Tudor v. City of Rialto
Decision Date | 05 November 1958 |
Citation | 164 Cal.App.2d 807,331 P.2d 122 |
Court | California Court of Appeals |
Parties | John J. TUDOR et al., Plaintiffs and Appellants, v. CITY OF RIALTO, etc., et al., Defendants and Respondents. Civ. 5727. |
Rager & Olio, Henry F. Rager, Fontana, for appellants.
William Mackenzie Brown, Los Angeles, Ward Mathews, San Bernardino, Wellborn, Barrett & Rodi, Frank C. Hubbard, Los Angeles, for respondents.
The lands of plaintiffs herein were subjected by the defendant city of Rialto to the levy of certain assessments on account of sewer system improvements caused to be installed by said defendant city. The other defendants were officers or employees of said defendant city or contractors doing the work of installation of said sewer. Plaintiffs filed their complaint praying for annulment or correction of the assessments and for injunctive relief.
The original complaint, after identifying the legal relationship of the parties to this cause, alleges the commencement and pursuance by defendants of proceedings under the 'Improvement Act of 1911', Streets and Highways Code, § 5000 et seq. for the purpose of accomplishing the installation of certain sewer improvements in and for said city. Plaintiffs make no complaint as to any part of such proceedings except that part relating to the propriety and fairness of the levy of assessments.
As to the levy of assessments and that portion of the proceedings (17th, 18th and 19th of July, 1956) looking toward such levy the plaintiffs allege in their original complaint that they filed protests with the city council of said city. Plaintiffs further allege that they were denied a full, fair and complete hearing in that:
1. (a) Plaintiffs requested subpoenas for witnesses and were refused, resulting in plaintiffs' inability to present testimony;
(b) Defendants failed to provide adequate space for the hearings, so that plaintiffs could not be present at all times;
(c) Defendants held hearings at late and unusual hours, so that plaintiffs could not present witnesses;
(d) Plaintiffs requested additional time to obtain evidence and witnesses, which was refused.
2. That certain members of said council did not hear all the evidence presented in that:
(a) July 17, 1956 defendant Harold Hudson was absent about forty-five minutes;
(b) July 18th defendant F. Earl Thompson was absent during all testimony;
(c) July 19th defendant Glenn R. Johnson was absent during all testimony.
3. July 19th during hearing a recess was declared, the councilmen present and the city engineers, attorneys and clerk retired to another room, closed the door and remained for forty-five minutes; upon reconvening councilmen stated they had decided what action to take and immediately introduced, adopted and passed a resolution confirming said assessments.
4. That defendant council prejudged the entire matter in that:
(a) At the time the hearings were commenced the minutes approving the assessments had already been typed;
(b) After plaintiffs had spent approximately fifteen minutes introducing evidence with respect to said assessments, protests and appeals, and estimated benefits, the mayor stated he and probably the others felt they had heard enough testimony and asked if a vote should be taken;
(c) Defendant councilmen took testimony secretly and considered evidence unknown to plaintiffs.
5. That defendants took no evidence itself in an open and public hearing respecting estimated benefits accruing to lands of plaintiffs by virtue of said work and improvement. Next plaintiffs claim that no benefit can accrue to plaintiffs' lands in that none of said land can be served by any sewer line constructed under this improvement. They then complain that there is fraud in said proceedings because the council pursued incorrect procedure; because the health officer made certain untrue statements known by defendants to be untrue.
Thereafter, in the concluding paragraphs, plaintiffs alleged the confirmation of the assessment, the proposed issuance of bonds, the prospective lien thereon on lands of plaintiffs, the description of the lands of plaintiffs, the assessment numbers, the amounts of the assessment against each, and the prayer for nullification of the assessments and an injunction against the collection of assessments and issuance of bonds.
A general and special demurrer by the defendants to plaintiffs' complaint was sustained with leave to amend, and thereafter an amended complaint was filed which amended complaint was in substantially the same language as the original complaint, with the exception that the allegations of the original complaint respecting hearings at late and unusual hours, secret meeting, secret hearing of evidence, prejudging, 'after said plaintiffs had spent approximately fifteen minutes introducing evidence with respect to said assessments, protests and appeals, and estimated benefits to be derived from said work and improvement,' and the allegations of fraud were all completely dropped. To this amended complaint defendants interposed substantially the same general and special demurrer and the court sustained the demurrer without leave to amend.
It will be seen from the foregoing that the gravamen of plaintiffs' complaint lies in their contention that their lands could get no benefit from the sewers here involved, and that they were not given a fair hearing on their protests and their attempt to convince the council that the proposed assessments were excessive.
There are numerous details of this complaint and it is necessary to consider each one separately.
Plaintiffs' first complaint is that the city council refused to issue subpoenas. From the wording of plaintiffs' complaint we can only assume that this refusal took place at the time of the protest hearings. Plaintiffs allege no facts to show that something unusual occurred to warrant the issuance of subpoenas at such a late date as the very day of the hearing; nothing is alleged to show what, if any, material evidence was lost to plaintiffs by such refusal nor how plaintiffs were injured by such loss. In the absence of some special showing why plaintiffs had not applied for such subpoenas seasonably before the time of hearing, plus a showing of injury by reason of inability to produce such material evidence through lack of such subpoenas, the complaint would in our opinion be insufficient. Western Pipe & Steel Co. of California v. Industrial Acc. Comm., 194 Cal. 379, 382(6), 228 P. 859.
The original complaint alleges facts sufficient to show that plaintiffs were in fact heard in support of their protests for about fifteen minutes. Since plaintiffs' amended complaint does not either explain that this allegation was put in by error or misunderstanding or mistake, it must be taken as a fact pleaded by plaintiffs for demurrer purposes. 'If any verified pleading contains an allegation which renders a complaint vulnerable, the defect cannot be cured simply by omitting the allegation, without explanation, in a later pleading.' Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 716(2), 128 P.2d 522, 524, 141 A.L.R. 1358.
Thus it appears affirmatively that plaintiffs did in fact appear before the council and were in fact heard. The complaint does not directly plead that at any time plaintiffs offered other...
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