CITY OF TORRANCE v. FUJITA CORPORATION USA

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Court of Appeal, Second District, Division 5, California.

CITY OF TORRANCE, a Municipal Corporation, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondents; FUJITA CORPORATION USA, Real Party in Interest.

Civ. 45791.

Decided: June 12, 1975

Stanley E. Remelmeyer, City Atty., Richard L. Riemer, Santa Ana, and Ralph H. Nutter, Los Angeles, for petitioners. No appearance for respondents. Wells & Herring, Santa Monica, and Oliver, Stoever & Laskin, Los Angeles, for Fujita Corp. USA, real party in interest.

City of Torrance, a municipal corporation (City) seeks a writ of mandate to compel respondent Superior Court to grant its motion to dismiss its eminent domain action against Fujita Corporation USA (Fujita) who appears herein as the real party in interest. We issued an alternative writ. Fujita has interposed a demurrer and answer.

By its answer, Fujita admits the following allegations of petition: That City is the plaintiff in an action pending in respondent court entitled City of Torrance v. Starlite Estate, et al., No. C46766 (the action was filed January 8, 1973); that Fujita is a defendant1 in said action which is an action in eminent domain; that City commenced said action to acquire the described real property for any public use and purpose and for use in connection with public street purposes. Fujita answered and demanded $362,000 for the parcel. Fujita filed a notice of motion dated June 13, 1974, to dismiss the action, which motion was never acted upon; that on August 13, 1974, City ‘filed a document entitled ‘Notice of Abandonment of Eminent Domain Proceedings' pursuant to CCP 1255a’;2 that on December 5, 1974, the superior court granted Fujita's motion for order setting aside abandonment.

The answer herein alleges affirmatively that on April 15, 1974, Fujita purchased 283 acres of land of which the property proposed to be condemned constituted a part with knowledge of the pendency of the condemnation action; that on or about July 1, 1974, Fujita filed and City accepted a tentative industrial subdivision map covering the 28 acres including the parcel sought to be condemned but that in said map Fujita did not propose do dedicate for road purposes, the parcel sought to be condemned by City for road purposes; that City's master plan of streets adopted4 August 27, 1974, shows the parcel sought to be condemned as two streets; that City attempted to abandon the condemnation proceeding in order to compel Fujita to dedicate the disputed for streets without cost to City; that Fujita expended $100,000 in improving the real property.5

At oral argument Fujita requested this court to take judicial notice of the tentative subdivision map (a copy of which is attached to this opinion and incorporated herein) which it filed with City. Although said map is labeled ‘Exhibit B’ the record is not clear whether or not it was received in evidence in respondent court. However since the request is not opposed we take judicial notice of the map which indicates the tentative subdivision and the property sought to be taken. Since the document is a public document the trial court presumably did or should have taken judicial notice of it. The property sought to be taken consists of a portion of ‘Madrona’ street which borders the proposed Fujita subdivision on the westerly side and a portion of ‘235th St.’ which intersects with ‘Madrona’ and borders the proposed Fujita Industrial subdivision on a small portion of the northerly side. Although the map does not give the precise dimension of the parcel to be taken for each road, it is obviously long and narrow and not suitable for any other public purpose except a roadway. The amount of land to be taken from each lot of the proposed industrial subdivision (lots 2 though 8) is only a small percentage of each lot and does appear to substantially impair the usability of the part not taken. The lots are all vacant.

The petition herein alleges that City proposes to take approximately 132,900 square feet out of a larger parcel containing approximately 27 acres. Although this allegation of the petition is denied by Fujita's answer, it is obvious from Fujita's map that the allegation is substantially accurate.6 The Fujita map shows that of 17 lots in its proposed Industrial subdivision (Tract No. 25586)7 lots 2 though 8 would front on either proposed ‘Madrona’ Street or proposed ‘235th St’ but the map also shows that those same lots 2 through 8 would also front on proposed Kashiwa Street within the proposed industrial subdivision and which Fujita apparently proposed to dedicate as a public street. In other words, if the City's proposed streets were completed as originally contemplated lots 2 through 8 would front on two streets. Lot 7 being on the southeasterly corner of Madrona and 235th Street would actually front on three streets. City's proposed taking runs along the westerly or northerly boundary of lots 4 through 8 but cuts off a small portion of lots 2 and 3 from the remainder of lots 2 and 3. The court's order setting aside City's abandonment of the condemnation action merely found in the words of the statute that the position of Fujita ‘has been substantially changed to its detriment in justifiable reliance upon this proceeding and that Fujita Corporation USA cannot be restored to substantially the same position as if the proceeding had not been commenced.’

