People By and Through Department of Public Works v. Lagiss
| Decision Date | 02 May 1958 |
| Docket Number | No. 17791,17791 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Respondent, v. Anthony G. LAGISS, Defendant and Appellant. |
John A. Nejedly, Walnut Creek, for appellant.
Robert E. Reed, Holloway Jones, Jack M. Howard, Harry C. Miller, San Francisco, for respondent.
Defendant appeals from a judgment in a condemnation action awarding him $10,000 for property condemned for highway purposes.
Questions Presented.
1. Did defendant stipulate that the taking of the entire parcel was necessary?
2. Did defendant's answer plead a cause of defense?
3. Did the court err in denying defendant's offer of proof that the Highway Commission was acting in bad faith?
4. Did the filing of the third amended answer in effect waive error in sustaining of demurrer to prior answers?
Record.
After adoption by the California Highway Commission of the resolution of public interest and necessity required by section 102, Streets and Highways Code, this action was brought to condemn for highway purposes (among lands of other defendants not interested in this appeal), a parcel of land in Contra Costa County belonging to defendant. Defendant answered, denying that the whole of the parcel was needed by plaintiff for highway or any public purpose. The answer set up a description of a portion of the parcel which defendant alleged only was needed. He further alleged that the commission in passing its resolution acted in bad faith and abused its discretion in that it knew or should have known that only a portion of the parcel was needed for any public purpose; that it is apparent from the face of the complaint that only the portion between the highway lines shown on the map was necessary and that there are no plans for or possible use of the remainder of said parcel; that the commission and the department had no independent knowledge of the public necessity in acquiring all of said parcel and that its acquisition was for the sole purpose of depriving defendant of compensation justly due him, also to harass him, as plaintiff well knew defendant wished to retain that portion of the parcel not needed for the public improvement, and to coerce defendant into accepting a sum for the taking substantially less than the fair market value of the land actually needed for the improvement.
A motion to strike the allegations of the answer concerning bad faith was granted and a demurrer to the answer sustained with leave to amend. Defendant filed an amended answer containing the same allegations as the first answer. Again plaintiff moved to strike these allegations and the motion was granted.
Defendant then filed a second amended answer containing the same allegations plus one to the effect that plaintiff determined to take the property for the purpose of harassing defendant as plaintiff submitted to defendant 'a stipulation in which the plaintiff would acquire only the above described portion of said parcel provided that the defendant would waive any rights to severance damage from the taking of only a portion of the larger parcel. * * *' Again, a motion to strike these allegations was granted.
On the first day of the trial, in chambers, defendant stated he desired to file a third amended answer, and made an offer of proof that an employee of the Right of Way Section of the Division of Highways would testify that the taking of the entire parcel was not necessary for the public right of way, that a portion of it was not needed and that the employee and a counsel for the division offered to stipulate that the property not needed for the public right of way would be excluded from the action provided defendant would stipulate that no severance damages would be claimed. The court denied the offer on the theory that the defendant could not go behind the resolution. Thereupon, after striking out of the third amended answer, at the court's order, an allegation that the portion of the parcel actually required was of the value of $35,000, and the value of the portion not needed was $18,000, and inserting the figure of $53,000 as the value of the parcel sought to be condemned, that answer was filed. It contains no allegations of bad faith or that the entire parcel was not needed, other than a denial of the allegations of the complaint.
At the end of the proceeding in chambers defendant stipulated to 'the fact of the existence of the resolution duly and regularly passed laying out the public necessity.' Thereupon plaintiff stated that it would not offer the resolution in evidence. This admittedly was the only stipulation on the subject. Unfortunately, the minutes of that day went way beyond the stipulation as made. They show that defendant stipulated not only to the fact of the passing of the resolution but that he stipulated to the necessity for the taking of the entire parcel for highway purposes and to other matters which would preclude defendant from raising the question herein considered. Obviously a minute order may not enlarge the terms of a stipulation as actually made. Plaintiff's contention that we are bound by the minute order's purported interpretation of the stipulation rather than by the stipulation itself is not well founded. The stipulation as made did not conclude defendant from attacking anything other than the fact that the resolution was duly adopted.
