Santa Clara County Contractors & Homebuilders Ass'n v. City of Santa Clara

• Decision Date: 02 March 1965
• Citation: 232 Cal.App.2d 564,43 Cal.Rptr. 86
• Court: California Court of Appeals Court of Appeals
• Parties: SANTA CLARA COUNTY CONTRACTORS AND HOMEBUILDERS ASSOCIATION, a non-profit California corporation, Plaintiff and Respondent, v. CITY OF SANTA CLARA, a municipal corporation, Gene Burgess, Lawrence L. Fargher, Frank C. Keller, Robert H. Simons, Matt P. Talia, Austen D. Warburton, Maurice Dullea and Donald Von Raesfeld, Defendants and Appellants. Civ. 21887.

Page 86

43 Cal.Rptr. 86

232 Cal.App.2d 564

SANTA CLARA COUNTY CONTRACTORS AND HOMEBUILDERS ASSOCIATION, a non-profit California corporation, Plaintiff and Respondent, v. CITY OF SANTA CLARA, a municipal corporation, Gene Burgess, Lawrence L. Fargher, Frank C. Keller, Robert H. Simons, Matt P. Talia, Austen D. Warburton, Maurice Dullea and Donald Von Raesfeld, Defendants and Appellants.

Civ. 21887.

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

March 2, 1965.

Hearing Denied April 28, 1965.

Edwin J. Moore, City Atty. of City of Santa Clara, M. Van Smith, Asst. City Atty., Santa Clara, for appellants.

di Leonardo, Blake, Kelly, Aguilar & Leal, by Michael di Leonardo, Sunnyvale, for respondent.

BRAY, Justice. ^*

Defendants appeal from judgment of court without a jury, in favor of plaintiff, declaring invalid certain requirements of section 22, Santa Clara City Ordinance No. 1046 ¹, and enjoining their enforcement.

QUESTIONS PRESENTED

1. Does plaintiff have standing to sue?

2. Is section 22 unconstitutional because of preemption of field by the Subdivision Map Act?

3. Is the fee provision severable from the other requirements of section 22?

RECORD

Plaintiff sought declaratory relief against defendants who are the City of Santa Clara, a chartered city, its elected councilmen and its city manager, upon an amended complaint which alleged, in pertinent part, that it is a nonprofit California corporation, formed and existing, inter alia, 'to take unified action upon matters of legislative or governmental action affecting the contracting building, or construction industry, and to promote and protect the best interests of the public served by said industry' (attached to the complaint was a list of its members); that it was duly authorized to and does bring this action on behalf of all its members, in a representative capacity and for the benefit of each and every member; that section 22 of Ordinance No. 1046 of the City of Santa Clara is illegal, unconstitutional and void for the reasons hereinafter discussed; that defendants insist on compliance with the terms thereof. The complaint seeks a declaration of the rights of plaintiff, its members, and all others of the same class, and their legal relationships with defendants; that said ordinance section is void and asks that defendants be enjoined from enforcing it.

Defendants demurred generally. The demurrer was overruled. Defendants answered, denying the pertinent allegations of the complaint and affirmatively alleging that the complaint did not state facts to constitute a cause of action. At the trial, defendants moved to dismiss the action on the ground that plaintiff was not a real party in interest as required by section 367, Code of Civil Procedure. ²

The motion was denied. Plaintiff's Articles of Incorporation and section 22 of the ordinance in question were introduced in evidence and oral testimony had.

The court made Findings of Fact and Conclusions of Law finding a judiciable controversy between plaintiff, its members and all subdividers of the same class who would be adversely affected by the enforcement of section 22, and defendants; that plaintiff is a real party in interest; that the requirements of section 22 are invalid, illegal, unconstitutional, null and void; and that defendants should be permanently enjoined from enforcing its provisions. Judgment was entered accordingly.

1. Plaintiff's standing to sue.

Defendants contend that plaintiff corporation is not a member of the class for whose benefit the action is maintained because there is no evidence that either it or its members engage in the business of subdividing property. The bylaws reveal that active membership is open to anyone whose principal business is building construction or general contracting, including homebuilders.

As will hereinafter appear, it is the fee requirement section of 22 that is under attack. Subdivision (a) requires a fee from every 'subdivider or builder or developer or owner' of land in Santa Clara desiring approval of a map or a building permit. As plaintiff's membership includes homebuilders who would be affected by the necessity of paying a fee to obtain a building permit, it is immaterial that no evidence was offered that plaintiff's membership includes subdividers.

