CITY OF BEVERLY HILLS v. BRADY

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

CITY OF BEVERLY HILLS v. BRADY.

Civ. 16850.

Decided: April 25, 1949

Richard C. Waltz, City Atty. and Richard L. Sieg, Jr., Asst. City Atty., both of Beverly Hills, for appellant. Reed & Kirtland and Robert E. Moore, Jr., all of Los Angeles, for respondent.

From a judgment in favor of defendant after a trial before the court without a jury in an action to enjoin defendant from using his residence in the city of Beverly Hills for purposes prohibited by a zoning ordinance, plaintiff appeals.

Conceded Facts

Defendant, a duly licensed physician and surgeon, writes a syndicated column pertaining to health problems which appears in approximately 130 newspapers in the United States and Canada. In discussing a subject in his column defendant suggests that further information on the same topic may be obtained by writing to him for a pamphlet and enclosing a specified sum varying from 10 to 25 cents. The pamphlet is not otherwise advertised.

Defendant's residence is in zone R–1.5, Residential, which according to Ordinance 443 of the Beverly Hills zoning ordinance provides in part that no premises within any of said zones in the City of Beverly Hills shall be used “for any purpose * other than * a private, one-family residence or dwelling;” and further, “No premises within any of said zones in the City of Beverly Hills shall be used for any purpose * other than a purpose for which a building is permitted in the zone in which said premises is located.” Defendant has a room above his garage equipped for storing printed literature, where he employs one, and sometimes two, secretaries who take dictation, transcribe his syndicated column and correspondence and devote the balance of their time to the addressing of envelopes and enclosing pamphlets requested by readers of his column. There is an average of one full mail bag of letters received each day, and about the same amount sent out. Approximately 150,000 pamphlets are mailed each year. Some are sent gratuitously. However, he has received as much as $16,400 to cover the cost of printing and mailing which does not include his overhead.

Question

Is defendant using his residence for a purpose other than a private one-family residence or dwelling in violation of the provisions of the municipal ordinance mentioned above?

This question must be answered in the affirmative. The ordinance here in question prohibits the use of residential property in the zone where defendant's residence is located for any purpose other than a private one-family residence or dwelling. Such an ordinance is valid. (Acker v. Baldwin, 18 Cal.2d 341, 344 et seq., 115 P.2d 455.)

In the present case it is obvious from the conceded facts that the activity in which defendant is engaged in his residence is one whereby he is making use of his premises for a purpose other than a private one-family residence or dwelling. It therefore follows that he has violated a valid city zoning ordinance and plaintiff is entitled to the relief which it sought.

Paragraphs 17 and 18 of the amended complaint set forth two sections of ordinance 443, to wit, section 1 of Article IV which prohibits the use of residential property for any purpose other than a one-family residence or dwelling, a public school, library or playground; section 10 of Article VI which forbids a person “to establish or conduct any business in zones R–1, R–1.5 and R–4 which is not in compliance with all of the provisions of this ordinance *.” Defendant, by failure to deny, admitted the truth of both allegations and the court made findings accordingly. It was alleged, admitted and found that the ordinance inhibits the use of any premises within the same zone for any purpose other than that for which a building is permitted in the zone; that no land used or occupied “shall be used or changed in use until a certificate of occupancy shall have been issued *”; that no certificate of occupancy has been issued to defendant permitting the use of any part of his premises for any business purpose. No language is to be found in the ordinance which would allow the occupant of a residence within the zone to exercise a hobby such as the daily rehearsal of his orchestra, or a continuous conducting of odoriferous chemical experiments for the mere delight or edification of his friends and visitors. Under defendant's interpretation of the ordinance a resident of the zone might amuse himself nightly by entertaining groups of Voodoo worshippers so long as such entertainment would not be “business” as defined by the ordinance. Such illustrations demonstrate the fallacy of contending that doing business is the only means by which the zoning ordinance can be breached.

