MAXWELL v. CITY OF SANTA ROSA (1959)

This is an appeal from a judgment of dismissal entered after plaintiffs failed to amend their third amended complaint following the sustaining of a demurrer thereto.

Under the provisions of Articles I and IV of Chapter 5 of the Improvement Procedure Code of the City of Santa Rosa, the city council of said city adopted a resolution of preliminary determination and of intention to improve a portion of Pacific Avenue within the City of Santa Rosa. The resolution, a copy of which is attached to the complaint, stated that the improvements were of more than local or ordinary public benefit and that the cost and expenses thereof were to be charged upon an assessment district therein described and declared to be benefited by said improvements and that serial bonds were to be issued to represent any unpaid assessments. The resolution, among other things, direced the city engineer to make and file with the clerk of said city ‘a proposed assessment of the total amount of the cost and expenses of the proposed improvements upon the several subdivisions of land in said district in proportion to the estimated benefits to be received by such subdivisions, respectively, from said improvements, * * *.’ It is alleged in the complaint as amended that after the city engineer prepared and filed his report, a majority of the property owners within the assessment district filed protests in the matter and in the time required by the notice of improvement; that a hearing was held, but without any investigation of the matter set forth in said protests the city council overruled said protests, approved the report of the city engineer and the assessments and ordered that the work of constructing the improvements be done.

By their action plaintiffs seek a declaration that the proceedings were void and ask for an injunction to prevent enforcement of the assessments against their lands to cover the costs and expenses of said improvement. The basis of their third amendment to the complaint is that the city engineer and the city council in determining and preparing the assessment perpetrated a fraud upon plaintiffs.

The question before this court is whether or not the complaint states a cause of action for certiorari or mandamus. The rule is that where a municipal corporation with valid authority to do so holds a public hearing and makes a quasi judicial determination with reference to a matter which it is vested with power to determine, the method of review is by certiorari or mandamus, in which the issues are limited. Nathan H. Schur, Inc. v. City of Santa Monica, 47 Cal.2d 11, 300 P.2d 831. Under the provisions of Section 1094.5 of the Code of Civil Procedure (mandamus) the inquiry is limited to determine whether or not the respondent has proceeded without or in excess of jurisdiction, whether there has been a fair trial, and whether there was a prejudicial abuse of discretion. The section provides: ‘Abuse of discretion is established if the respondent has not proceeded in the manner required by law, * * *.’ All of the contentions plaintiffs sought to raise are properly reviewable in mandamus. Fascination, Inc. v. Hoover, 39 Cal.2d 260, 246 P.2d 656.

Where, as here, jurisdiction of the council is not attacked, its decisions as to the amount and apportionment of the assessment are conclusive in the absence of fraud. As stated in Hannon v. Madden, 214 Cal. 251, 257, 5 P.2d 4, 6:

‘* * * Where an appeal has been taken to the council, its decision may be attacked in a legal proceeding only upon pleading and proof that the board acted fraudulently or that its action is so palpably unreasonable and arbitrary as to raise an inference of plain abuse of discretion as a matter of law. Cutting v. Vaughn, 182 Cal. 151, 187 P. 19; Spring Street Co. v. City of Los Angeles, 170 Cal. 24, 148 P. 217 L.R.A.1918E, 197; Lambert v. Bates, 137 Cal. 676, 70 P. 777; Hutchinson Co. v. Coughlin, 42 Cal.App. 664, 184 P. 435.’

In determining the issue of fraud, we must examine the factual allegations of the complaint in the light of the cardinal rule of pleading that fraud must be pleaded in specific language descriptive of the acts which are relied upon to constitute the fraud. It is not sufficient to allege fraud in general terms, or in terms which amount to mere conclusions. Hannon v. Madden, supra, 214 Cal. at page 267, 5 P.2d at page 10.