Defendants also contend that as plaintiff does not itself engage in building, it is not a party in interest for purposes of suit. Section 382, Code of Civil Procedure, provides in pertinent part: 'Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; * * * and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all.'

In Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158, an incorporated labor union representing members of a city fire department sought to restrain the city from discriminating against its members. The trial court concluded that as a matter of law the union had no capacity to sue. In holding that the conclusion that the plaintiff had no standing to sue was erroneous, the reviewing court, at page 284, 32 Cal.Rptr. at page 384, P.2d at page 162, stated, '* * * the plain meaning of both the Labor Code and the Government Code provisions hereinabove alluded to [Labor Code, §§ 1960-1963), Government Code, §§ 3500-3509] is that unions such as plaintiff may be organized for the sole purpose of representing their members. An action at law on behalf of such members is one form of such representation. Plaintiff is incorporated. Its members are all employees of the fire department and as such have a clear beneficial interest in the subject matter of the complaint. Its interest is joint with theirs. The entire action is one such as is contemplated by Code of Civil Procedure, section 382 and (if injunction be equated with mandate) under section 1086 as well.' While plaintiff in the action at bar is not a labor union, and, therefore does not have the benefit of the code provisions relating to labor unions, it is a professional association, incorporated, organized for the purpose of representing its members, who have a beneficial interest in the subject matter of the complaint, and whose members authorized it to bring the action. 'A representative suit is not permissible unless there is a community of interest between the members of the class with respect to the questions of law and fact involved, Parker v. Bowron, 40 Cal.2d 344, 352, 254 P.2d 6; Weaver v. Pasadena Tournament of Roses [Ass'n], 32 Cal.2d 833, 837-838, 198 P.2d 514, and a determination of whether a particular plaintiff can fairly protect the rights of the group he purports to represent is necessarily dependent upon the facts and circumstances of each case.' (Bowles v. Superior Court (1955) 44 Cal.2d 574, 587, 283 P.2d 704, 713.)

In Jellen v. O'Brien (1928) 89 Cal.App. 505, 264 P. 1115, the plaintiff sued to obtain a permanent injunction restraining the Chief of Police from enforcing a 'licensing' ordinance against the plaintiff or any member of the voluntary San Francisco Furniture Dealers Association. The trial court granted the relief sought. Two years later, the court made an order amending its original decree by striking therefrom all reference to the San Francisco Furniture Dealers Association, thereby making the injunction applicable to the plaintiff only. Plaintiff Jellen, as secretary and representative of the Association and its members, appealed. The respondent urged that the members of the association in question, other than Jellen, were improperly joined as parties plaintiff, and that the court exceeded its jurisdiction in granting them a permanent injunction. The court, in reversing the order appealed from, held that the plaintiff came squarely within that provision of section 382 which permits a party to sue for the benefit of many where the question is one of a common or general interest of many persons.

If a voluntary association were held to be a proper party plaintiff, then plaintiff corporation, which has the right to sue or be sued (Corp.Code, § 9501), should be a proper party plaintiff.

Parker v. Bowron (1953) 40 Cal.2d 344, 254 P.2d 6, was a mandamus proceeding to compel city officials to fix a salary for all city employees in certain classification at least equal to prevailing scale for similar employment in private industry. Parker sued individually and as a member and secretary-treasurer of the Council of Federated Municipal Crafts, a voluntary unincorporated association of unincorporated labor organizations. Under the then existing rule, an unincorporated association could not sue or be sued as an entity, and all such action had to be taken by or against the individual members. Parker was held to have no beneficial interest in the subject matter as there was no allegation that he was himself a city employee, and his right of representation was alleged to be his position as secretary-treasurer of an unincorporated association which claimed to have a membership consisting of city employees. Parker could not give himself standing to sue by purporting to represent a class of which he was not a member.

The court further held that even assuming the unions which were affiliated together in membership in the Council were the petitioners (the were not so alleged, Parker being the only petitioner), 'No facts are alleged which show any right or interest of the unions in the action sought to be commanded.' (P. 354, 254 P.2d p. 11.)

In Professional Fire Fighters, Inc. v. City of Los Angeles (1963), supra, 60 Cal.2d 276, 284, 32 Cal.Rptr. 830, 834, 384 P.2d 158, 162 (fn. 8), the court said, 'The Parker decision logically followed from the then existing rule that no an unincorporated association may not sue or...