In declarations in support of Fujita's motion to set aside the abandonment of the condemnation action, Wells declared:

‘. . . So long as this condemnation action is pending, it effectively impairs development for sale, lease, subdivision and construction of the 27 acre parcel of which it is a part and in so doing, it will require this fendant to build alleyways, firelanes, waterlines and cul-de-sacs costing over $100,000.00 on the adjoining 28 acres instead of utilizing the adjoining property. In addition, this defendant has over $2,000,000 invested in said 27 acre parcel of which the condemned property is a part and by reason of the plaintiff's refusal and failure to prosecute this action, this defendant is effectively prevented from the sale, construction, lease and subdivision of its property while interest and taxes accumulate in the amount of $600.00 per day.

‘5. The acquisition of the 27 acre parcel and filing of a tentative tract map for development were done only after repeated promises and representations that this condemnation proceeding would be carried to completion.'8

Wells also declared:

‘. . . Fujita Corporation USA has laid out and dedicated roads, installed utilities and subdivided its adjoining 28 acre property and has purchased the property subject to the condemnation in reliance upon the City's repeated and publicly expressed desire and intention to acquire the condemned parcel. Fujita Corporation USA cannot, under any conceivable circumstances, be restored to its previous position. The City has been and continues to be fully aware of the fact that Fujita Corporation USA has designed and developed both the 28 and 27 acre parcels based upon the City's acquisition of the property under condemnation.’

City's attorney in opposing Fujita's motion to set aside the abandonment declared that Fujita did not purchase the property in question until fifteen months after the condemnation action had been filed and with full knowledge that the action was pending (as noted a lis pendens had been recorded); that the ‘entirety of the subject larger parcel is now and at all times herein mentioned was, totally vacant and unimproved.’ The city attorney also declared that Tract No. 28795 ‘is self contained, containing all required alleyways, firelanes and waterlines and cul-de-sacs' with access thereto by an extension of Telo Avenue to Lomita Boulevard, that the map of tentative Tract No. 25586 (filed by Fujita) ‘did not depict thereon either that portion [of] proposed Madrona Avenue or 235th Street as described in the subject complaint; that access to said proposed tract was to be via Early Street to Lomita Boulevard and via extension of both Fujita Street and Kashiwa Streets across Tract No. 28795 immediately adjacent easterly.’

CONTENTIONS

Petitioner contends:

I The superior court was required as a matter of law to uphold City's abandonment because:

A. The provisions of Code of Civil Procedure section 1255a are mandatory in the absence of a positive showing of very unusual circumstances;

B. Fujita had produced no competent evidence of a substantial change in position;

C. No justifiable reliance was shown;

D. Fujita can be returned to its original position.

II The cases wherein the doctrine of estoppel has been used to prevent abandonment are not applicable here.

III The Legislature did not intend to prevent abandonment where money damages can compensate.

IV Code of Civil Procedure section 1255a(b) is unconstitutional as applied by superior court.

V The superior court abused its discretion.

VI Dismissal of action will aid the administration of justice.

DISCUSSION

We note at the outset that this case does not involve any question of interference by City with Fujita's possession. City did not seek or obtain an order of possession. We also note that this case does not involve any question of a way of necessity. Fujita will have access to its proposed subdivision and each proposed lot therein over public streets, even if this proceeding is dismissed and Madrona Street and 235th Street as proposed are not built.

