OCEAN PARK PIER AMUSEMENT CORPORATION v. CITY OF SANTA MONICA (1940)

In the petition for rehearing, it is stated at page eighteen: “It is the desire of the respondent city to have the entire franchise declared void if the Court feels that it does not have authority to enter into it in its entirety.” This point, according to the record, was not presented on the trial of the case, nor was it presented by way of printed briefs on appeal; it was touched upon only incidentally in the oral argument in connection with the main issue; and it is well settled that a rehearing will not be granted for the sole purpose of considering a point presented therein for the first time. Pasadena Ice Co. v. Reeder, 206 Cal. 697, 705, 275 P. 944, 276 P. 995; Conner v. East Bay Municipal Utility Dist., 8 Cal.App.2d 613, 619, 620, 47 P.2d 774, 48 P.2d 982.

Furthermore, in view of the point now urged by counsel for respondent, raising the legality of the entire franchise, we deem it proper to say that subsequent to the submission of the appeal for determination the justices of this court in conference caused a letter of inquiry to be sent to counsel representing the respective parties, to ascertain their views upon the question of whether on the record before us we were called upon to consider or determine any issue as to the validity of the entire franchise in the event this court should reach the conclusion that the city had no power to collect the two per cent of appellant's income derived from the privately owned lands; and in this connection it was stated that if counsel desired to brief the point and to re-argue it, the submission would be set aside. In response to such inquiry counsel for appellant expressed himself unequivocally that since no issue as to the validity of the entire franchise was raised by the pleadings, nor presented to or heard or determined by the trial court, such an issue was in no way involved within the scope of the present appeal. The reply received from counsel for respondent, however, was extremely indefinite. The pertinent portions thereof read: “It was my understanding that the only matter before your Court at the present time was one of interpretation of an ambiguity and not one of the validity of the contract. * However, if I am to understand from your letter that the Court feels that the question is raised as to the authority of the city to collect the gross per cent as is provided in the franchise, when it is shown that part of the property described is publicly-owned and part of it is privately-owned, then I believe that we are specifically confronted with the problem as to the illegality or invalidity of the franchise in its entirety. In this latter event, it is the desire of the city to raise the question of the illegality or the invalidity of the franchise and file briefs thereon. As to whether or not the city desires to raise issues which are not before the Court, I will have to await reply to this letter.”

Such being the nature of the replies received from counsel, the question of the validity of the entire franchise was not passed upon, but was specifically left open to be litigated by the parties if they so desired in the proper tribunal, namely, the trial court. Code Civ.Proc., secs. 588, 589, 591. The court in its opinion in this regard said, 104 P.2d 668: “No claim has been made that the franchise is void as containing two incongruous subjects (Washington Water Power Co. v. Rooney, Wash., 101 P.2d 580, 127 A.L.R. 1044), and we refrain from expressing an opinion in connection therewith. However, a new trial is granted which will give the parties an opportunity to apply to the superior court for permission to amend the pleadings should they deem such action advisable.”

It is hereby ordered that the letters above referred to be filed with the clerk of this court.

The rehearing is denied.

PER CURIAM.