Defendant having admitted acts which under a reasonable interpretation constitute a use of his premises for a purpose contrary to the ordinance, plaintiff became entitled to judgment without regard to whether defendant was or was not engaged in a business.

City of Rochester v. Rochester Girls Home, Sup., 194 N.Y.S. 236, Gardner v. Trustees of Main St. M.E. Church, 244 N.W. 667; 217 Iowa 1390, 250 N.W. 740, and Murdock v. City of Norwood, Ohio Com.Pl., 67 N.E.2d 867, and similar cases cited by defendant wherein the meaning of the word “business” is defined or illustrated are inapplicable to the instant controversy for the reason that it is unnecessary for us to determine whether defendant was engaged in a business or profession since he was violating section 1 of Article IV of the ordinance, not because he was engaging in a business, but for the reason that he was using his premises for a purpose other than a private one-family residence or dwelling. The authorities cited by defendant defining the term “business” are not pertinent for the reason that the ordinance itself contains the definition to be used in interpreting the ordinance.

The judgment is reversed with directions to the trial court to enter a judgment in favor of plaintiff as prayed.

I dissent.

It is obvious from an examination of the record on appeal that the majority of this court have fallen into three errors: (1) Their opinion is based on a theory never contemplated by either party to the action, never presented to the trial court either by the pleadings or by the argument, and never considered by that court. Plaintiff's concept from the commencement of the action has been that defendant's violation of the ordinance consisted in his having been engaged in business within a residential zone and not, as held by the majority of this court, that he has violated the ordinance merely by doing some act in a one-family dwelling other than residing there. (2) The majority have rested their decision on two sentences selected from the zoning ordinance without considering the ordinance as a whole, without coordinating and harmonizing those sentences with other substantive portions of the ordinance, and without giving effect to the overall purpose of the legislative body of the city in enacting the ordinance. (3) The record does not show that defendant has violated the ordinance by the manner in which he has conducted his affairs, whether his acts be considered with reference to the entire ordinance or the detached portions quoted in the majority opinion.

The purpose and intent of a municipal ordinance cannot be determined by extracting one or two fragmentary clauses or isolated sentences and construing them unconnected with other equally important, substantial and significant provisions on the same subject. The entire legislative act, or as much of it as is available from the pleadings and the evidence, must be given consideration.

The following portions of the extant zoning ordinance are pleaded by plaintiff as purporting to affect the right of defendant to continue the conduct of his affairs in the same manner as he has been conducting them without hindrance or remonstrance since February, 1932, more than 17 years:

(1) The erection or use of any building in Zone R–1.5 is prohibited “for any purpose other than a * private one-family residence or dwelling”.

(2) “No person * shall establish or conduct any business outside of Zones C–3 and M–2, * and it shall be unlawful for any person * to establish or conduct any business” in Zone R–1.5 “which is not in compliance with all of the provisions of this ordinance and any other ordinance or ordinances now in effect, or which shall hereinafter be enacted * regulating the establishing and conducting of any such business”.

(3) “No premises within any of said zones * shall be used for any purpose except a public playground, other than a purpose for which a building is permitted in the zone in which said premises is located *.”

(4) For the purpose of this ordinance, “The word ‘business' and the word ‘commerce’ mean the purchase, sale or other transaction involving the handling or disposition of any article, substance or commodity for profit or livelihood, or the ownership or management of office buildings, offices, recreational or amusement enterprises.”

(5) “No land shall be used or occupied and no building hereafter structurally altered or erected shall be used or changed in use until a certificate of occupancy shall have been issued by the Building Inspector, stating the use of the building.”

The amended complaint alleges that no certificate of occupancy has been issued to defendant permitting the use of his premises for any business purpose, and that at the time of the adoption of the ordinance “no business building had been erected in the area immediately surrounding the property of defendant * and no property in said area was being or had been used for any business use except, perhaps, the use of defendant's property hereinafter stated and complained of.”