Reduced to its simplest form this problem involves a situation in which a city undertook by condemnation action to acquire private property for public roads, a private land developer in reliance thereon purchased land for subdivision purposes and the City then changed its mind and decided to abandon the proposed roads. We do not know from this record whether the cost was prohibitive, whether City hoped the developer would dedicate the land for road purposes (as Fujita claims) or whether it developed alternate plans or decided to postpone the development. Legally speaking, the City's reason is relatively immaterial.. In the absence of evidence to the contrary we presume the City is acting in good faith. The ultimate question is one of municipal power and discretion and the interference with that power and discretion by judicial intervention, or more precisely: what facts must be established before a court is legally justified in interfering with that municipal power and discretion?

Fujita argued in the court below incongruously, that ‘So long as this condemnation action is pending it effectively impairs development for sale, lease, subdivision and construction of the 27 acre parcel of which it is a part . . .’ and then concludes that City should not be permitted to dismiss the action the pendency of which causes the problem. In our view the premise compels the opposite conclusion. Fujita also argued, in the court below, ‘by reason of the plaintiff's refusal and failure to prosecute this action, this defendant is effectively prevented from the sale, construction, lease, subdivision of its property while interest and taxes accumulate in the amount of $600.00 per day.’ The court's order compounds but does not correct the alleged wrong. So far as the evidence is concerned the alleged wrong could have been just as easily corrected if the uncertainty had been removed by allowing City to abandon the action as it elected to do.

The court's order merely prohibits abandonment of the action but makes no provision for diligent prosecution of the case.

In the court below Fujita relied primarily on two cases in support of its motion to vacate the abandonment: Times Mirror Co. v. Superior Court, 3 Cal.3d 309, 44 P.2d 547 and McGee v. City of Los Angeles, 6 Cal.2d 390, 57 P.2d 925. In our view neither of those cases justify the instant order. In each case the landowner in reliance on the condemnation case had changed its position in such a way that merely allowing casts and attorneys' fees upon abandonment of the action would not compensate the landowner for the damage which it suffered. In Times Mirror Co., the landowner had built a new single purpose building which nobody else could use economically and which it would not have built but for the condemnation action. In McGee, the landowner demolished an existing building on the subject property which it would not have demolished but for the condemnation action. In neither case could the landowner be made whole unless the condemnation case proceeded to judgment. We perceive no comparable relationship between those cases and the case at bar. The two roads in question here are not essential to Fujita's subdivision. They do not constitute ways of necessity. We are willing to presume that the construction of Madrona Street and 235th Street would enhance the value of those seven lots—2 through 8—which would thereafter front on two streets. Although the construction of those two streets might enhance the value of those seven lots, the failure to construct the streets will not in our view result in that type of irreparable injury which is contemplated by Code of Civil Procedure section 1255a. As we have already noted, only seven of the 17 lots in tentative Tract No. 25586 front on either Madrona Street or 235th Street, all 17 lots front on either proposed Kashiwa Street or proposed Fujita Street which are within the proposed subdivision, and neither Kashiwa Street nor Fujita Street connect with Madrona Street or 235th Street. There is no evidence in this record which we have been able to find or that has been called to our attention which would sustain any finding that Fujita has suffered or will suffer any irreparable injury if the condemnation proceeding is abandoned, other than the possible expenditure of money in the preparation of plans and proposals.

We can find no evidence in this record to support a conclusion that as a result of the abandonment of the condemnation proceeding Fujita will suffer any legal loss or detriment other than the amount of the award for the property which, but for the abandonment, would have been taken. and costs and attorneys' fees in preparing to defend the action. There is no evidence that the proposed subdivision cannot proceed as originally contemplated with precisely the same access to the 17 lots as originally contemplated excepting only that seven lots (lots 2 through 8) will front on one street instead of fronting on two streets. Even if we presume that such fact might make those seven lots less valuable than they would have been if the condemnation action had been completed and the roads constructed as originally planned by City (which we regard as the strongest form of presumption which an appellate court indulge in to sustain the order of the trial court) that kind of economic detriment is not in our view the type of irreparable injury contemplated by Code of Civil Procedure section 1255a, subdivision (b). Regardless of the amount of money expended by Fujita in preparing the proposed subdivision such expenditure does not constitute an irreparable loss absent a showing that Fujita cannot proceed with the development of the subdivision as originally planned if the condemnation action is abandoned. No such showing is made here. In short, there is no evidence to support the trial court's finding that Fujita cannot be restored to substantially the same position as if the proceeding had not been commenced. There is no factual basis upon which we can conclude that Fujita's rights in inverse condemnation or under the provisions of Code of Civil Procedure section 1255a, subdivision (c) will not adequately compensate Fujita for any legal damage which it will sustain as a result of the abandonment of the condemnation action.

