Martin v. City of Corning

• Decision Date: 20 April 1972
• Citation: 25 Cal.App.3d 165,101 Cal.Rptr. 678
• Court: California Court of Appeals Court of Appeals
• Parties: Dennis C. MARTIN, on behalf of himself and all other taxpayers of the City of Corning, State of California, Plaintiff and Appellant, v. CITY OF CORNING, a municipal corporation, et al., Defendants and Respondents. Civ. 12814.

Page 678

101 Cal.Rptr. 678

25 Cal.App.3d 165

Dennis C. MARTIN, on behalf of himself and all other taxpayers of the City of Corning, State of California, Plaintiff and Appellant, v. CITY OF CORNING, a municipal corporation, et al., Defendants and Respondents.

Civ. 12814.

Court of Appeal, Third District, California.

April 20, 1972.

Watt & Leverenz, by Carl B. Leverenz, Chico, for plaintiff-appellant.

C. A. Stromsness, City Atty., Corning, for defendants-respondents.

JANES, Associate Justice.

Plaintiff taxpayer appeals, after trial by the court, from a judgment entered in favor of all defendants in his action against the City of Corning, the city clerk, and the members of the city council.

In 1968, after first procuring an engineering cost estimate, the council and the city's director of public works determined that curbs and gutters should be installed along First Street in Corning. Cost of the curbs and gutters was estimated at $5,050.50.

The director of public works or his representative then contacted all owners of property abutting First Street and secured from each a written agreement to pay, on a front footage basis, the individual owner's proportionate share of the actual cost of the curb and gutter work. Upon completion of the project, the individual owner's payment was to be made to the city in a lump sum or over a period of 12, 18 or 24 months. ¹

After the owners had signed such agreements, the director of public works--on order of the city council--orally notified Frank Willis, a local contractor, that he was to install the curbs and gutters at $1.50 per lineal foot, the same figure Willis had used on prior jobs of the same nature for the city. The First Street curb and gutter work was not advertised for competitive bids, and no such bids were received. Willis was the only contractor whom defendant city contacted.

Willis installed the curbs and gutters on First Street sometime between the summer of 1968 and the spring of 1969. ² Upon the council's approval of his bill for completed work, Willis was paid by the city (not by the property owners). There was no evidence as to how much he was actually paid. ³ He testified he had not received full payment by the time of trial. ⁴

The principal theory pursued by plaintiff in his complaint and at trial was that the curb and gutter work done by Willis was substandard. The complaint further alleged, however, that the work was 'not let out to the lowest bidder'; and, after the competitive bidding issue had been briefed, the court denied plaintiff's request for a special conclusion '(t)hat money paid for curb and gutter work out of the revolving fund (fn. 1, supra) is subject to the provisions of Government Code (section) 37902.'

Section 37902 is part of Government Code Title 4 pertaining to the government of cities; and, at the times here relevant, the section provided: 'When the expenditure required for a public project exceeds two thousand five hundred dollars ($2,500), it shall be contracted for and let to the lowest responsible bidder after notice.' ⁵ Where such a statute is applicable to a public contract, noncompliance with the provisions of the statute renders the contract void. (East Bay Garbage Co. v. Washington Township Sanitation Co. (1959) 52 Cal.2d 708, 714, 344 P.2d 289; Miller v. McKinnon (1942) 20 Cal.2d 83, 87--89, 124 P.2d 34; Arthur v. City of Petaluma (1915) 27 Cal.App. 782, 786, 151 P. 183.)

Plaintiff's sole contentions on appeal are that the curb and gutter project on First Street was subject to section 37902, and that the city's noncompetitive contract with Willis was therefore void. On the record before us, the contentions are sound. However, we must reverse the judgment for another reason--plaintiff's failure to join Willis as a defendant--which we discuss preliminarily.

WILLIS IS AN INDISPENSABLE PARTY TO THE ACTION

The complaint sought an injunction restraining 'the expenditure and further expenditure of public funds' for the curbs and gutters installed by Willis. ⁶ The complaint also prayed that defendants 'be ordered to reject said works and have said works brought up to specification or seek damages to compensate for the construction of curbs and gutters which meet specifications.' At trial, however, plaintiff expressly narrowed the scope of the relief requested and asked only for a declaratory judgment that the city's contract with Willis was void.

