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District Court of Appeal, Second District, Division 1, California.


No. CIV. 14899.

Decided: September 12, 1951

Harold B. Cooper, El Monte, for appellant. Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., John L. Flynn, Deputy City Atty., Los Angeles, for respondent.

Appellant, after an adverse final determination by this court of the above entitled cause, has moved to recall the remittitur, “to reinstate the cause on the calendar of said court for hearing and determination, and to amend, under section 956a, Code of Civil Procedure, the findings of fact and the conclusions of law so that they will be in accordance with the pleadings, a stipulation in the trial court, and the evidence, particularly defendant-respondent's own records, city clerk's file No. 4550 (1934), and No. 690 (1935), which file is Exhibit No. 4, and particularly the testimony of defendant-respondent's own officials”.

Recall of the remittitur is sought upon the grounds that (1) this court decided the cause under a misapprehension of the true facts; (2) that the sending down of the remittitur was an inadvertence caused by fraud or imposition upon the court.

The appeal on the merits was decided January 28, 1946, 72 Cal.App.2d 689, 165 P.2d 497, to which decision reference is made for a full statement of the factual background which gave rise to this litigation. Appellant petitioned for a rehearing which was denied February 14, 1946, and on March 28, 1946, appellant's petition for a hearing in the Supreme Court was denied. On March 30, 1946, the remittitur issued to the county clerk. On November 3, 1950, appellant filed the motion now under consideration.

There can be no doubt that, in a proper case, this court has power to recall a remittitur. Usually and ordinarily when a remittitur has been sent to and filed in the court below, the appellate tribunal loses jurisdiction of a cause. The function of a remittitur is to return to the court below the cause which has been brought up on appeal. Upon the filing of the remittitur in the lower court, the cause is pending therein, and not in this court. In other words, this court is without appellate jurisdiction over its own judgments, and after the cause has once passed from its control by the issuance of a remittitur, it is without power or authority to review or modify it. But, as was stated in Isenberg v. Sherman, 214 Cal. 722, 725, 7 P.2d 1006, 1007, “However, that rule has no application to a situation where the judgment of this court and the consequent sending down of the remittitur has been secured by fraud or imposition, or where the court has been led astray so as to decide the case under a misapprehension as to the true facts. If such be shown to be the case, this court may recall the remittitur. The theory upon which this power is exercised is not that the court, in this manner, resumes jurisdiction over a cause, but that the court has never lost jurisdiction, because an order secured by fraud and false suggestion is a nullity, and cannot be deemed to be the order of the court. It therefore follows that in such a case the court has never lost jurisdiction. The case of Trumpler v. Trumpler, 123 Cal. 248, 55 P. 1008, discusses the principles involved at some length. At page 252 of 123 Cal., 55 P. [at pages] 1008, 1009, it is stated:

“ ‘The general principles governing the jurisdiction of this court over a case which has been here, after the issuance of remittitur, and the power of the court to recall a remittitur, have been well settled, They were first elaborately stated in the case of Rowland v. Kreyenhagen, 24 Cal. 52. In that case the court, having stated that as a general rule this court cannot exercise any jurisdiction over a case in which a remittitur has been issued by its order and filed in the court below, say as follows: “But this general rule rests upon the supposition that all of the proceedings have been regular, and that no fraud or imposition has been practiced upon the court or the opposite party; for, if it appears that such has been the case, the appellate court will assert its jurisdiction and recall the case.” ‘ “

In accordance with the foregoing principles, it has been held that a remittitur may be recalled where the reviewing court was imposed upon by counsel, Trumpler v. Trumpler, 123 Cal. 248, 253, 55 P. 1008, where the decision was predicated upon a mistake of fact by the appellate court, In re Rothrock, 14 Cal.2d 34, 38, 92 P.2d 634; see Holloway v. Galliac, 49 Cal. 149, or was improvidently rendered without due consideration of the facts of the case, Municipal Bond Co. v. City of Riverside, 138 Cal.App. 267, 288, 32 P.2d 661; cf. Haydel v. Morton, 28 Cal.App.2d 383, 385, 82 P.2d 623, or was the result of inadvertence upon the part of the court. In re Bill's Estate, 7 Cal.Unrep. 174, 74 P. 704 (order reversing judgment inadvertently made when there was no appeal from the judgment). See also In re McGee, 37 Cal.2d—, 229 P.2d 780, 781, 782.