The amended complaint further alleges, substantially as related in the majority opinion, the manner in which defendant prepares his syndicated column and sends out his pamphlets by mail and then avers “that the conducting of the above described business by defendant in said residential area in violation of said zoning restrictions and provisions tends to become a precedent for other violations” and if permitted to continue will result in opening the way for further intrusion of business therein, “and if such business encroachment is not prevented” will result in breaking down residential zoning in the city.

The prayer is that an injunction issue restraining defendant “from further using the above described premises for carrying on the business hereinabove described.” (Emphasis added in all quoted matter.)

It is manifest from the pleaded portions of the ordinance that it was intended to prohibit business in residential zones and it is likewise manifest from the allegations of the amended complaint that plaintiff's position is and has been at all times since the commencement of the action that defendant was conducting a business in violation of the ordinance.

The record shows that the action was submitted to the superior court on briefs, after which the trial judge filed a memorandum opinion in which he defined the position taken by the parties in that court as follows: “The sole contention of plaintiff is that the offer in the syndicated articles of a pamphlet to be distributed to the reader for a money consideration constitutes doing business within the area of Beverly Hills zoned for single family residences, and that the nature of defendant's business is that of a publishing business.” The opinion is a part of the record on appeal. (Rule 5(a) and (b), 22 Cal.2d 4.) Plaintiff has not questioned the correctness of the foregoing statement of the trial judge and does not now contend that any other issue was tendered in the court below. This court must accept the record and act upon it as we find it without fabricating new questions that no one has presented or argued in either court.

In its findings of fact the court found that defendant was not and is not conducting or engaged in a business within the meaning of the provisions of the zoning ordinance; that the manner in which he is carrying on his affairs at his residence will not be cited by other persons in defense of other alleged violations of the ordinance and will not result in breaking down or voiding zoning restrictions.

The briefs of both parties in this court are based upon one question only, to wit, whether defendant is or is not carrying on a business in violation of the prohibitory provisions of the ordinance. In this connection plaintiff states in its brief that defendant's principal means of livelihood is the sale of his syndicated health column which, says plaintiff, is “admittedly not a violation of the zoning ordinance,” and then proceeds to argue that the receipt of letters and the transmission of pamphlets by mail is the carrying on of business.

Since the amended complaint is based solely on allegations that defendant is conducting a business at his residence and the only relief sought by the prayer is that he be enjoined from continuing to carry on such business, this court is confined in its consideration of the appeal to a determination of the question whether defendant is doing business as that term is defined in the ordinance. Plaintiff's concession that the preparation and sale of defendant's syndicated column is not prohibited by the ordinance narrows its argument to the contention that defendant's receipt of requests for pamphlets and his sending them by mail constitute doing business.

The definition of “business” for the purpose of the ordinance is found in paragraph (4) of the quotations above set forth. Defendant's acts do not constitute the purchase or sale of any commodity, nor are they transactions involving the handling of any article or substance “for profit or livelihood.” Since the amounts received from persons requesting pamphlets cover the bare cost of printing and mailing but are not sufficient to pay defendant's overhead expense, he does not derive a profit therefrom nor are his receipts a part of his livelihood. He expends for such purpose more than he receives.

Since “business” is defined in the ordinance the term need be considered only so far as to show that nothing unusual is intended by the definition but that the orthodox meaning found in dictionaries and decisions is adopted. “Profit” or “livelihood” are elements in practically all definitions. “Business” is defined as “That which busies, or engages time, attention, or labor, as a principal serious concern or interest. Specif.: a. Constant employment; regular occupation; work; * b. Any particular occupation or employment habitually engaged in, esp. for livelihood or gain.” Webster's New Int. Dict., 2d Ed., 1948, p. 362.

