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


Civ. 16390.

Decided: December 09, 1948

Allard, Brownsberger & Shelton, of Pomona, Roy A. Linn, of Los Angeles, and James G. Whyte, of Claremont, for appellant.

Appellant fervently assigns four reasons why a rehearing should be granted and a different judgment entered. A studied consideration thereof readily develops the unsoundness of such contention.

It is urged that the majority opinion herein ignored the rule that reviewing courts will nullify the decision of a city council which is arbitrary or a gross abuse of discretion, citing People v. City of Los Angeles, 62 Cal.App. 781, 218 P. 63; People v. City of San Rafael, 95 Cal.App. 733, 739, 273 P. 138; People v. City of Oakland, 96 Cal.App. 488, 496, 274 P. 438. Such contention is wholly gratuitous. While recognizing the existence of such rule and its correct announcement by the cited authorities this court deems itself bound by the universal doctrine of appellate procedure which precludes it from reversing a trial court's conclusions of law unless they are shown to be erroneous. In the instant action the court had concluded that ‘Commercial street * * * has been duly and lawfully closed by the duly constituted authorities of the city Pomona in the valid exercise of the discretion conferred upon them by law.’ This conclusion logically followed the finding that ‘the members of the council * * * acted in good faith, and without fraud, collusion or connivance . . . or any abuse of discretion.’ Appellant asserts that there is no evidence that the council had not abused its discretion. That is immaterial. The issue before the trial court was: Did the council abuse its discretion? The finding was in the negative. Appellant has the burden now to demonstrate that sufficient evidence was produced before the trial court to require a finding of the city council's abuse of discretion. This it has utterly failed to do. Consequently, such attack upon the finding of the council's good faith must fail. This conclusion conforms with appellant's cited decisions, supra. In each of them the findings and conclusions were sanctified by the affirmation of the judgments therein.

The second contention is that ‘the vacating of a public street in order to give the vacated portion to a private corporation for its own use is not in the public interest.’ While this is a correct statement of abstract law, it is entirely irrelevant to the instant factual situation. Inasmuch as the trial court found that the vacating of the street was ‘solely for and in the interest of the public necessity, interest and convenience,’ appellant's statement that the act of the council was ‘in order to benefit a private corporation,’ is a conclusion without either a major or a minor premise, and is immaterial to the considerations on appeal.

The third contention is that ‘there is no substantial evidence to support either the finding of the trial court that ‘the elimination of traffic over the portion of the street was and is promotive of the public safety and welfare’ or that the vacating and abandoning of said portion of the street ‘was and is required by the public interest and convenience.’' The majority opinion amply demonstrates that such findings are supported by the testimony of responsible witnesses. The findings attacked by Mr. Justice Wilson in his dissenting opinion as not being supported were a recital of the findings of the city council, whereas the findings approved by the majority opinion were those which determined that the city council did not act arbitrarily or discriminatorily. Such were the only findings essential to an approval of the council's action and are the only findings reviewable on this appeal.

Finally, contrary to appellant's contention, the majority opinion herein does not overthrow or disregard People v. City of Los Angeles, 62 Cal.App. 781, 218 P. 63, 65. It is readily distinguishable from the case at bar. In addition to the features of that decision noted in the majority opinion, other distinctions are readily observed. There the trial court had found that the public interest, necessity, and convenience were not served by closing the street; here the court found that such interests were promoted. There ‘according to the evidence and findings * * * there was no such thing as the public interest or convenience of the public taken into consideration by the city council.’ Here the council acted ‘solely’ in the public interest. There the city engineer recommended that the street be not vacated; here the engineer recommended that the street be closed. There the council acted adversely to his recommendations; here the council followed the recommendations. There the trial court found against the validity of the council's act; here the trial court found in favor of the validity of the council's decision. There the ‘determination by the city council * * * was made before any protest was even filed, and, of necessity, before any hearing was had thereon’; here protests were filed and a hearing thereon was held before the council's action. There the ‘ordinance of vacation of the street contained no declaration or provision, either in substance or effect that the public interest or convenience of the city of Los Angeles, or of the inhabitants thereof, either required or justified the vacation of the street’; here the resolution of the city council expressly contained such and similar provisions and declarations.

The petition for rehearing is denied.