The principle of resumption of jurisdiction is not involved, and the right to recall a remittitur is predicated upon the ground that this court cannot be divested of its jurisdiction by an irregular or improvident order.

The question for determination is whether the present application comes within the limits of the foregoing rules. And we are disposed to say that in those cases, rare though they may be, in which a remittitur should be recalled, the foregoing rules should not be applied so rigidly as to defeat the ends of justice. Greenfield v. Mather, 32 Cal.2d 23, 35, 194 P.2d 1.

In support of its contention that this court decided the cause under a misapprehension of the true facts, appellant urges the following claimed contradictions appearing in the opinion.

In the first paragraph of the opinion appears the following: “On May 13, 1927, the plaintiff acquired from the owner, Henry G. Weyse, an exclusive leasehold right to use the pit for dumping purposes until the same should be filled * * *.” [72 Cal.App.2d 689, 165 P.2d 497, 498.]

That thereafter, in the opinion we find the statement: “On November 22, 1929 * * * Weyse deeded to the city a 90 foot right of way across the pit for the purpose of extending Washington Boulevard * * *.”

It must be conceded that at no place in this court's opinion does it appear that after May 13, 1927, Henry G. Weyse reacquired from appellant, or from anyone else, any possessory rights to the pit, or to any portion thereof. Thus, argues appellant, it was held that the grantor of the respondent city of Los Angeles conveyed to the latter what he had already conveyed to appellant.

In the next to the last paragraph of the opinion of this court it is stated: “Appellant's criticism of the other findings of fact and conclusions of law is likewise without merit, as is the contention that the court failed to find upon material issues.”

Examination of the opinion discloses that the word “other” refers to all of the findings except findings I, VI, and VIII. The last above-mentioned statement in the opinion covers finding II, which is as follows: “That on the 22nd day of November, 1929, defendant City of Los Angeles acquired * * * all possessory rights of whatsoever nature to a strip of property * * * through * * * the ‘Blue Diamond Pit,’ by grant deed from Henry G. Weyse. * * * ”

Appellant urges that this court upheld finding II notwithstanding the statement in the first paragraph of our opinion that appellant, and not Henry G. Weyse, owned the exclusive possessory rights to use the entire pit for dumping purposes from May 13, 1927 “until the same should be filled”.

It is next set forth that in the third paragraph of the opinion this court stated: “ ‘In the latter part of the year 1934,’ quoting from the Settled Statement of Appeal, ‘one Clay McCarty made an offer to the City * * * (of) the right to fill the space in the 90–foot right-of-way and necessary slopes across the Pit. * * * On March 12, 1935, the City Council adopted a resolution accepting the above offer on certain conditions. These conditions included a requirement that * * * the city be granted * * * ‘the nine acres to be conveyed by H.G. Weyse,’ and a release (from the Southwestern) ‘of all dumping rights within the 90–foot right of way * * * ’ “.

That in the fourth paragraph of the opinion the following appears: “Pursuant to the proposed settlement an escrow was opened on March 14, 1935, and on April 16, 1935, new escrow instructions were filed which increased the acreage to about 12 acres, covering all of the property north of the temporary roadway.”

It is true as contended by appellant herein that nowhere in the opinion does it appear that the city council amended its original resolution of March 12, 1935 (hereinabove referred to as appearing in the opinion), and an examination of Exhibit No. 4 discloses that this resolution was not amended. Thus, argues appellant, such “new escrow instructions” which purported to increase “the acreage to about 12 acres”, did not conform to the contract entered into by the city council, and “were, consequently, incorrect, unlawful, fraudulent and void”. Security–First Nat. Bank v. Clark, 8 Cal.App.2d 709, 712, 713, 48 P.2d 167; McQuillan on Municipal Corporations, 1950 Ed., Vol. 10, sec. 29.21. It is then urged that the escrow was “incorrect and fraudulent” and could not be a legal instrumentality in the transaction, but that the opinion of this court states that such escrow was the instrumentality “by which the city acquired a fee title to the Blue Diamond Pit * * * ”.

Appellant next challenges the statement contained in the foregoing opinion of this court that “There is nothing of record in the instant case which in any manner tends to rebut the presumption that ‘private transactions have been fair and regular’ (C.C.P.Sec.1963(19)), or the corresponding presumption that ‘official duty has been regularly performed’, (C.C.P.Sec.1963(15)).”