An occupation will not be excluded from the classification of business merely because it results in loss instead of profit, but it is essential that livelihood or profit be at least one of the purposes of the occupation in order to bring it within the accepted definition of the word. Deering v. Blair, 57 App.D.C. 367, 23 F.2d 975, 976; Chaloner v. Helvering, 63 App.D.C. 85, 69 F.2d 571, 572 and cases cited; Snow v. Johnston, 197 Ga. 146, 28 S.E.2d 270, 277; State v. Louisiana Baking Corp., La.App., 153 So. 41, 43; Flint v. Stone Tracy Co., 220 U.S. 107, 171, 31 S.Ct. 342, 55 L.Ed. 389, 421. It denotes an employment or occupation in which a person is engaged to procure a living. Goddard v. Chaffee, 2 Allen 395, 79 Am.Dec. 796; 84 Mass. 395, 79 Am.Dec. 796; Allen v. Commonwealth, 188 Mass. 59, 74 N.E. 287, 288, 69 A.L.R. 599. The idea of livelihood or profit is associated with the meaning of the term “business” and an enterprise not conducted as a livelihood or for profit does not come within the ordinary meaning of that term. City of Rochester v. Rochester Girls' Home, Sup., 194 N.Y.S. 236, 237; Francisco v. Oakland Golf Club, 193 App.Div. 573, 185 N.Y.S. 97, 98.

Since defendant did not engage in “business” within the definition in the ordinance and in the general legal acceptation of the word, the judgment in favor of defendant should be affirmed and the decision of this court should not be made to turn upon a matter not contained in the pleadings or argued either before the trial court or this court.

Turning now from the issue made by the pleadings to the point on which the majority of this court have erroneously based their opinion, it is manifest that defendant's premises (1) is not being used for any purpose other than a private one-family residence, or (2) for a purpose other than that for which a building is permitted in the zone in which his premises is located.

The receipt of mail and the transmission of pamphlets by defendant is clearly not a violation of the ordinance. Such activities are merely incidental and collateral to the preparation of his syndicated column, which plaintiff freely admits is not a violation of the zoning ordinance. Such activities have no relation to the health, safety, morals or general welfare of the community. Unless a zoning ordinance has reasonable reference to one or more of such matters it cannot be sustained since it would deprive the owners of real property of a valuable right incident to ownership. Pacific Palisades Ass'n v. Huntington Beach, 196 Cal. 211, 216, 237 P. 538, 40 A.L.R. 782; People v. Hawley, 207 Cal. 395, 411, 279 P. 136. The distribution of pamphlets from which defendant receives no profit and which do not enter into the production of his livelihood, is not only not a business but is an innocuous activity the enjoining of which would be an unreasonable and unlawful restraint upon defendant's liberty of action.

The fantastic examples of what may not be done in a zone limited to one-family residences, such as orchestra rehearsals, conducting chemical experiments, and Voodoo entertainments, add nothing whatsoever to the decision of this action. All such acts would be obnoxious and would be prohibited in any residential zone, whether set apart for single or multiple dwellings or for apartment houses and hotels. No one has ever contended, adopting the words of the majority, “that doing business is the only means by which the zoning ordinance can be breached” and the only purpose served by such grotesque illustrations is to divert attention from the sole issue raised or discussed by the litigants, to wit, whether defendant is transacting business—a question which the majority does not discuss at all.

If the arbitrary and ridiculously narrow dogma of the majority opinion should prevail a person could do but little else than eat and sleep in a one-family residence. The majority would forbid an author to dictate to his secretary (an act which plaintiff admits is permissible), a concert singer to rehearse his music, and one with a hobby such as woodworking to construct a chair or a table for use in his own home because, forsooth, each of such persons would be making use of his premises for a purpose other than a one-family residence. A mere statement of such a result which necessarily flows from the conclusion reached by the majority demonstrates its palpable erroneousness.

The judgment should be affirmed.

On Petition for Rehearing.

This action was commenced and presumptively tried on the theory that specified acts of the defendant constituted a violation of a valid city ordinance. The admitted activities of the defendant disclosed a clear violation of that ordinance. Because the arguments in the trial court degenerated into a consideration of whether defendant was “doing business” there is no reason for digressing from the primary contention that he was violating the ordinance. Certain activities were prohibited regardless of whether they warranted the label “business” and “doing business” was not the only manner in which the ordinance could be violated.

