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District Court of Appeal, Fourth District, California.

H. L. GOGERTY, Plaintiff and Appellant, v. COACHELLA VALLEY JUNIOR COLLEGE DISTRICT et al., Defendants and Respondents. *

Civ. 6648.

Decided: November 20, 1961

Cantillon & Cantillon, Beverly Hills, for appellant. Ray T. Sullivan, Jr., County Counsel, Riverside, for respondents.

This is an appeal by plaintiff from a judgment entered for defendant pursuant to an order sustaining, without leave to amend, defendant's demurrer to plaintiff's fourth amended complaint.

The Complaint

Plaintiff's complaint, in substance, alleges that he is a taxpayer and resident citizen of defendant district; that he brings this action as a representative of the other taxpayers of the district; that on August 6, 1959, defendant selected a certain site for erection of its junior college; that said site consists of 160 acres of land in close proximity to a certificated airport and is within the governmentally approved landing and takeoff patterns of said airport with resultant loud noise and potential danger to pupil students using such site; that defendant proposes purchase of the site for the price of $608,000 and expenditure of $3,500,000 for erection of the college; that defendant received a report from the State Department of Education disapproving the site and failed and refused to consider such report; that defendant always intended to acquire the site, regardless of what the report advised and acquired the report only to ostensibly comply with the requirement of Section 15005 of the Education Code; that each member of defendant Board of Trustees of defendant district has received notice from the California Aeronautics Commission, Riverside County Airport Commission and Federal Aviation Agency that because of noise and potential danger to pubils or students the site would be useless for a school; that there are other available sites more suitable; that the predetermined plan to acquire the site regardless of the Department of Education report and refusal to consider or evaluate the report constitutes a fraud on plaintiff; that plaintiff has no plain, speedy or adequate remedy at law; that plaintiff and the taxpayers will suffer irreparable damage; that the expenditures would be wasteful and without benefit to the district. He also includes in his complaint a plethora of legal conclusions relating to the legal duties of defendant with such appellations toward defendant's conduct as bad faith, capricious, fraudulent, arbitrary, preconceived and predetermined. He speaks of the defendant having already ‘acquired’ the site and from a reading of all his allegations and the briefs it is apparent that purchase is, in fact, completed. He prays that the selection of the site be declared null and void and for an injunction forbidding its acquisition and/or development or expenditure of public funds thereon. Defendants' demurrer is on the ground that the complaint does not state facts sufficient to constitute a cause of action and that plaintiff has not shown any legal capacity to sue.

Sufficiency of Complaint

There is no disagreement between the parties as to the basic principles of law involved. The issue is merely whether or not the allegations show any violation of law by defendant. A school district is simply an agency of the state created for convenience in local management of the state's overall function of providing education. (Hall v. City of Taft, 47 Cal.2d 177, 181 [2–4], 302 P.2d 574.) When, as is true in the case here at bar, a governing board of a political subdivision of the state is given the discretionary power to act, the judicial department may not interfere unless the act questioned is ultra vires, is the result of fraud, failure on the part of a governmental body to perform a duty specifically enjoined, or is so palpably unreasonable and arbitrary as to show, as a matter of law, an abuse of discretion. (Hannon v. Madden, 214 Cal. 251, 257[2], 5 P.2d 4; Berkeley High School District of Alameda County v. Coit, 7 Cal.2d 132, 137 [4], 59 P.2d 992; Nickerson v. County of San Bernardino, 179 Cal. 518, 522[2],177 P. 465; City and County of San Francisco v. Boyd, 22 Cal.2d 685, 690 [2], 140 P.2d 666; Glide v. Superior Court, 147 Cal. 21, 25 [2], 81 P. 225; Ransom v. Los Angeles City High School Dist., 129 Cal.App.2d 500, 505 [1], 277 P.2d 455; Butler v. Compton Junior College Dist., 77 Cal.App.2d 719, 726[1], 176 P.2d 417; Wine v. Council of the City of Los Angeles,177 Cal.App.2d 157, 164 [2–3], 2 Cal.Rptr. 94.) Allegations of caprice, fraud, arbitrary action and bad faith are mere conclusions of law and add nothing, from a factual standpoint, to the complaint. (Sinclair v. State of California, 194 A.C.A. 415, 423 [7], 15 Cal.Rptr. 493; Faulkner v. California Toll Bridge Authority, 40 Cal.2d 317, 329[9], 253 P.2d 659; Wheeler v. Oppenheimer, 140 Cal.App.2d 497, 501 [3], 295 P.2d 128.) In determining the validity of the act of a governing board we must look to the statute involved. (Merrill, etc., School Dist. v. Rapose, 125 Cal.App.2d 819, 821, 271 P.2d 522.)

Section 15005 does not require or even suggest that the school board shall hold a new hearing after the rendition to it of the advisory report therein referred to. If merely provides that the Board must wait 30 days after receipt of the report before acquiring title to the property in question. Plaintiff does not allege that defendants did not hold all the hearings required by law or by its own rules, nor does he allege that prior to any meeting at which the Board was required to exercise its discretion, the Board predetermined what it would do. The complaint does not negate that at those hearings where the Board was required by law to exercise its discretion it considered and weighed every fact presented to it, including all facts contained in the report. He does not allege that the defendant did not acquire full knowledge of and fully consider all the factors involved in the Department report long before that report was made. He intimates but does not allege that any citizens or taxpayers ever, in fact, made any protests. He says the property is in ‘close proximity’ and within two miles of the airport. He does not say where or how close. He does not say that any member of the Board has not read the report. In fact, his pleading clearly intimates each member has read it. He does not suggest that it gave the Board any facts they had not already thought about and considered. Maxwell v. City of Santa Rosa, 53 Cal.2d 274, 1 Cal.Rptr. 334, 347 P.2d 678, and other authorities cited by plaintiff do not support plaintiff's position. In the Maxwell case the Board was required by law to take certain steps. In each such step the Board was required by law to make its decision on the facts then before it. The allegations were that, prior to taking such steps at each of which the Board was specifically required to make a decision, the Board predetermined what its decision would be. Any such predetermination would, of course, be a form of fraud. Under proper circumstances, a court might interfere. But no such condition is shown in the case at bar. The distinction is similar as to the other authorities cited.

The statute here involved places no restriction on the action of the Board except lapsation of time after receipt of the report. If the legislature had intended to compel an additional Board meeting, hearing on protests or some other type of restriction, it could easily have done so. Plaintiff apparently wishes us to read some such provision into the statute. This we cannot do. It is not within our province to legislate. (City of Walnut Creek v. Silveira, 47 Cal.2d 804, 811 [10], 306 P.2d 453; Rakow v. Swain, 178 Cal.App.2d 895, 901 [4], 6 Cal.Rptr. 404; Richardson v. City of San Diego, 193 ACA 700, 703 [4], 14 Cal.Rptr. 494.) All other points are controlled by the foregoing discussion.

The judgment is affirmed.

SHEPARD, Justice.

GRIFFIN, P. J., and COUGHLIN, J., concur.