I dissent from the order denying a rehearing and adhere to my dissenting opinion filed upon the original submission of this case. The opinion of the majority of this court denying a hearing does no more than reaffirm and emphasize their errors in their opinion sustaining the judgment of the superior court. The vice of both opinions is that the majority have accepted the findings of the trial court as being based on evidence of facts, whereas, as pointed out in my dissent, the evidence of the city officials did not assert statements of fact but consisted entirely of opinions which had no facts for their support. There are no facts that sustain the finding that the city council did not abuse its discretion in ordering the closing of one block of a street which is a mile in length. There is not only no substantial evidence but there is no evidence at all to sustain the findings. The members of the council, when called into court to justify their action, expressed their opinions that the closing of the block would expand the industries of the city, but the record may be searched in vain for a single statement of fact upon which the court could base a finding to that effect. Nevertheless, the trial court and the majority of this court have accepted those opinions as evidence of the fact that the closing of the street will permit the establishing of more and greater manufacturing industries, notwithstanding the uncontradicted evidence that all property within several blocks of the land donated to Fairbanks, Morse & Company is already occupied by industrial plants. There was no evidence that there was even a remote prospect that any new industry would be located at any point in Pomona as a result of closing the street, or otherwise.

The vacating of a public street in order to give it to a private corporation is not in the public interest, as pointed out in my former dissenting opinion. The majority agree with this statement as one ‘of abstract law’ but say it is irrelevant to this cause because, forsooth, the trial court found that the closing of the street was solely in the public interest. The majority did not in its previous opinion and does not now point to any evidence in support of the finding, and there is none. The evidence is that the members of the public who previously traveled directly along the street are now compelled to go around the block, making four right angle turns in so doing. All members of this court have repeatedly joined in opinions reversing judgments because they were not sustained by evidence of facts and because the trial court had erroneously received opinion evidence. Why should this case be an exception to the rule?

The statement in the majority opinion that the findings attacked in my dissenting opinion were a recital of findings of the city council and that the findings approved by the majority were those of the court demonstrates that the majority have not read the dissenting opinion or have missed the point. I made no attack on the findings of the council but made it clear that my objections were to the findings of the court. In the second paragraph of my opinion I stated the findings of the trial court that were not supported by the evidence. This was followed by a discussion of both the findings of the court and the findings of the city council as stated in its resolution and the testimony given in court by members of that body. Both their resolution and their evidence were shown to have been expressions of opinion with a total absence of facts. I made no attack on the findings of the council for the obvious reason that appellants' argument was addressed to the findings of the court.

The majority now vainly attempt to negate the fact, as pointed out in my dissent, that their opinion disregards and disavows in its entirety the decision in People v. Los Angeles, 62 Cal.App. 781, 218 P. 63. Their effort to distinguish this case from the Los Angeles case is based on the fact that in the instant case the findings of the trial court sustained the action of the city council while in the Los Angeles case the court found in favor of the plaintiff. The majority have not taken the time to point out in what manner this difference in the result of the actions affects the law as announced in the Los Angeles case. The facts in the two cases are parallel. It would be difficult for any court to formulate an argument sustaining opposing statements of law on identical facts. In each case the street was vacated in order that the corporation owning property on both sides might have the ownership and use of it for private purposes and personal gain; the announced purpose of closing the street was to promote industry in the city as a whole and to encourage the maintenance and building of industry for the benefit of the city and its inhabitants; the city officials gave their opinions to that effect; the street had been improved and had been used for public travel; the public was excluded and the corporation was given uninterrupted possession. The original opinion of the majority and their opinion denying a rehearing are strangely devoid of any attempt to reconcile their statements of law with those in the Los Angeles case, yet they solemnly announce that they do not disagree with the decision in that case and disavow their intent to ‘overthrow or disregard’ it.

In both of their opinions the majority have failed to distinguish between motive and purpose. The difference is important in a case of this character. Their discussions have revolved around the motives of the city council and have ignored the purpose of the abandonment proceedings. While the motives may have been good yet if the purpose was an abuse of discretion or if it redounded against the public interest, as is the case in the instant proceeding, the action of the council should be set aside. People v. Los Angeles, 62 Cal.App. 781, 787, 789, 218 P. 63. I pointed out in my dissent that the cases relied on by the majority did not distinguish between the motives of the city officials and the purpose of the abandonment proceedings and that they were so factually different from the instant case that they did not sustain the majority opinion. If there be any advantage to the public from the vacating of a street it must come from the vacation itself and not from any future use of the vacated property. People v. San Rafael, 95 Cal.App. 733, 740, 273 P. 138; People v. Los Angeles, supra, 62 Cal.App. at page 789, 218 P. 63; Horton v. Williams, 99 Mich. 423, 58 N.W. 369.

Since the result of the abandonment proceedings is to create two deadend streets where one through street existed previously, it strains one's credulity to accept the court's finding that the public interest is served by the vacation proceedings.

The petition for rehearing should be granted and the judgment should be reversed with directions to enter judgment for plaintiff.

MOORE, Presiding Justice.

McCOMB, J., concurs.