Under Code of Civil Procedure section 1255a, subdivision (a), a plaintiff may voluntarily abandon a condemnation proceeding. The purpose of allowing a plaintiff to abandon a condemnation action is to permit a public agency to avoid a project made impracticable or undesirable by subsequent events or an excessively high award. (Torrance Unif. School Dist. v. Alway, 145 Cal.App.2d 596, 600, 302 P.2d 881; People v. Superior Court, 47 Cal.App.2d 393, 395, 118 P.2d 47.) That power which is vested in the legislative/executive branches should not be lightly disregarded by the judicial branch.

Code of Civil Procedure section 1255a, subdivision (b) provides that, ‘[t]he court may, upon motion made within 30 days after such abandonment, set aside the abandonment if it determines that the position of the moving party has been substantially changed to his detriment in justifiable reliance upon the proceeding and such party cannot be restored to substantially the same position as if the proceeding had not been commenced.’ (Emphasis added.)

When a city improves highways, it is acting in a governmental capacity. (McNeil v. City of South Pasadena, 166 Cal. 153, 135 P. 32; Municipal Bond Co. v. City of Riverside, 138 Cal.App. 267, 274, 32 P.2d 661.) The city cannot be compelled to complete the condemnation proceedings or to give damages except in exceptional circumstances. (Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 83 P.2d 942; Code of Civ.Proc. § 1255a(b).)

In the absence of very unusual circumstances, a court would not be justified in denying the motion to abandon the condemnation action. The court in People v. Superior Court, 47 Cal.App.2d 393 at 398, 118 P.2d 47, at 50, stated that ‘it is difficult to perceive of a situation existing before the trial of a condemnation action wherein the plaintiff could be estopped from abandoning the proceeding.’

The city council members who are sworn public officials, have a duty to protect the public interests. If they decide to abandon an action, in the exercise of their official discretion, they have exercised their option and courts should not sustain a charge of bad faith (see Board of Supervisors v. Proffit, 129 Va. 9, 105 S.E. 666) at least in the absence of some substantial evidence.

Fujita's position was not substantially changed. It knew of the existing condemnation action when the property was purchased and thus assumed the liabilities that came with the fact that the action was pending and might lawfully be abandoned. The alleged damage of which Fujita complains was voluntarily and unnecessarily assumed. If it had deferred the expenditure of money on plans and specifications for the tentative subdivision until after the condemnation action had been perfected, it would have suffered no loss. In our view it voluntarily acted precipitously and prematurely. Fujita made no substantial improvements or development in this period remotely comparable to the changes which occurred in the cases of Times-Mirror Co. v. Superior Court, supra, and McGee v. City of Los Angeles, supra. Fujita should not be allowed to set aside the abandonment when its position has not substantially and irreparably changed from the time of its purchase of the property.

There may be hardship in compelling the owner to hold property in a state of uncertainty while awaiting the conclusion of a condemnation suit and a determination on whether the property will eventually be taken. However, this inconvenience occurs, to some extent, in all proceedings where land is taken for public improvements and is incident to all land owned in a community. (Howard v. Illinois Central R. Co., F.2d 267, 271 (7th Cir. 1933).)