In support of such challenge, appellant directs our attention to statements made by two judges of the superior court before whom these proceedings were pending in the early stages thereof (these judicial utterances were not before us on consideration of the appeal herein).

The first such statement appears in a memorandum opinion of Judge Clarence M. Hanson of the Superior Court of Los Angeles County, rendered in ruling upon a demurrer and motion. It is as follows: “It is not to be gainsaid that the contract entered into between the plaintiff and those who purported to bind the city is invalid for want of approval by the City Council. But the contract is not invalid as to the plaintiff alone; it is likewise invalid as to the city. But from that invalid contract there flowed to the city an asset which, except for the contract, it was not entitled to and would not have received. The city cannot keep property for which its agents agreed to pay, or as here, to grant a permit, any more than can an individual. When the city does business it must do so on business terms and not on the theory that it can get something for nothing. Section 386 is not here a shield—indeed, it is not involved despite the ingenious and admirable argument of counsel for the city. Demurrer overruled; motion denied.”

The second statement was made by Honorable Clement L. Shinn, then a judge of the Superior Court of Los Angeles County, upon the conclusion of a phase of this litigation pending before him. It is as follows:

“The Court: If this transaction could be set aside because of the inherent dishonesty in it, I wouldn't hesitate a minute to give the plaintiff a judgment.

“(Remarks by Mr. Mealey.)

“The Court: Well, call it immorality or whatever you want to call it. How the city—

“(Interruption and remarks by Mr. Mealey.)

“The Court: I know what your position is, Mr. Mealey, but if any individual had done what the city has done here, no one could accuse him of being honest in his business dealings.”

It does appear that because of conflicting findings the opinion of this court, while recognizing that the city acquired the right to fill the space in a 90–foot strip and necessary slopes across the pit, which space was necessary for the extension of Washington Boulevard across said property, inadvertently holds that the city acquired rights to fill the remainder or all of the pit, a fact which is negatived by the offer made to and accepted by the city council. Manifestly if, as stated in the opinion, appellant herein “On May 13, 1927, * * * acquired from the owner, Henry G. Weyse, an exclusive leasehold right to use the pit for dumping purposes until the same should be filled”, said owner could not on November 22, 1929, deed “to the City a 90–foot right of way across the pit” for the simple reason that on and after May 13, 1927, said Weyse did not own any possessory rights to the pit.

Undoubtedly, for the foregoing reason, as appears from the opinion, “the city demanded a quitclaim deed from the Southwestern * * * ‘conveying all their rights in and under the 90–foot right of way and the nine acres to be conveyed by H.G. Weyse,’ and a release ‘of all dumping rights within the 90–foot right of way owned by the City across the Pit.’ “

It does appear that the findings are in conflict and that the opinion filed herein inadvertently held that the city acquired rights to the entire pit while in reality the transaction in question contemplated (as shown by the offer to sell to the city and the city council's resolution of acceptance) the right of the city to fill the 90–foot strip and the slopes across the pit for the extension of Washington Boulevard.

In the opinion of this court we also find the following language: “A letter report from Commissioner of Public Works Allan to the City Council, dated October 24, 1934, recommending acceptance of the McCarty offer, says nothing about appellant retaining any dumping rights, but suggests that the city secure a deed or release from appellant ‘concurring in this transaction,’ and states that ‘This would give the City complete jurisdiction of the pit of approximately 400 feet wide, including the present Right of Way owned by the City, and the sole right to fill the pit * * * ’ (Italics added.)”

Reference to the so called Commissioner Allan report mentioned in that part of the last-quoted portion of the opinion, and which report appears in the city clerk's file, lends support to appellant's claim that the intent of the city was to obtain rights to the 90–foot strip and slopes, but as appellant urges in its motion, “a substantial portion of the Blue Diamond Pit, but not all of it, because the filling of the 90–foot strip and slopes would fill less than one-half of the then total space known as the Blue Diamond Pit”. We think it may fairly be said that, whether purposely or inadvertently, the court was led astray so as to decide the cause under a misapprehension of the true facts, viz., that the city council by its resolution of acceptance and the offer which prompted such acceptance, never intended that the city's rights should extend to more than the right to fill the 90–foot strip and slopes necessary for the extension of Washington Boulevard, and not to the entire Blue Diamond pit in which appellant had possessory rights. That appellant surrendered rights only to the extent provided for in the heretofore called McCarty offer and the council resolution of acceptance thereof.

