Perlman v. Municipal Court

• Citation: 99 Cal.App.3d 568,160 Cal.Rptr. 567
• Parties: Michell Florence PERLMAN et al., Plaintiffs and Respondents, v. The MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Appellant. Civ. 54725.
• Decision Date: 11 December 1979
• Court: California Court of Appeals Court of Appeals

Page 567

160 Cal.Rptr. 567

99 Cal.App.3d 568

Michell Florence PERLMAN et al., Plaintiffs and Respondents, v. The MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent The PEOPLE, Real Party in Interest and Appellant.

Civ. 54725.

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

Dec. 11, 1979.

Hearing Denied Feb. 7, 1980.

Burt Pines, City Atty., and Ward G. McConnell, Asst. City Atty., for real party in interest and appellant.

Barry A. Fisher, Robert C. Moest, David Grosz and Larry J. Roberts, Los Angeles, for plaintiffs and respondents.

No appearance for defendant and respondent.

HANSON, Associate Justice.

The People of the State of California appeal from a judgment of the Los Angeles County Superior Court granting a peremptory writ of prohibition as to a proceeding in municipal court charging Michell Florence Perlman, Sandra Dimock Leavitt, Christina Fowler, Patricia Mary Demperio, Rosalie J. Borthwick and Mirian Briks (hereinafter referred to collectively as defendants) with a violation of Los Angeles Municipal Code section 44.12 (hereinafter referred to as section 44.12) by soliciting contributions.

FACTS

On December 23, 1977, separate criminal complaints were filed charging the six above-named defendants with violation of section 44.12, soliciting charitable contributions without an Information Card, a misdemeanor. The six defendants, who are members of the Hare Krishna sect, were soliciting contributions at the Los Angeles International Airport.

On January 30, 1978, the six defendants demurred to the respective criminal complaints filed against them. The trial court overruled their demurrers and proceedings for disposition or trial setting were set for March 28, 1978. On February 2, 1978, defendants filed their petition for writ of prohibition in the superior court. The petition was not personally verified by defendants but bore a verification on information and belief made "for the sake of convenience" by their counsel. It was therein alleged that the defendants relied upon the same grounds raised in the municipal court, namely, that the municipal ordinance under which the complaints were brought is unconstitutional on its face because it provides neither (1) narrow and specific standards to protect against the arbitrary exercise of official discretion in issuing licenses for charitable solicitations nor (2) due process procedural safeguards to insure that due process is satisfied by judicial review of administrative action. The various attachments to the petition include uncertified and unsigned copies of the criminal complaints charging defendants.

The superior court granted the alternative writ and order to show cause issued in the matter scheduling hearing for March 7, 1978. On March 3, 1978, the Los Angeles City Attorney demurred on grounds, inter alia, that essential allegations were not pleaded and filed an answer including a general and special denial of all allegations of the petition. On March 6, 1978, the defendants filed a reply. No evidentiary material was introduced at the hearing.

Following hearing in the matter Judge Pacht overruled the People's demurrer to the petition and ruled that section 44.12 is unconstitutional on its face in that it is vague and overbroad insofar as it purports to deal with activity generally protected by the First Amendment to the United States Constitution, citing Hynes v. Mayor of Oradell (1976) 425 U.S. 610, 612, 96 S.Ct. 1755, 48 L.Ed.2d 243, and Burton v. Municipal Court (1968) 68 Cal.2d 684, 688, 696, 68 Cal.Rptr. 721, 441 P.2d 281. Accordingly, the petition was granted and a peremptory writ issued. The People have appealed this judgment.

ISSUES

The People on appeal contend (1) that the petition for writ of prohibition was fatally defective in form and its allegations were thus inadequate to support the judgment; and (2) that the charitable solicitation ordinance of the City of Los Angeles (L.A.Mun.Code, §§ 44.01-44.20 (hereinafter referred to as the charitable solicitation ordinance)) is not unconstitutional because it is neither vague nor overbroad, and it vests no discretion in administrative officials to refuse to issue Information Cards.

DISCUSSION

Upon reviewing the constitutional authorities and the relevant provisions of the Los Angeles Municipal Code (hereinafter referred to as the municipal code), we conclude that the charitable solicitation ordinance is neither vague nor overbroad. Neither is the requirement that those who wish to solicit such contributions obtain an Information Card (which is in essence a permit) an unreasonable exercise of the police power of the city. (Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232, 163 P.2d 704.)

