McGEE v. CITY OF LOS ANGELES (1935)

Appellant brought this action against the city to recover the amount of a judgment awarded to him in a condemnation action. His amended complaint alleged that although the condemnation action had been abandoned by the city, it was liable to him for the amount of the judgment because of a certain stipulation which had been entered into concerning the value of a building sought to be condemned and his demolition of the building thereafter “on orders from the said defendant city.” The general demurrer of the city was sustained without leave to amend, and the appeal is from the judgment subsequently entered.

The question presented on appeal concerns the effect of the stipulation. The appellant claims that it amounts to an agreement by the city to purchase a building owned by him for an amount payable in installments, the first installment to be the amount of a judgment agreed upon in one condemnation action, the second installment to be the amount of the judgment agreed to be entered in another action. The city paid the amount of the first judgment, but abandoned the proceedings in which the second judgment was entered. It asserts that the stipulation goes no further than to fix the value of appellant's building by agreement rather than by evidence presented to the court, and that appellant is in exactly the same position as any property owner whose property is condemned in proceedings which are later abandoned after interlocutory judgment.

The building in controversy was located on the corner of Olive street and Venice boulevard in the city of Los Angeles. The respondent city proposed to widen each street, and brought an action to take a strip of the land owned by appellant facing Olive street and on which a portion of his building was situated. At the same time the respondent city announced that it would shortly bring another action to take a strip of land along Venice boulevard for the widening and straightening of that street. By this latter proceeding the city proposed to take a portion of appellant's land facing Venice boulevard with that part of his building located thereon.

In the course of the trial of the Olive street action, it was stipulated between appellant and the city that the proposed improvements would destroy appellant's building beyond the possibility of practical repair and reconstruction. It was further stipulated that the value of the building was $58,777 and that this amount should be awarded appellant in two sums, $44,083 in the Olive street action and $14,694 in the Venice boulevard action to be thereafter commenced. The Olive street action was prosecuted to final decree and respondent city paid appellant the stipulated award therein. The Venice boulevard action proceeded to interlocutory decree. Thereafter it was abandoned. In the meantime, however, appellant had entirely removed his building and erected another built to the property lines as the city proposed to establish them in the two actions. This suit was brought to recover the sum of $14,694 which by the stipulation was to be awarded to appellant in the Venice boulevard action.

The stipulation which is the basis of the controversy was entered into between the deputy city attorney in charge of the Olive street action and appellant's then attorney. It recites that:

“Whereas, the improvements and conditions herein described will destroy said brick building beyond practical repair and reconstruction, and it appears that the least expensive and most practical solution is the purchase of the said building by the City of Los Angeles, a municipal corporation, plaintiff in this action, and its removal entirely; and

“Whereas, the said building will probably be removed by the proceedings in the above entitled action before Referees or Court make an award to this defendant for the damage caused the defendant in the action for the opening, widening and straightening * * * of Venice Boulevard from Main Street to Figueroa Street, and it is intended by stipulation to fix the damage in each of said actions so that the plaintiff may proceed at once in the improvement contemplated in the above entitled action, to-wit, action No. 201340; and

“Whereas, the value of said building is hereby agreed to be the sum of $58,777.34, * * *

“Now, Therefore, it is hereby stipulated, in view of the foregoing facts, all of which are made a part of this stipulation, that in the above entitled action No. 201340, the defendant William M. McGee shall be awarded the sum of $44,083.00 as the damage accruing to him by reason of the removal of said building, and that in the action * * * for the widening and straightening of Venice boulevard from Main Street to Figueroa Street, which action is not yet filed, but it is contemplated will soon be filed, the defendant shall be awarded the sum of $14,694.34 as the damage accruing to him by reason of the removal of said building.”

Appellant relies upon this stipulation as a contract by the city for the purchase of his building, alleging in his complaint that immediately after the entry of the final decree of condemnation in the Olive street action “on orders from the said defendant city” he proceeded to and did entirely demolish his building.

In a condemnation action, the owner of land may agree with the agents of the condemnor as to the value of his property (Pool v. Butler, 141 Cal. 46, 74 P. 444), and may stipulate accordingly. “Such stipulations have always been regarded by the courts as establishing the facts stipulated and as taking the place of evidence with regard thereto.” City of Los Angeles v. Oliver, 102 Cal.App. 299, 332, 283 P. 298, 311. The trial court by its findings accepted the stipulated value of the buildings and made an award based on such value in each of the condemnation cases. The purpose of the stipulation had then been fulfilled. Appellant was awarded the total stipulated value of his building by the two decrees, but neither of them amounted to a contract for the purchase of the property. Pool v. Butler, supra. Certainly a stipulation fixing the value of property can have no more binding effect than the decree which awards a litigant that value. And the decree in the abandoned action was made pursuant to the Street Opening Act of 1903, p. 376, as amended (Deering's Gen. Laws, 1931 Ed., Act 8198, § 14), which provides that the condemnor “may, at any time prior to the payment of the compensation awarded the defendants, abandon the proceedings.” Upon abandonment of condemnation proceedings, there is no liability upon the condemnor for the payment of any award. Lamb v. Schottler, 54 Cal. 319.

Appellant insists that the city is estopped to deny its contract with him after he has acted thereon. While estoppel may be invoked against a municipal corporation in exceptional cases where justice and right require [Times-Mirror Co. v. Superior Court (Cal.Sup.) 44 P.(2d) 547; City of Los Angeles v. Cohn, 101 Cal. 373, 35 P. 1002], no facts constituting estoppel are pleaded. The only suggestion in the complaint of any acts on the part of the city which might constitute an estoppel is that the building was demolished by the appellant “on orders from the said defendant city.” This is a conclusion of law. “That a plaintiff, whose cause of action is based upon an estoppel, must plead the facts constituting the estoppel is clearly the law.” Fritz v. Mills, 12 Cal.App. 113, 116, 106 P. 725, 726.

In a second cause of action, appellant alleged that the city is indebted to him upon an implied contract. The city did not take any property of the appellant nor receive any benefit from the demolition of his building. A city cannot be held liable upon an implied contract under the facts shown in this case. Nash v. City of Los Angeles, 78 Cal.App. 516, 248 P. 689.

The judgment is affirmed.

EDMONDS, Justice pro tem.

I concur: YORK, J. I dissent: HOUSER, P. J.