In the opinion of this court it is stated: “A quitclaim deed containing no reservations or exceptions and covering the 12.09 acres contemplated by the amended escrow instructions, was presented to appellant in April, 1935, signed by Southwestern on September 23, 1935, and deposited in escrow on October 29, 1935.”

However, in truth and in fact it appears (Exhibits 1 and A) that the deed in question did not cover “the 12.09 acres” above referred to but did cover 15.962 acres. This it appears was not what the city council called for from appellant in order to carry out the aforesaid McCarty offer.

The trial court's finding II reads: “That on the 22nd day of November, 1929, defendant City of Los Angeles acquired * * * all possessory rights of whatsoever nature to a strip of property ninety feet in width over, under, along and through the premises described in plaintiff's said second amended complaint—generally known as the ‘Blue Diamond Pit’—by grant deed from Henry G. Weyse * * * ”.

It now appears that the right of possession of the Blue Diamond pit by appellant for the purpose of filling the same was obtained by appellant under an agreement between the owner, Henry G. Weyse, and appellant dated May 13, 1927, and that the city council was so advised by the city attorney. Manifestly, as heretofore pointed out, appellant could not be divested of those possessory rights obtained in May, 1927, by a deed from the owner, Weyse, to the city executed some two years later. Consequently, the rule that all intendments and inferences favor the judgment, as set forth in the opinion, can have no application where the documentary evidence shows without conflict that the finding is in direct contravention thereof. Stoll v. Selander, 81 Cal.App.2d 294, 296, 183 P.2d 940. It might here be noted that findings III, IV and V are more or less based upon and inseparably tied to the aforesaid finding II.

Whatever may be said regarding the modifications and changes in the transaction made by various city administrative officials, it does appear that the only proposal accepted by the city council was the hereinbefore referred to McCarty offer, and that the intention of the parties was that when the council acted it accepted appellant's instrument as being a release concurring in the McCarty offer, that is, being a quitclaim deed transferring to the city the right to fill the 90–foot strip and necessary slopes for the extension of Washington Boulevard across the Blue Diamond pit. Law and good morals should be one and inseparable. That such may not have been the case in the instant proceeding is evidenced by the remarks of two superior court judges during various phases of this litigation, and which remarks are hereinbefore set forth.

We cannot agree with respondent city that in the attempt to have the remittitur herein recalled “What petitioner is really seeking is a reconsideration of this case upon the theory that the City of Los Angeles and its officials perpetrated an outrageous fraud upon plaintiff and viewing the evidence from that standpoint reinterpreting it on the assumption that the cause of action sounds in fraud.” We fail to perceive wherein appellant seeks to alter the basic theory of its cause of action which is “to impress with a trust for its benefit all space in the Blue Diamond Pit not required for the support of right of way for Washington Boulevard across said pit, notwithstanding the grant contained in its deed to the City of Los Angeles.”

Respondent city also urges that it is a fundamental rule that a motion to recall a remittitur must be promptly made. While it is true that unexplained delay is itself sufficient to deny the relief, Ellenberger v. City of Oakland, 76 Cal.App.2d 828, 836, 174 P.2d 461, appellant in the cause now engaging our attention, through its president, C.C. Bigelow, has filed an affidavit in explanation of the lapse of time ensuing between the date the petition for hearing in the Supreme Court was denied and the presentation of the present motion. Said affidavit is lengthy but may be epitomized by saying that it is therein averred that “In the forepart of the year 1946, and a few days after the Supreme Court of this State had declined to review the decision of the District Court of Appeal in this action, Southwestern's then attorneys, Messrs. James R. Jaffray and Don Lake, told me that they were through acting as our attorneys. Thus, the Southwestern was left without legal advice, for it was totally without funds, or assets of any kind, and, therefore, could not retain other counsel”. Appellant's president then sets forth that because of lack of funds to engage attorneys he decided to appeal to the city council of Los Angeles to redress the claimed wrong done the corporation of which he was president. To that end he proceeded to obtain statements from the eleven living members of the council as it existed at the time of the transaction in question. This consumed approximately five months. These statements, with other information, were presented to the city council, but it is averred that body was advised by the city attorney that the council was without jurisdiction under the charter to grant the relief prayed for. Affiant then avers that “possibly the thing to do, would be to ask the state legislature to pass an enabling act” so that the council might be empowered to act upon appellant's petition for redress of the claimed wrong. Affiant then consulted a member of the legislature, as a result of which the question framed by affiant was submitted to the legislative counsel for an opinion. The answer to this inquiry was that such legislation “probably would be held unconstitutional”. Affiant then avers that in the letter from the legislative counsel “there were three paragraphs in the letter which made it plain that the Los Angeles electors could, if they wanted to do so, amend the City Charter so that the City Council could redress such wrongs as this one perpetrated upon the Southwestern, because the letter stated that the courts have held that ‘the freeholders' charter is the supreme law of a city on its municipal affairs.’