Thus, rather than depart from the theory on which the action was commenced, this court adheres to that theory in holding that the acts complained of and admitted constitute a violation of the ordinance.

Of course, as said by Mr. Justice Wilson, in People v. O'Neill, 78 Cal.App.2d 888, 892, 179 P.2d 10, 12, “We cannot entertain appellant's assertions of irregularity that do not appear in the transcript of the trial. People v. Lytle, 34 Cal.App. 360, 361, 167 P. 552. “And again in Estate of Tubbs, 82 Cal.App.2d 305, 307, 186 P.2d 7, 9, “Matters not in the record cannot be considered on appeal.” Hence we may not consider briefs of counsel filed in the trial court which were never made a part of the record in this court. Such briefs attached to the petition for rehearing are dehors the record.

Plaintiff's petition for a rehearing is predicated upon the fallacious arguments set forth in the dissenting opinion which utterly disregards the elementary rule of jurisprudence of this state so aptly stated in Sears v. Rule, 27 Cal.2d 131, 140, 163 P.2d 443, 448, by Mr. Chief Justice Gibson thus: “It is, of course, immaterial that the theory upon which the judgment may be affirmed is not identical with that relied upon by plaintiffs or by the trial court, since plaintiffs are required only to plead and prove facts sufficient to justify relief, and the trial court's judgment must be affirmed if the findings, supported by the evidence, are sufficient to warrant the relief granted on any legal theory.”

The rehearing is denied.

I dissent from the order denying the petition for rehearing.

The arguments in the trial court did not digress from the theory on which the case was tried in that court. Since the appeal is on the judgment roll and the evidence is not before this court the only theory of the trial that can be presumed must be gleaned from the pleadings, the findings of fact and the opinion of the trial judge, which is before us by reason of rule 5(a) and (b), Rules on Appeal, 22 Cal.2d 4.

From these documents it is clear that the only question in the trial court was whether defendant was carrying on a business in violation of the ordinance, not that some specified acts which he had done were prohibited by the ordinance. The amended complaint alleges that at the time of the adoption of the zoning ordinance “no business building” had been erected in the area immediately surrounding defendant's property and no property in said area had been used “for any business use, except, perhaps, the use of defendant's property hereinafter stated and complained of. That the exact date when defendant began the use of his said residence for business purposes” is unknown to plaintiff. The amended complaint further alleges that defendant is conducting a “business” in violation of the ordinance, and the prayer is that he be enjoined from carrying on the “business.” The trial judge's opinion states “the sole contention of plaintiff is that” defendant's acts described in the amended complaint constitute doing business. The court found that defendant was not “conducting or engaged in a business” within the meaning of the zoning ordinance. The findings recite that the court did not make any findings with respect to certain issues for the reason that the same were unnecessary by virtue of the court's finding that the defendant was not conducting or engaged in a business.

The majority have gone contrary to a rule to which each member of this court is definitely and unqualifiedly committed, namely, that a reviewing court will not consider a theory of a case different from that urged in the trial court and which is presented for the first time on appeal. Title Ins. & Tr. Co. v. Graham, 44 Cal.App.2d 660, 662, 112 P.2d 935; Grimes v. Nicholson, 71 Cal.App.2d 538, 543, 162 P.2d 934; Priebe v. Sinclair, 90 Cal.App.2d 79, 202 P.2d 577, 582; Ayres v. City Council, Cal.App., 191 P.2d 546, 555. It is axiomatic that an appellate court is merely a court of review and cannot determine issues not offered in the trial court. Py v. Pleitner, 70 Cal.App.2d 576, 580, 161 P.2d 393. When a case is tried on a certain definite theory the record will be reviewed on appeal accordingly, Perry v. Paladini, Inc., 89 Cal.App. 275, 288, 264 P. 580, and the parties will not be allowed to say for the first time on appeal that there was an issue different from that presented to the trial court. Grimes v. Nicholson, supra, and cases cited, Drullinger v. Erskine, 71 Cal.App.2d 492, 500, 163 P.2d 48. The ground on which the former decision in this action was based, as pointed out in my former dissent, supra, was not presented to the trial court.