In order to preserve the principle of separation of powers which is fundamental to our concept of government, the judicial branch should exercise restraint in interfering with decisions of the executive or legislative branch of government particularly where the judicial branch can provide a citizen with an alternate remedy. Here an alternate remedy of an action for damages in inverse condemnation was available (Klopping v. City of Whittier, 8 Cal.3d 104 Cal.Rptr. 1, 500 P.2d 1345) if meritorious. It was wholly unnecessary to exercise the drastic remedy of setting aside the abandonment particularly under the facts of this case where Fujita bought the property with knowledge of the pendency of the action, the abandonment was filed long before trial or any change in the physical condition of the subject property or the property from which it would be severed, and Fujita filed with the court two declarations under the penalty of perjury which taken together allege that it would suffer the precise damage if the case were not dismissed that it would suffer if the case were dismissed. Fujita argues that it is not bound by its original declaration in support of its motion to dismiss because that motion was never heard. The original declaration was legally efficacious upon filing regardless of whether or not the motion was heard. The original declaration was binding on Fujita as soon as it was executed and filed. The court may and should look at its entire file in order to prevent an abuse and misuse of its processes. ‘Facts once alleged, however, cannot be withdrawn from consideration by merely filing an amended pleading omitting them without explanation.’ (Neal v. Bank of America, 93 Cal.App.2d 678, 682, 209 P.2d 825, 827.) We think this rule is especially relevant where, as here, the two legal documents allege diametrically opposed conclusions. Fujita first alleged it would suffer certain damage if the case was not dismissed and it then alleged it would suffer the identical damage if the case was dismissed. Fujita had an obligation to be fair with the court. At least the City had a right to rely on the original declaration which may well have been a precipitating factor in its decision to abandon.

Fujita's demurrer to the petition for writ of mandate is overruled.

Let a peremptory writ of mandate issue directing respondent court to vacate and set aside its certain order dated December 5, 1974, setting aside City's abandonment of that certain condemnation action entitled City of Torrance v. Starlite Estates, et al., No. C46766 in the records and files of said court, and directing said respondent court to take such further action in said proceeding as will be consistent with the views expressed herein.

FOOTNOTES

FOOTNOTE.  

1.  The complaint was filed January 8, 1973, and lis pendens was recorded January 26, 1973. Fujita purchased the property April 15, 1974. The tendency of the action was noted as Exception 9 in a policy of title insurance which Fujita acquired on April 15, 1974.

2.  On July 11, 1974, the case was set for pretrial conference on August 21, 1974.

3.  In other documents this parcel is described as consisting of 27 acres. The figure 28 may be a typographical error due to the fact that Fujita also owns an adjacent parcel which consists of 28 acres.

4.  City alleges that this master plan has not been adopted but is ‘conceptual’ only.

5.  The documents are unclear whether the property on which the $100,000 was expended was the parcel to be taken or the remainder which was not taken. The City's papers allege that the parcel to be taken is vacant land without improvements.

6.  A declaration by William G. Wells, vice president and general manager of Fujita, alleges that the parcel to be taken consists of 117,300 square feet.

7.  The map discloses that Fujita also owns an additional 28 acre parcel adjacent to Tract No. 25586 which is divided into 19 lots and ‘is presently’ being developed as an industrial subdivision. Tract No. 28795 is not contiguous to either Madrona Street or 235th Street at any point.

8.  Surprisingly Wells made the identical statement in support of Fujita's initial motion to dismiss the action (which motion was apparently never heard) as follows:‘. . . So long as this condemnation action is pending, it effectively impairs development for sale, lease, subdivision and construction of the 27 acre parcel of which it is a part and in so doing, it will require this defendant to build alleyways, firelanes, waterlines and cul-de-sacs costing over $100,000 on the adjoining 28 acres instead of utilizing the adjoining property. In addition, this defendant has over $2,000,000 invested in said 27 acre parcel of which the condemned property is a part and by reason of the plaintiff's refusal and failure to prosecute this action, this defendant is effectively prevented from the sale, construction lease and subdivision of its property while interest and taxes accumulate in the amount of $600.00 per day.’

LORING, AssociateJustice.* FN* Assigned by Chairman of the Judicial Council.

KAUS, P. J., and ASHBY, J., concur.

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