Willis, as a party to the contract, was an indispensable party to the action, since his interests would inevitably be affected by a judgment rendering the contract void or enjoining further payment to him thereunder. (Holt v. College of Osteopathic Physicians & Surgeons (1964) 61 Cal.2d 750, 760--761, 40 Cal.Rptr. 244, 394 P.2d 932; Holder v. Home Sav. & Loan Ass'n (1968) 267 Cal.App.2d 91, 107, 72 Cal.Rptr. 704; Irwin v. City of Manhattan Beach (1964) 227 Cal.App.2d 634, 38 Cal.Rptr. 875; Miracle Adhesives Corp. v. Peninsula Tile Contractors Ass'n (1958) 157 Cal.App.2d 591, 321 P.2d 482; Code Civ.Proc., § 389. ⁷ ) Inexplicably, although plaintiff called Willis as a witness, plaintiff did not name him as a defendant. 'The absence of an indispensable party deprives the court of jurisdiction over the subject matter. (Citations.)' (Southern Cal. Title Clearing Co. v. Laws (1969) 2 Cal.App.3d 586, 589, 83 Cal.Rptr. 8, 10; see also, 3 Witkin, Cal. Procedure (2d ed.), Pleading, § 133, p. 1805.)

Insofar as the record shows, in the trial court no point was made of plaintiff's failure to join Willis. Defendants' appellate brief calls it to our attention. Plaintiff's closing brief ignores the point. 'This issue is fundamental, and is valid, even though first raised on appeal' (Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405, 412, 93 Cal.Rptr. 338, 342; see, 3 Witkin, Cal. Procedure (2d ed.), Pleading, § 133, p. 1806), and 'even though the trial court has determined the merits adversely to plaintiff' (Southern Cal. Title Clearing Co. v. Laws, supra, 2 Cal.App.3d at p. 589, 83 Cal.Rptr. at p. 10; see, Holt v. College of Osteopathic Physicians & Surgeons, supra, 61 Cal.2d 750, 40 Cal.Rptr. 244, 394 P.2d 932). As said in Irwin v. City of Manhattan Beach, supra, 'Since the appeal is from a void judgment, we are without authority to affirm it, as the trial court was without authority to

render it.' (277 Cal.App.2d at p. 639, 38 Cal.Rptr. at p. 878.) ON THE RECORD BEFORE US, GOVERNMENT CODE SECTION 37902 WAS APPLICABLE TO THE CURB AND GUTTER PROJECT

Since Willis is an unjoined indispensable party, we can make no binding disposition of plaintiff's contentions that the curb and gutter work was subject to Government Code section 37902, and that the Willis contract was therefore void. For the benefit of the trial court upon remand, however, we assess those contentions in light of the present record.

At the outset, only brief mention need be made of defendants' suggestion that, because plaintiff seeks merely to void the contract, the appeal is moot. Although the court made no finding as to whether Willis had been fully paid, he testified that he had not, and, as we have pointed out, defendants concede such nonpayment. (See fn. 4, supra.) Moreover, the issues presented are of public importance and should be set at rest so that defendant city may arrange for similar work without doubts as to the applicability of the bidding statute. (See, Perry v. City of Los Angeles (1909) 157 Cal. 146, 147, 106 P. 410; 6 Witkin, Cal. Procedure (2d ed.), Appeal, §§ 469--470, pp. 4424--4428.)

The trial court's written 'Announcement of Intended Decision' indicates that it found 'no substantial violation' of section 37902 for two reasons--First, because of some question in the court's mind as to whether the curb and gutter work was a 'public project' within the meaning of that section; and Second, because '(t)he evidence does not . . . clearly indicate that any work done by Willis exceeded the limit of $2,500.00 . . . provided in the Statute.'

Government Code section 37901, however, defines 'public project' as used in section 37902, and included in such definition is 'Street . . . work except maintenance or repair.' As generally used in statutes pertaining to the construction of public improvements, the word 'street' or 'roadway' includes 'curbs' and 'gutters.' (See, Sts. & Hy.Code, § 5871; Barber Asphalt Paving Co. v. Jurgens (1915) 170 Cal. 273, 280, 149 P. 560; City Street Improvement Co. v. Taylor (1903) 138 Cal. 364, 366, 71 P. 446; cf., Kitzman v. Newman (1964) 230 Cal.App.2d 715, 722, 41 Cal.Rptr. 182.) There is no reason to think that the Legislature intended a different result as to section 37902, especially since section 37901 also broadly defines 'public project' as including 'A project for the erection, (and) improvement . . . of public . . . works.'

The second reason stated by the trial court is no more tenable. Although there was no evidence as to how much Willis was actually paid, the undisputed evidence was that the cost estimate obtained by the city came to $5,050.50 for the curbs and gutters on First Street--an amount over twice as large as the $2,500 ceiling in section 37902. (See fn. 5, supra.) Such cost estimate was sufficient to bring the proposed curb and gutter work within the bidding statute. (Miller v. McKinnon, supra, 20 Cal.2d at p. 93, 124 P.2d 34.) Indeed, as a practical matter, cities must necessarily depend upon cost estimates in determining whether section 37902 applies to a given project. If the trial court's reasoning were correct, and if applicability of the bidding statute depended upon the sum actually paid to the contractor, it would be necessary to wait until the project was Finished before it could be ascertained whether section 37902 should have been followed Before construction commenced--a result plainly never intended by the Legislature.

Defendants argue that the curb and gutter work 'was done by the contractor, for the landowners...