People By and Through State Lands Commission v. City ofLong Beach

• Decision Date: 28 July 1960
• Citation: 6 Cal.Rptr. 658,183 Cal.App.2d 271
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, acting By and Through the STATE LANDS COMMISSION of the State of California, and Robert J. Kirkwood, Harold J. Powers and John M. Peirce, as members of said Commission, Plaintiff, v. CITY OF LONG BEACH, a Municipal Corporation, Defendant-Respondent, and Carl Whitson, Intervenor-Appllant. Civ. 24616.

Page 658

6 Cal.Rptr. 658

183 Cal.App.2d 271

PEOPLE of the State of California, acting By and Through the STATE LANDS COMMISSION of the State of California, and Robert J. Kirkwood, Harold J. Powers and John M. Peirce, as members of said Commission, Plaintiff, v. CITY OF LONG BEACH, a Municipal Corporation, Defendant-Respondent and Carl Whitson, Intervenor-Appllant.

Civ. 24616.

District Court of Appeal, Second District, Division 2, California.

July 28, 1960.

Rehearing Denied Aug. 23, 1960.

Hearing Denied Sept. 20, 1960.

Carl Whitson, in pro. per.

Stanley Mosk, Atty. Gen., Howard S. Golding, Deputy Atty. Gen., for respondent State.

Walhfred Jacobson, City Atty., Long Beach, and O'Melveny & Meyers and Pierce Works, Los Angeles, for respondent City of Long Beach.

KINCAID, Justice pro tem.

Appellant hereinafter referred to as 'Whitson' appeals from two orders denying him leave to intervene in the within action. The first such order granted an exparte motion to vacate and set aside a prior ex parte order allowing Whitson to intervene. The second order denied his application for leave to intervene, made on notice.

On July 26, 1957, plaintiff, the People of the State of California, filed a 'Complaint for Declaratory Relief and to Quiet Title' to certain tide and submerged lands. This case involved the interpretation and legal effect of a quitclaim deed of October 15, 1932, from the city of Long Beach to the state of California. Subsequently defendant filed its answer and cross-complaint with the plaintiff's answer thereto following. A pretrial conference was held and after several continuances the trial of the case commenced on November 24, 1959. Certain documents were received in evidence and the trial was thereupon continued to January 18, 1960. The minute order stated in part: 'In the event that counsel are able to present the matter by Briefs at that time, no further hearing shall be had, and cause shall be deemed submitted.' The only additional evidence received in the trial after November 24, 1959, was a written stipulation of facts filed with the trial court.

On December 3, 1959, Whitson presented a complaint in intervention, in propria persona, and a petition for intervention. These were presented ex parte to a court commissioner who granted the leave and the complaint in intervention was thereupon filed. Thereafter on December 9, 1959, said commissioner by ex parte order struck the complaint in intervention from the files and signed a judgment of dismisal of the complaint in intervention.

On December 16, 1959, Whitson filed a notice of motion for leave to intervene or appear amicus curiae. This motion was noticed before the trial judge and, after hearing, was denied.

The sole issue on appeal is: Did the trial court properly deny to Whitson permission to intervence in the instant case?

Appeal may be taken from an order denying leave to intervene (Dollenmayer v. Pryor, 150 Cal. 1, 3, 87 P. 616). If leave to intervene is first granted and later set aside or stricken on motion, the intervenor may appeal from the order striking the complaint in intervention (Ryan v. McKinley, 124 Cal.App. 765, 766, 13 P.2d 522; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 661, 665, 91 P.2d 599).

There are several valid grounds upon which the court might properly exercise its discretion in denying the right of Whitson to intervene in the within action. One such ground is that the application to intervene was not timely made in that it was not made at a time before trial of the action. Section 387 of the Code of Civil Procedure provides in part as follows: 'At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding * * *.' (Emphasis supplied.)

The trial had commenced on November 24, 1959, and thr first petition for intervention and complaint were not filed until December 3, 1959. Under these circumstances the action of the trial court in denying the successive applications was proper. As pointed out in Hibernia Savings & Loan Society v. Churchill, 128 Cal. 633, 636, 61 P. 278, section 387 of the Code of Civil Procedure, requries an intervention to be made 'before trial' and an intervention will not be allowed when it would retard the principal suit, or require a reopening of the case for further evidence, or delay the trial of the action, or change the position of the original parties. The complaint in intervention offered by Whitson sought to enlarge the scope and function of the proceedings then in course of trial in that said complaint attempted to inject questions of asserted federal title and interest into a declaratory relief and quiet title suit between the plaintiff state and the defendant city as well as seeking to attack the validity of a deed from the former to the latter executed in 1932. A consideration of these expanded issues would manifestly have delayed the trial of the action in that the taking of additional evidence would have been required.

Furthermore, the right of a third person to intervene in a pending action is purely statutory. As stated in Faus v. Pacific Electric Ry. Co., 134 Cal.App.2d 352, 355-356, 285 P.2d 1017, 1019: 'Intervention is not a matter of absolute right, but may be permitted by leave of court when the petitioner shows facts which satisfy the requirements of section 387 of the Code of...