Before determining the effect of the court's denial of defendant's offer of proof, it is necessary that we determine the validity of defendant's plea of bad faith and lack of public purpose in the proposed use.
Section 103, Streets and Highways Code, declares that the commission's resolution declaring the public interest and necessity is conclusive evidence (a) of the public necessity of the proposed improvement, (b) that the real property described is necessary therefor, and (c) that the proposed improvement is planned or located in a manner which will be most compatible with the greatest public good and the least private injury. This, of course, does not preclude a court from determining whether the use described in the resolution is a public use. Nor is the truth of the findings declared in the resolution immune from judicial inquiry if tainted by fraud, bad faith or abuse of discretion. City of La Mesa v. Tweed & Gambrell Planing Mill, 146 Cal.App.2d 762, 777, 304 P.2d 803; People ex rel. Dept. of Public Works v. Schultz Co., 123 Cal.App.2d 925, 941, 268 P.2d 117; People v. Thomas, 108 Cal.App.2d 832, 835-836, 239 P.2d 914.
To present such an issue, one must plead it. People ex rel. Dept. of Public Works v. Schultz Co., supra, 123 Cal.App.2d 925, 941, 268 P.2d 117, and cases there cited. '* * * bare allegations as to fraud, bad faith, abuse of discretion and that the California Highway Commission was acting in excess of its authority' are not sufficient. People v. Thomas, supra, 108 Cal.App.2d 832, 836, 239 P.2d 914, 917; County of Siskiyou v. Gamlich, 110 Cal. 94, 98, 42 P. 468. '* * * specific facts constituting fraud, bad faith or abuse of discretion' must be pleaded. People v. Thomas, supra, 108 Cal.App.2d at page 836, 239 P.2d at page 917. Here defendant did plead such facts as that the commission knew that only a portion of the land was needed for a public purpose, that it included the whole parcel knowing that he wanted to use a portion of it, that it did it to coerce him into taking less than the fair market value of the property.
When defendant alleged that the commission acted in bad faith and abused its discretion by passing the resolution reciting a need for the whole of this parcel when it knew there was no need for a portion of it and had no plans for its use and did so to harass the defendant (and the other similar allegations recited earlier in this opinion), he clearly and specifically pleaded fraud, bad faith and abuse of discretion.
The court erred in striking from defendant's answers the allegations above mentioned and in sustaining demurrers thereto. This brings us to----
As defendant should have been permitted to plead his charge of bad faith, abuse of discretion and lack of public purpose, so should he have been permitted to prove the same. In City of La Mesa v. Tweed & Gambrell Planing Mill, supra, 146 Cal.App.2d 762, 304 P.2d 803, the trial court refused to permit evidence similar to that contained in defendant's offer of proof, to be admitted on the theory that it was inadmissible because made in negotiation for compromise. The reviewing court stated (146 Cal.App.2d at page 777, 304 P.2d at page 812): 'Evidence of facts tending to show fraud and bad faith on the part of the city were admissible in this action as proof of the allegations contained in the defendants' amended answer, even though the events related occurred during negotiations to effect a compromise seeking acquisition of the 40-foot strip in question. The honesty and good faith of the city was not an issue in controversy at the time of these negotiations, and it made no admissions with respect thereto in order to effect a compromise. The fact that statements are made or incidents take place during negotiations to effect a compromise, does not justify exclusion of evidence relating to the same if such evidence otherwise is admissible. [Citations.] It would not be competent to admit an offer of compromise as such; however, 'the declaration therein of facts involved in the controversy which are not mere concessions made for the purpose of such offer, but are statements of independent facts, are admissible against the party making them.' [Citation.] Plaintiff's objection properly was overruled.'
The evidence offered comes within the above ruling. Whether such...
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