Skip to main content


Reset A A Font size: Print

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


Civ. 14703.

Decided: December 14, 1951

Gardiner Johnson, Roy D. Reese and Thomas E. Stanton, Jr., all of San Francisco, for appellant. Edmund G. Brown, Atty. Gen., J. Albert Hutchinson, Deputy Atty. Gen., for respondents.

The plaintiff in an action for declaratory relief appeals from a judgment on the pleadings in favor of the defendants.

Plaintiff filed a complaint for declaratory relief against the Contractors' State License Board, the members of the Board, and its Registrar. It alleges in substance that the plaintiff is a corporation duly licensed by the respondent board as a general engineering contractor and is fully qualified to perform all types and classification of construction work defined in Section 7058 of the Business and Professions Code as ‘Specialty Contractor’ work; that appellant has neither applied for nor been issued any of the specialty contracting licenses referred to in Section 732 of the Rules and Regulations of the Contractors' State License Board; that by established usage and custom in the construction industry general engineering contractors necessarily perform all classifications of specialty work referred to in Section 732 of the Rules and Regulations of the defendant Board; that appellant asserts the right to bid for, contract for and perform all types and classifications of specialty work referred to in Section 732 of the Rules and Regulations of the respondent Board without the necessity of being licensed by the Board as a specialty contractor; that respondent Board asserts that appellant must obtain the respective specialty licenses required by Section 732 of said rules prior to bidding for, contracting for or performing any of the specialty work classified by said section; that respondent Board has advised and threatens to continue advising all State and local governmental officers, divisions, departments and agencies having to do with public work that the appellant has no legal right or authority to bid for any specialty construction work referred to in said Section 732 unless it is the holder of specialty licenses required by said section; that an actual controversy exists between appellant and respondent Board with respect to appellant's right to bid for, contract for and perform the specialty work above referred to without first obtaining any specialty licenses required by Section 732; and finally that appellant desires a declaration of its legal right and authority with relation to the power of the respondent Board to require appellant to obtain the aforementioned specialty licenses prior to engaging in any of the specialty work referred to.

After plaintiff's opening statement the defendants moved for a judgment on the pleadings which, after the submission of briefs, was granted. The trial court held that the complaint failed to state a cause of action on any justiciable controversy. The court further held that the issues presented by the complaint were abstract in character and the receipt of evidence in support of such issues would serve no useful purpose.

The only issue upon appeal is whether or not the complaint is sufficient to state a cause of action for declaratory relief and its sufficiency must be determined upon the same principles as if it had been attacked by a general demurrer. Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 157 P.2d 1. In this connection it should be noted that the complaint contains no allegations that the plaintiff desired to bid for, had any opportunity to bid for, or hand attempted to bid for any construction project which involved work in any of the specialty classifications as enumerated in Section 732 of the Rules and Regulations of respondent Board. Respondent takes the position first, that the complaint did not present any justiciable issue, and secondly, that there was no abuse of discretion on the part of the trial court in denying declaratory relief.

Code of Civil Procedure, Section 1060, provides for the bringing of an action for declaratory relief ‘in cases of actual controversy relating to the legal rights and duties of the respective parties'. ‘Actual controversy’ has been construed as meaning something more than a disagreement upon some abstract or academic question of law. It must be justiciable. The fact that plaintiff and defendants disagreed as to the law raised no justiciable controversy between them. The rule as announced in Monahan v. Dept. of Water & Power, 48 Cal.App.2d 746, 751, 120 P.2d 730, 732, is as follows: ‘In that connection we may well observe that not only must the controversy be a justiciable controversy, as distinguished from ‘a difference or dispute of a hypothetical or abstract character; from one that is academic or moot’, but it must be ‘definite and concrete, touching the legal relations of parties having adverse legal interests.’ Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 464, 81 L.Ed. 617, 108 A.L.R. 1000. In short, the controversy must be of a character which admits of specific and conclusive relief by judgment within the field of judicial determination, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. The judgment must decree, and not suggest, what the parties may or may not do.'