With respect to the issue first raised by the People we note that the petition for the writ was not properly verified. A writ of prohibition "is issued upon the verified petition of the person beneficially interested." (Code Civ.Proc., § 1103.) The requisites for verification are set forth in Code of Civil Procedure section 446, which directs that, absent extenuating circumstances, a pleading shall be verified by the party litigant. ¹ An attorney may verify a pleading with the following limitations: "(T)he verification may be made by the attorney, . . . when the party is absent from the county or from some cause (is) unable to verify the pleading, and in the presence of either of these conditions the verification may be made by the attorney . . . on information and belief; or, if the facts are within the knowledge of the attorney . . ., (he) may verify the pleading without regard to the existence of such conditions. . . ." (Bittleson Law, etc., Agency v. Howard (1916) 172 Cal. 357, 361, 156 P. 515, 517.) When an attorney has verified the pleading as within his own knowledge and also on information and belief but without stating the reason it was not verified by the party, the court may permit the pleading to stand. (Bittleson Law, etc., Agency v. Howard, supra, 172 Cal. at p. 360, 156 P. 515; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 708, 32 Cal.Rptr. 288.)

In the instant case, the petition for the writ was verified by the attorney on information and belief with the allegation that he did so "for the sake of convenience." The attorney has at no time claimed that the facts are within his own knowledge. The pleading therefore does not qualify as "an affidavit verifying the truth of the matters covered . . . ." (star motor imporTs, iNc. v. superior court (1979) 88 cal.app.3d 201, 204, 151 Cal.Rptr. 721, 723.) It contains allegations based on information and belief with an insufficient statement as to why the parties were unable to verify the pleading personally. Assuming that the trial court despite the defect accepts the petition which is verified only on information and belief, it is the petitioner's duty to bring before the appellate court the records and papers used in the trial court "to the extent necessary to understand the proceedings and justify relief." (See 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 139, p. 3913.)

A petition "that . . . does not even purport to give all of the proceedings had in the respondent court, but only such portions of the pleadings, affidavits and proceedings as the petitioner wants to direct our attention to" (Rose v. Superior Court (1941) 44 Cal.App.2d 599, 601, 112 P.2d 713, 713) is subject to rejection by the appellate court. In the present case defendants alleged in their petition that they sought a writ on the same grounds advanced in the municipal court where their demurrers were overruled. In order for the superior court to rule on the merits of the case, it should have before it the record and reasons given by the trial court in reaching its decision. Since in this case defendants filed a petition verified only on information and belief, no valid evidence was submitted to the superior court and it was entitled to deny the petition on grounds of its insufficiency.

The question arises whether the procedural defect was waived by the People "by proceeding to trial without proper objection . . . ." (See, e. g., Ware v. Stafford (1962) 206 Cal.App.2d 232, 237, 24 Cal.Rptr. 153, 156-157.) The People argue that they did not waive their objection since by demurrer and answer to the petition they pointed out the insufficiency of the allegations due to the failure to supply a proper verification. However, the proper objection where a party fails to verify a pleading is a motion to strike (see, e. g., 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 356, p. 2020, § 862, p. 2466) which may be made only upon timely notice and provides for hearing and extension of time to answer. (Code Civ.Proc., § 435.) Apparently neither the parties nor the court focused upon this defective verification, a matter which could have been cured or resolved by the superior court in the course of the proceedings.

Because defendants may readily cure the procedural defect by amendment (Ware v. Stafford, supra, 206 Cal.App.2d at p. 237, 24 Cal.Rptr. 153; Franchise Tax Board v. Municipal Court (1975) 45 Cal.App.3d 377, 384, 119 Cal.Rptr. 552), we are inclined to give them that opportunity. Accordingly, we turn to the substantive issue to guide the superior court on remand.

The People contend that the charitable solicitation ordinance (L.A.Mun.Code, §§ 44.00 et seq.) is constitutional on its face, relying upon the California Supreme Court decision in Gospel Army v. City of Los Angeles, supra, 27 Cal.2d 232, 163 P.2d 704. The defendants, however, argue that that decision is no longer controlling in view of more recent cases scrutinizing First Amendment rights, particularly those relating to due process safeguards and so-called "standardless" licensing statutes.

It is settled beyond dispute that the defendants have standing, on a proper petition, to challenge the...