicus curiae.

Allen Grimes, City Attorney, City of Beverly Hills, Beverly Hills, for City of Beverly Hills, amicus curiae.

John B. Lounibos, Lounibos & Lounibos, Petaluma, Paul S. Jordan, Michael P. Carbone, Lamson, Jordan, Walsh & Lawrence, San Francisco, for respondents.

John A. Van Ryn, City Atty., City of Santa Maria, Santa Maria, for City of Santa Maria, amicus curiae.

HAROLD C. BROWN, Associate Justice.

Respondents were awarded a judgment in the sum of $30,636.42 by reason of the demolition of their building by the City of Petaluma and their demolition contractor, Cecil H. Kinney.

The City of Petaluma claims (1) that respondents' complaint did not state a cause of action; (2) that the respondents should have instituted an action to restrain the demolition; (3) that the trial court erred in ruling that the city had the burden of proving the dangerous condition of the building, and (4) that the evidence did not support the trial court's finding that the building was not a public nuisance.

Appellant Kinney contends that the liability, if any, is upon the public agency and not the contractor.

Respondents, as trustees of a testamentary trust, are the owners of real property in the City of Petaluma.The property was improved with a three-story building known as the American Hotel Building which was approximately 100 years old at the time of its demolition.The two upper floors were used for hotel or rooming house purposes, and the street floor was divided into three stores occupied by tenants engaged in various types of retail business.

In January of 1966, a one-story structure abutting the building was demolished.The north wall of respondents' building was thus exposed disclosing its dilapidated condition.The city building inspector and city engineer, after examination of its exposed condition, concluded that the building was unsafe for occupancy.The respondents were notified.A structural engineer employed by respondents, however, disputed the city's opinion that the building was imminently dangerous.Thereafter considerable correspondence was had between the city and respondents.In May, the city wrote to the occupants and suggested that they take immediate steps to relocate because of the opinion that cracks in the building were widening.

The city council also determined in May to proceed to demolish the building without any judicial determination that it constituted a nuisance.The city attorney wrote respondents' attorney advising that if respondents did not express an intention by June 10 to act upon their own to demolish the building, the city would proceed with the demolition.At a meeting of the city council on June 13, 1966, a resolution was passed declaring the building to be a public nuisance and directing its abatement.Pursuant thereto, appellant Kinney, a contractor, was awarded a contract by the city council for the demolition.Kinney completed the demolition in September.Thereafter this action was instituted which resulted in a judgment for respondents in the sum of $30,636.42.

Appellants contend that the complaint was fatally defective because it failed to allege that the building was not a public nuisance; that there was a failure to give respondents an opportunity to be heard, and that there was a failure to obtain a judicial or administrative determination of whether the building was a nuisance.

Respondents' complaint alleged that '* * * (D)efendant CECIL H. KINNEY * * * entered into a contract with defendant city to undertake the demolition of the building.Pursuant to said contract and acting at the direction of said defendant city, said defendantCECIL H. KINNEY unlawfully entered upon plaintiffs' said real property, over their objections and without their consent, and proceeded to demolish the entire building situated thereon * * *.'(Emphasis added.)

The complaint also alleged that the city council took Summary action to abate as a public nuisance plaintiffs' property without a court determination.

'In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.'(Code Civ.Proc., § 452.)

'In the exercise of the right of eminent domain, private property may not be taken without compensation therefor, whereas, in the exercise of the police power, the use of property may be restricted or it may even be destroyed, and no legal liability arises to compensate the owner therefor.'(Patrick v. Riley, 209 Cal. 350, 355, 287 P. 455, 456quoting fromGray v. Reclamation Dist., 174 Cal. 622, 638, 163 P. 1024.)An unjustified or unlawful exercise of the police power in destroying a private dwelling will give rise to a cause of action for damages against the public authority.(See alsoHouse v. L.A. County Flood Control Dist., 25 Cal.2d 384, 388--389, 153 P.2d 950.)

We have concluded that under the rule of construction and the applicable law set forth above, the cause of action was sufficiently pleaded.(SeeSolly v. City of Toledo, 7 Ohio St.2d 16, 218 N.E.2d 463.)

Appellants' next contention is that respondents should have sought an extraordinary writ to restrain the demolition.

It is not disputed that the respondents could have sought relief from the city's order by proceeding under section 1094.5 of the Code of Civil Procedure to restrain the demolition.As appellants point out, this has been done in a number of cases.(E.g., Armistead v. City of Los Angeles, 152 Cal.App.2d 319, 313 P.2d 127;Yen Eng v. Board of Building & Safety Commissioners, 184 Cal.App.2d 514, 7 Cal.Rptr. 564;Perepletchikoff v. City of Los Angeles, 174 Cal.App.2d 697, 345 P.2d 261.)These cases, however, do not hold or contain language which would support a holding that the property owner waives his right to bring an action for damages by a failure to proceed by way of an extraordinary writ.Obviously the city also had an alternative to summary abatement and could itself have filed a complaint seeking a judicial determination that the building was a public nuisance.(E.g., City of Bakersfield v. Miller, 64 Cal.2d 93, 48 Cal.Rptr. 889, 410 P.2d 393.)The city can hardly now complain that the respondents did not seek the earlier remedy which it had decided to forego.

No California case has been cited or found in which the landowner has brought a suit for damages after destruction of the building.In the Ohio case of Solly v. City of Toledo, 218 N.E.2d 463, 467, the court stated: 'It may be suggested that, after plaintiff was notified that the city had found public nuisances to exist at her two properties and that unless she abated those nuisances within 30 days the city would destroy the properties, plaintiff should have sought to enjoin the city from destroying those properties, and, not having done so, cannot now recover damages because the city did destroy them.However, the owner of property is under no duty to bring an action to enjoin its threatened wrongful destruction and failure to do so will not prevent recovery for damages caused by that destruction.(Moll Co. v. Holstner(1934)252 Ky. 249, 67 S.W.2d 1.)'

We agree with the reasoning of Solly and apply it here.The remedies afforded an aggrieved owner of property include an action for damages as well as preventive measures by injunction proceedings.

The next question raised is whether the trial court erred in holding that the city had the burden of proving that respondents' building constituted a public nuisance and as such warranted summary demolition.

Respondents, as plaintiffs, produced evidence that they were the owners of the building; that their engineer had given them information that the building was not a danger and that they had refused written or oral authorization to the City of Petaluma to demolish the building, and, further, that they were not afforded a hearing on the question of the immediate need for the demolition and thus were...