The principles controlling declaratory relief are again set forth and the cases are reviewed in Conroy v. Civil Service Commission, 75 Cal.App.2d 450, 171 P.2d 500. In the latter case this court quoted with approval the following statement from Borchard on Declaratory Judgments, Second Edition, 1941, as follows, 75 Cal.App.2d at pages 455–456, 171 P.2d at page 503: “It has already been observed that an action for declaratory judgment must exhibit all the usual conditions of an ordinary action, except that accomplished physical injury need not necessarily be alleged. It is sufficient if a dispute or controversy as to legal rights is shown, which, in the court's opinion, requires judicial determination—that is, in which the court is convinced that by adjudication a useful purpose will be served. The requisites of justiciability must be present.

“Not only must the plaintiff prove his tangible interest in obtaining a judgment, but the action must be adversary in character, that is, there must be a controversy between the plaintiff and a defendant, subject to the court's jurisdiction, having an interest in opposing his claim. Unless the parties have such conflicting interest, the case is likely to be characterized as one for an advisory opinion, and the controversy as academic, a mere difference of opinion or disagreement not involving their legal relations, and hence not justiciable.”

In Aetna Life Insurance Company v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, the court said: ‘It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ In the instant case there is nothing in the complaint to indicate that the plaintiff intended to engage in one of the classified phases of specialty construction. In effect he is seeking a declaration that in the event he should decide to do so some time in the future he would have such a right without obtaining a specialty license. Tested by the rule as set forth in the cases, this is not a justiciable controversy but is one that calls for the court to pass upon a mere academic question. There are no legal relations between the parties upon which a decree could operate.

Plaintiff urges that under the provisions of the Government Code, Section 11440, it is an interested person and entitled to the relief sought. That section reads as follows: ‘Any interested person may obtain a judicial declaration as to the validity of any regulation by bringing an action for declaratory relief in the superior court in accordance with the provisions of the Code of Civil Procedure and, in addition to any other ground which may exist, such regulation may be declared to be invalid for a substantial failure to comply with the provisions of this chapter or, in the case of an emergency regulation or order of repeal, upon the ground that the findings and statement do not constitute an emergency within the provisions of Section 11421(b).’

There is nothing in this section to indicate that the Legislature intended to dispense with the requisite of justiciability. In fact it plainly provides that an action for declaratory relief may be brought under the provisions of the Code of Civil Procedure. Under those provisions the courts, as we have seen, require a justiciable controversy. Plaintiff has discussed at length the history of the Administrative Practice Act but we find nothing there which evidences any intention on the part of the Legislature to change the controlling principles of declaratory relief when applied to administrative regulations.

Even where there is a justiciable controversy the court may refuse to exercise the power granted by the Code of Civil Procedure, Section 1060, if in its discretion it appears that the determination is not necessary or proper at the time under all the circumstances. In the absence of abuse its determination will not be reviewed upon appeal. C.C.P. § 1061, Hannula v. Hacienda Homes, Inc., 34 Cal.2d 442, 211 P.2d 302, 19 A.L.R.2d 1268; California Physicians' Service v. Garrison, 28 Cal.2d 790, 172 P.2d 4, 167 A.L.R. 306; Moss v. Moss, 20 Cal.2d 640, 128 P.2d 526, 141 A.L.R. 1422; Cutting v. Bryan, 206 Cal. 254, 274 P. 326. Ordinarily the court will not decide future rights in anticipation of an event which may never happen.

Plaintiff must show that the conditions exist which would justify the court in exercising its discretion to grant the relief sought. Merkley v. Merkley, 12 Cal.2d 543, 86 P.2d 89. No such showing has been made. We find no abuse of discretion.

The judgment is affirmed.

PATTERSON, Justice pro tem.

NOURSE, P. J., and GOODELL, J., concur.

Copied to clipboard