“To set the stage for requesting the City Council to submit to the electors an enabling amendment to the City Charter, I prepared and sent out hundreds of pieces of mail matter to numerous Los Angeles organizations of many kinds, and to a good many individual citizens. This mailing was finished in February, 1949. On March 15, 1949, I filed with the City Clerk a Proposed Enabling Charter Amendment. On March 29, 1949, I was in the Council chamber when our request came before the City Council, but it refused even to let the electors vote on our proposal, although it was purely enabling * * *, thus our expectation of relief through the City Council was ended”.

Affiant then avers that he was referred to an attorney who agreed to confer with him. Such conferences, according to affiant resulted in advice to “make a motion for the recall of the remittitur”. Affiant then avers that he was advised to prepare a full history of the case which he presented to the attorney in April of 1950. Finally, however, affiant avers that the business of the attorney was such that he found himself unable to undertake the task of preparing a motion to recall the remittitur. Affiant then wrote letters to the Los Angeles Bar Association and the Lawyers Club of Los Angeles, “asking them to name three to five of their members who have had the experience of making a motion for the recall of a remittitur, or are familiar with such a procedure”. Replies to these letters indicated that the respective organizations “had no committee to which this matter could be appropriately referred”, or had “no way of finding out which attorneys have had that experience”. According to his affidavit, affiant continued to prepare “some supplementary notes to my more elaborate notes”, and on August 28, 1950, “I was able to obtain Southwestern's present attorney”. In view of the foregoing, which is but an epitome of the activities of appellant through its president, we are not impressed that the delay in filing the instant motion can be characterized as unexplained.

Having in mind the rule that a remittitur will not be recalled unless the matters relied upon by the moving party would have compelled a different result had they been considered by the reviewing court, In re McGee, supra, 37 Cal.2d at page –––, 229 P.2d at page 782, upon an examination of the matters contained in the motion to recall the remittitur herein and which matters were not before us on the appeal, we find considerable in them to shake our confidence in both the correctness and justice of our former ruling.

We wish here to emphasize that cases are rare when the remedy of recalling the remittitur is available. The few cases on the subject attest to the fact that it is an extraordinary remedy, never to be utilized to obtain a review by appellate tribunals of their own judgments. As heretofore stated, this court has no appellate jurisdiction of its own judgments. It is only in those isolated cases where the judgment of an appellate court and the consequent sending down of the remittitur has been accomplished “by fraud or imposition, or where the court has been led astray so as to decide the case under a misapprehension as to the true facts”, Isenberg v. Sherman, supra, 214 Cal. at page 725, 7 P.2d 1006, 1007, that a motion to recall the remittitur will be considered, such consideration being predicated solely upon the theory that under the circumstances just referred to, the court has never lost jurisdiction.

The remittitur is recalled and the cause placed on calendar for argument and hearing November 27, 1951, as to why, pursuant to section 956a of the Code of Civil Procedure, this court should not make findings of fact contrary to and in addition to those made by the trial court, such findings to provide that respondent city is holding in trust for appellant the right to fill the space in the Blue Diamond Pit outside of the slopes of the fill for the extension of Washington Boulevard in the City of Los Angeles, and that respondent city must return such right to appellant, or in lieu thereof, pay to appellant the value thereof.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.

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Docket No: No. CIV. 14899.

Decided: September 12, 1951

Court: District Court of Appeal, Second District, Division 1, California.

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