BARLOW v. CITY COUNCIL OF CITY OF INGLEWOOD (1948)

This litigation was commenced through the filing of a petition for a writ of mandate. There are two appeals in the case. Respondents in the trial court have appealed from the order made therein, vacating judgment, vacating decision, and granting petitioner in the trial court leave to file second proposed amended petition for writ of mandate. The petitioner in the trial court has appealed from the judgment. In the interest of clarity we shall in this opinion designate respondents in the lower court as ‘respondents', and the petitioner in the lower court as ‘petitioner’.

With respect to respondents' appeal from the order vacating the judgment, vacating the decision, and granting leave to petitioner to file his second proposed amended petition, the facts are as follows:

The original petition for writ of mandate was filed February 4, 1946. Respondents filed their demurrer on February 21, 1946, upon the grounds: (a) that both the first and second causes of action of the petition did not state facts sufficient to constitute a cause of action against respondents or either of them; (b) that the proceedings in both purported causes of action were barred by the provisions of sections 337 and 338, Civil Code of Procedure, and by the provisions of section 8701, Streets and Highways Code (formerly section 11, subdivision (a), of the Improvement Bond Act of 1915).

The demurrer was overruled on March 8, 1946. On June 28 of the same year, the cause was duly called for trial, opening statements were made to the court, and the respondents thereupon renewed their demurrer and objected to the introduction of any evidence upon the foregoing grounds as set forth in said demurrer. The trial court thereupon sustained said demurrer to the evidence without leave to amend. Petitioner made no request to the court for leave to amend. The judgment was signed and filed by the trial on July 2, 1946, and was entered July 5. Notice of entry of judgment was served on July 17, 1946. Fifteen days after the judgment was signed, petitioner filed his notice of motion to set aside ruling on demurrer and for leave to file amended petition. The proposed amended petition was filed July 24, 1946. The trial court, on the same day, denied said motion.

On August 8, 1946, petitioner filed his notice of motion to set aside judgment, to set aside ruling on demurrer, and for leave to file proposed amended petition for writ of mandate. This motion was based only upon the records and files of this action and the authorities as therein set forth. The notice of motion contained no statement as to the ground upon which the same was made and no affidavits were filed in support of the motion. On August 23, 1946, the court by minute order granted the motion.

It is from that order that respondents prosecute their appeal herein. They contend that the court was without power to vacate the judgment rendered, to vacate the decision, and to grant leave to petitioner to file amended petition for writ of mandate. This contention is well taken.

Petitioner's notice of motion did not state the grounds upon which the same was made, other than to state that the same would ‘be based upon the records and files in the above entitled action and on the points and authorities hereinafter set forth’. No affidavits were filed. Other than a citation of authorities to support his claim that the judgment was erroneous, the only other theory advanced upon which the motion was made, is the citation in the ‘points and authorities' accompanying the notice of motion, of section 473 of the Code of Civil Procedure. No showing was made of mistake, inadvertence, surprise, excusable neglect, clerical error, or that the judgment as entered did not express the actual judicial intention of the court at the time it was rendered and signed. The judgment was not void.

We are satisfied that the instant case presents an attempt to correct judicial error. Where, as here, all of the matters before the court at the time of the making of the order appealed from had been considered by the court at the time of the rendition of the judgment, it cannot, simply because upon a re-examination of the same matters it has reached a different conclusion, give effect to the second determination of the same issue by annulling or setting aside the original judgment. While a court has power to set aside judgments and orders inadvertently made which do not actually result from the exercise of judgment, it is without power to correct judicial error other than by recourse to appropriate statutory procedure. The case at bar does not present a situation wherein the judgment as entered by the clerk was not the judgment rendered by the court; where the court failed to express its intention by the judgment actually rendered; where there was an irregularity which made the judgment premature; nor where the court was in ignorance of some fact material to the action taken by it.

Apparently, the court, in granting the motion herein, arrived at the conclusion that it had made an error in the exercise of judgment. But the error, being a judicial one, is not subject to change by the trial court in the manner indicated by the record before us. The order appealed from by respondents must therefore be reversed. McMahan v. Baringer, 49 Cal.App.2d 431, 432, 122 P.2d 63, and cases cited therein.

The second appeal is by petitioner from the foregoing judgment in favor of respondents which the court erroneously vacated and set aside.

The question presented is whether the trial court erred in sustaining the respondents' demurrer to petitioner's petition upon the grounds above set forth.

Petitioner's action was one to compel the officials of the City of Inglewood in Los Angeles County to comply with the claimed requirements of section 12 of the Improvement Bond Act of 1915, now sections 8800 and 8802–8807, inclusive, Streets and Highways Code. The Improvement Bond Act of 1915 was repealed prior to the commencement of this action, and Division 10, Streets and Highways Code, which 4, 1941. Because there appears to be no 4, 1941. Because there appears to be no material change of the statutes as contained in section 12 of the Improvement Bond Act of 1915 and the present applicable sections 8800–8807, Streets and Highways Code, we shall hereinafter refer to said section.

Having concluded, as aforesaid, that the order of the trial court vacating the judgment rendered in favor of respondents upon petitioner's original petition for a writ of mandate must be reversed, it necessarily follows that a consideration of petitioner's appeal herein must be confined to his original petition.