Under rule 52 of the Rules on Appeal, 22 Cal.2d 33, a reviewing court cannot presume that any procedure was followed or that any action was taken that is not contained in the record on appeal. The law is settled that by reason of that rule it will be presumed that the record includes all matters material to a determination of the points on appeal and that the record is complete. Alkus v. Johnson–Pacific Co., 80 Cal.App.2d 1, 9 et seq., 181 P.2d 72; Palpar, Inc., v. Thayer, 82 Cal.App.2d 578, 582–583, 186 P.2d 748; same case 83 Cal.App.2d 809, 811, 189 P.2d 752; Estate of Pierce, 32 Cal.2d 265, 274, 196 P.2d 1, 7; Kuhn v. Ferry and Hensler, 87 Cal.App.2d 812, 197 P.2d 792, 794; Gardner v. Shreve, 89 Cal.App.2d 804, 202 P.2d 322, 325.

In defendant's petition for rehearing he has furnished us with copies of the briefs filed in the superior court. They fully justify my previous dissent in that they show that the majority opinion was based on a point not pleaded before the trial court. Plaintiff's opening brief is introduced thus: “This is an action to enjoin the defendant from using his residence in the City of Beverly Hills for a certain business purpose.” In the course of its argument plaintiff said: “* the sole contention is that the offer contained in the syndicated article that a pamphlet will be sent upon receipt of a specified sum of money, and the mailing of the pamphlet upon receipt of that sum of money, constitutes ‘doing business,’ and that the defendant is conducting a publishing business in a single residence area zoned against business.” (Emphasis added.) The entire brief is with reference to the subject of defendant's doing business and no other point is suggested. Defendant's reply brief refers only to the definitions of “business” and to what constitutes doing business. Plaintiff's final brief closes with this sentence: “Therefore, the defendant should be enjoined from conducting a business from his residence by soliciting for the sale of, and selling, pamphlets from his residence.”

The general rule is that alleged facts not in the record will not be considered on appeal. Nevertheless, a statement of fact made in a brief and not denied by the opposing party will be accepted as stating the fact correctly. Standard Iron Works v. Maryland Casualty Co., 56 Cal.App. 600, 601, 206 P. 136; De Mirjian v. Lutinsky, 77 Cal.App.2d 915, 916, 177 P.2d 50; See also Zeigler v. Bonnell, 52 Cal.App.2d 217, 218, 126 P.2d 118; Tarvin v. Davey, 56 Cal.App.2d 846, 848, 133 P.2d 844; Frank Graves etc. Co. v. Orange County B. & M. Corp., 111 Cal.App. 475, 477, 295 P. 859; Pendergrass v. Axx, 111 Cal.App. 478, 479, 295 P. 896.

The briefs attached to the petition for rehearing are not in the record on appeal, but in plaintiff's reply to petition for rehearing it is conceded that they were filed and constituted the arguments in the trial court.

What is said in Sears v. Rule, 27 Cal.2d 131, 163 P.2d 443, is not applicable here. The evidence introduced at the trial in the instant case is not before use for consideration in reference to any claimed “theory” and plaintiff-appellant does not contend that the findings are not supported by the evidence. Therefore, as above stated, the only theory upon which this court can consider the appeal is that which is shown by the amended complaint and findings. People v. O'Neill, 78 Cal.App.2d 888, 179 P.2d 10, is not in point. The question there raised was that the transcript was not correct, a point not in issue in the instant case.

The petition for rehearing should be granted and the judgment should be affirmed.

McCOMB, Justice.

MOORE, P.J., concurs.