Plaintiffs allege generally in the complaint as amended that the defendants have perpetrated a fraud on plaintiffs and have oppressed plaintiffs and have ‘fraudulently, in bad faith, arbitrarily, illegally, unjustly and unreasonably deprived them of their property and property rights, and have violated their constitutional and statutory rights.’ More specifically, it is alleged that the city council fraudulently and arbitrarily determined that it should pay only 25% of the estimated cost of said improvements; that no investigation was made by the city council or its duly authorized officers, including the city engineer in the preparation of his report, as to the nature and extent of any benefits or lack of benefits to the property owned by plaintiffs resulting from the intended work and improvement in determining the proposed respective assessments levied upon the properties of the plaintiff; that the city engineer fraudulently failed to perform his duty of investigation; that the city council knew that the city engineer had not made any investigation and that, although the matter was brought to the council's attention by plaintiffs' protest, the council, nevertheless, without any investigation of the matter and without considering the benefits or lack of benefits to their property, arbitrarily adopted the city engineer's report and levied assessments against plaintiffs' property for 75% of the cost of said improvements. There is the further allegation that the city engineer's report resulted in favoritism, collusion and discrimination and that plaintiffs were assessed for $53,756.88 of the estimated $62,148.69, cost of the improvement, whereas the street, being a thoroughfare and main artery of travel, gave greater benefit to the public than to the plaintiffs.

It was further alleged that the enactment of the resolution of intention was passed solely to comply with legal requirements in form only; that the members of the council had no intention of giving any consideration to protests that might be submitted; that the members have predetermined to vote the levy of the assessments; that they only intended to give a pretense of the hearing and because of their predetermination could not and did not give consideration to the protests filed; that the council had in fact instructed the engineer in advance of his report to propose a levy of asessments in accordance with the council's predetermined plan. The complaint sufficiently stated a cause of action based on fraud.

When the council refused to decide upon the merits the objections urged against the assessments, and instead thereof wilfully based its order upon illegal considerations which were inconsistent with making the assessments in proportion to the benefits to be derived from the improvements their action was arbitrary and in effect amounted to a fraud upon the rights of the plaintiffs. Nutting v. City of Los Angeles, 35 Cal.App. 519, 526, 170 P. 680. The action of the council deprived plaintiffs of their right to a just and fair hearing. We must here, of course, accept as true all well-pleaded allegations found in the complaint.

Defendants' principal ground of demurrer was that the complaint failed to state a cause of action and the demurrer to the complaint was apparently sustained upon that ground since the other ground, that is, that the complaint was ambiguous, unintelligible and uncertain for stated reasons, clearly has no merit. It is also apparent that the trial court did not consider the complaint a petition for a writ of mandamus or review.

The complaint in form is simply a complaint in a civil action. Plaintiff's seek a declaration that the proceedings were void and an injunction to prevent the enforcement of the assessments against their land to cover the cost of the proposed improvements. For this relief an ordinary civil action is inappropriate. As stated in Boren v. State Personnel Board, 37 Cal.2d 634, 637, 234 P.2d 981, 982:

‘Since the enactment of section 1094.5 of the Code of Civil Procedure, it is no longer open to question that in this state the writ of mandamus is appropriate ‘for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer * * *.’'

The proceedings in the instant case, in connection with the assessment, were clearly of the type contemplated by section 1094.5 of the Civil Code of Procedure and the writ of mandamus will, therefore, lie to review the council's decision. And as further stated in Boren v. State Personnel Board, supra:

‘* * * As against a general demurrer * * * it is unimportant that plaintiff's pleading was not in form a petition for mandamus or certiorari. All that is required is that plaintiff state facts entitling him to some type of relief, and if a cause of action for mandamus or certiorari has been stated, the general demurrer should have been overruled. [Citing cases.]’

The judgment is reversed and the trial court is ordered to overrule the demurrer to the complaint as amended.

WARNE, Justice pro tem.

VAN DYKE, P. J., and PEEK, J., concur.