In the first cause of action of his original petition for a writ of mandate, petitioner alleged that on May 3, 1926, the City of Inglewood issued certain street improvement bonds to defray the expense of improving certain public highways within said municipality, pursuant to the terms and provisions of the ‘Improvement Bond Act of 1915’. Attached to the petition as exhibits are several bonds owned by petitioner together with a statement of the amount of payments theretofore made upon the matured interest and the unpaid principal, and interest due upon said bonds; that ‘interest has accrued and will continue to accrue upon the principal of said bonds at the rate of 7% per annum from and after July 2, 1945, until paid’. That all the improvement bonds were then due and unpaid with interest therecon at the rate of 7% per annum from the date of maturity until date of payment. It is then alleged that if there is insufficient money to pay the matured interest and principal due on any of said bonds, that pursuant to the provisions of section 12 of the ‘Improvement Bond Act of 1915’ it is the duty of the duly authorized officials of said municipality to ‘transfer all surplus moneys in the general fund of the city to the said Bond Redemption Fund’. There is then set forth the amount of the unpaid assessments due in the assessment district encumbered by the bonds, and the years in which the same became due. That pursuant to section 3756 of the Political Code and section 4103 of the Revenue and Taxation Code of the State of California, the foregoing assessments bear interest and penalties as the rate of one percent per month for a period five years after the date of delinquency, and further interest and penalties from and after said five years at the rate of 1/2 of one percent until paid; that all of said assessments together with interest and penalties thereon were due and wholly unpaid.

It is then alleged that an auditor's report filed on October 9, 1945, in the office of the Clerk of the City of Inglewood, disclosed that as of said date, the municipality had an unencumbered current surplus in the amount of $301,581.57 on June 30, 1945; that at the time of filing of the petition herein there was an unencumbered current surplus in excess of $250,000 in the surplus fund of said city, and that said unencumbered current surplus is money in excess of all charges due or to become due in the fiscal year 1945–1946; that said unencumbered current surplus constitutes ‘available funds' within the meaning of section 12 of the ‘Improvement Bond Act of 1915’.

The second cause of action proceeds upon the same theory as does the first, except that it is based upon an issuance of Street Improvement Bonds on August 2, 1926, to defray the cost of improving highways within said city other than those mentioned in the first cause of action.

We are persuaded that petitioner's original petition is fatally defective in that it does not contain allegations sufficient to bring it within the purview of section 12 of the ‘Improvement Bond Act of 1915’ (now sections 8800 and 8802–8807 of the Streets and Highways Code).

Insofar as here pertinent, sections 11 and 12 provide:

(1) The assessments shall be liens upon specific parcels of real property situated within the assessment district;

(2) Upon default in the payment of any installment of principal or interest in any assessment, the land securing such installments shall be sold in the same manner in which real property in such city is sold for the nonpayment of general city taxes;

(3) In cases where the municipal property tax is collected by county officials (which is the case as to the assessments and taxes levied by the City of Inglewood) the State shall be the purchaser of the lands so sold for delinquent assessments but it holds the title acquired at such sale upon behalf of the city;

(4) If there are no available funds in the treasury with which to make payment of the amount of the delinquent assessment and interest for which the property was sold, demand shall be made upon the city to levy a tax as provided by section 16, subdivision (a) of the Improvement Bond Act of 1915 (now section 8809 of the Streets and Highways Code) for the purpose of providing funds with which to make such payment; and

(5) In the event such purchase is made by the municipality and any succeeding installments of assessments become delinquent, the city shall, from time to time when due, pay and transfer to said redemption fund the amount of any such future delinquent assessments.

From the foregoing it is manifest that the obligations of the city under the ‘Improvement Bond Act of 1915’ do not arise until the property is sold to the State for nonpayment of taxes or assessments. The allegation of the original petition that there are unpaid assessments in the district will not suffice because, even though the city did make the advancement of funds in a sum equal to all future delinquent assessments, and further assuming that such funds were used from the redemption fund to pay in full all outstanding bonds, nevertheless, such assessments would continue to be delinquent and unpaid as alleged in the original petition, and would so remain until a resale was made by the city or the property redeemed and from such resale or collections the city was reimbursed for such advancement. That the method employed by the statute is an advancement or loan of funds only, which the city may normally be expected to recover upon resale of the land procured at the delinquent sales, and is not a payment of the assessments, was the holding in American Co. v. Lakeport, 220 Cal. 548, 562, 32 P.2d 622; and Hammond v. City of Burbank, 6 Cal.2d 646, 656, 59 P.2d 495.

In the original petition for a writ of mandate now before us, there is no allegation (a) that any parcels of property were tax sold to the State for either nonpayment of taxes or assessments; (b) that the city did not transfer into the redemption fund a sum equal to all delinquent assessments on tax sold properties purchased by it; (c) that there is not sufficient money in the redemption fund to pay petitioner's bonds in full; and (d) that the city at the time of the filing of the petition, or at the time of the hearing, or at any time, had any available funds raised by taxation.

By reason of the foregoing it must be held that the court, in the absence of any request by petitioner for leave to amend, did not err in sustaining respondents' demurrer to the evidence without leave to amend, and in sustaining respondents' objection to the introduction of any evidence under the original petition. (Section 12, Improvement Bond Act of 1915, now sections 8800 and 8802–8807, inclusive, Streets and Highways Code; American Co. v. Lakeport, supra; Hammond v. City of Burbank, supra.)

The foregoing conclusions at which we have arrived renders it unnecessary to discuss or decide respondents' claim that petitioner's petition, and both causes of action therein pleaded, are barred by the provisions of sections 337 and 338 of the Code of Civil Procedure, and by section 8701, Streets and Highways Code, formerly section 11, subdivision (a), Improvement Bond Act of 1915.

For the reasons herein stated, the order of August 23, 1946, entered August 28, 1946, vacating the judgment, vacating the decision and granting leave to petitioner to file his second proposed amended petition, is reversed. The judgment entered July 5, 1946 is affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.