CITY AND COUNTY OF SAN FRANCISCO v. PADILLA (1971)

Plaintiff, City and County of San Francisco, appeals from a judgment in favor of defendants in an action seeking to abate a public nuisance and for injunctive relief against defendants.

Defendants, owners of real property located in San Francisco, filed an application in March 1964 with the Central Permit Bureau of the Department of Public Works of said City for a permit to construct a building containing 15 dwelling units and 15 off-street parking spaces. The parcel upon which said building was to be constructed was 145 feet long and 42 feet wide and was zoned under a classification known as R–3. The Department of City Planning approved the application for such building permit and a permit for the construction of said building was issued by the Department of Public Works on July 21, 1964.

During the course of construction a building inspector discovered that additional rooms were being constructed in the basement area of said building. These rooms were not shown on the original application for the building permit. Defendants then applied for an alteration permit. As a condition for the issuance of such permit defendants agreed to and did record with the county recorder a statement specifically providing that the additional basement rooms were not to be used for dwelling purposes and that the building was not to be used for more than 15 dwelling units authorized under the original permit. Accordingly, a permit was issued for the construction of the additional basement rooms for storage purposes.

Sometime in 1967 a building inspector discovered that the subject area was being used for two dwelling units. Defendants were told to remove the two dwelling units or to file an application to legalize such units. Defendants then filed such an application with the Central Permit Bureau of the Department of Public Works and it was referred, among other City departments and bureaus, to the Department of City Planning for approval. In August 1967 the Department of City Planning advised defendants that it could not approve such application because it was in conflict with the density provisions of the City Planning Code. Defendants were advised, specifically, that said application exceeded by two units the number of dwelling units authorized by the original building permit and that no off-street parking was provided for the additional units as required by the City Planning Code. Defendants were also advised that since the issuance of the original building permit the Planning Code had been amended to limit a building on defendants' parcel to eight units and that with the construction of the proposed additional units the building would contain more floors than permitted by the Planning Code. Defendants were further advised that they should seek a variance from the requirements of the Planning Code pursuant to the procedures provided for variance in the Planning Code.

The Department of City Planning also communicated its disapproval to the Department of Public Works. Based on such disapproval the Department of Public Works denied the application for the construction of the additional two dwelling units. Defendants then appealed such denial to the Board of Permit Appeals (hereinafter referred to as ‘the Board’) which, under the provisions of section 39 of the charter of the City and County of San Francisco, is empowered to hear appeals from denial of a permit by the city department authorized to issue such permit. After a hearing, the Board overruled the denial of the alteration permit by the Department of Public Works and directed that department to grant and issue said permit with certain stipulations.

Plaintiff did not challenge the validity or propriety of the Board's decision and order pursuant to the direct review provided for in Code of Civil Procedure section 1094.5. That statute provides, in essence, for the review of administrative orders or decisions by a petition for writ of mandate. Instead of seeking such review plaintiff City filed an action seeking to abate, as a public nuisance, the maintenance of said alleged illegal dwelling units in defendants' building, and to enjoin such maintenance and continued use, on the ground that said units violated the provisions of the City Planning Code.¹ In their answer defendants pleaded, among other things, that the decision of the Board was final and that it was res judicata in the instant action.

The court denied the relief prayed for in plaintiff's complaint, stating as its reasons that the Board had jurisdiction to order the issuance of the subject permit and that the existence of a public nuisance had not been established. The court also made ‘Findings of Fact and Conclusions of Law.’ The court found that defendants had applied to the Department of Public Works for the subject alterations permit which said department denied; that said denial was appealed to the Board which overruled the denial upon findings of fact reciting essentially that defendants would be unwarrantedly penalized by such a denial because other older structures in the neighborhood exceeded the density requirements of the Planning Code and because such denial would cause defendants undue financial hardship; and that the Board had ordered the Department of Public Works to issue such permit. The court then concluded that the identical issues in the action before it were passed upon and decided by the Board; that such Board had jurisdiction to pass upon the application for the subject permit; that the Board's decision was final; that plaintiff did not avail itself of the proper legal procedure by which to review the decision of the Board; that the decision of the Board was res judicata; that the trial court, accordingly, did not have jurisdiction over the subject matter of the instant action; and that no public nuisance had been established. Judgment was thereupon entered in favor of defendants.

Plaintiff contends that the decision of the Board was not a bar to its complaint in injunction since the zoning administrator of the Department of City Planning was entrusted with the primary duty to enforce the provisions of the Planning Code. In order to place this contention in proper focus we proceed to consider briefly the pertinent code and charter provisions of the City and County of San Francisco.²

Under the Public Works Code all applications for the construction and alteration of a building must be filed with the Central Permit Bureau of the Department of Public Works, and upon the approval of all interested city departments and bureaus the Central Permit Bureau is required to issue the permit applied for. (Art. 1, §§ 1 and 2.) Pursuant to the provisions of the City Planning Code no application for a building construction or alteration permit can be approved by the Department of City Planning, nor can such a permit be issued by any city department which would authorize the use or change in any use of land or building contrary to the provisions of the Planning Code. (§ 110.) Under the Planning Code the zoning administrator is empowered to enforce the provisions of the Planning Code and among the methods of enforcement is the maintenance, through the city attorney, of an action for injunction to restrain or abate as a public nuisance any use or feature in violation of the Planning Code. (§§ 307, 309.) It is further provided in the Planning Code that any permit which is issued and is not in conformity with the provisions of that code is null and void. (§ 309, subd. (a).)

Under section 39 of the charter ‘Any applicant for a permit * * * who is denied such permit * * * by the department authorized to issue same * * * may appeal to the board of permit appeals.’ That section provides further, in pertinent part, that ‘Such board shall hear the applicant, * * * or other interested parties, as well as the head or representative of the department issuing or refusing to issue such * * * permit, * * *. After such hearing * * * it [the board] may concur in the action of the department authorized to issue such * * * permit, or, by the vote of four members, may overrule the action of such department and order that the permit * * * be granted, * * *.’

In the instant case defendants did not seek a variance from the strict application of the quantitative standards of the Planning Code when they were advised by the Department of City Planning that the additional units were in violation of the density provisions of the code. Instead they sought to challenge the denial of the alteration permit by the Department of Public Works through the appellate procedure provided for in section 39 of the charter. Accordingly, we are not here concerned with the provisions of section 117.3 of the charter and former section 303 (now § 308.2) of the Planning Code which provide for the determination of appeals relating to variances. Our inquiry is directed to the applicability to and the effect upon the instant case of section 39 of the charter which deals solely with the appeal powers of the Board as to the granting or revoking of licenses and permits. (See Cow Hollow Improvement Club v. Board of Permit Appeals, 245 Cal.App.2d 160, 169–170, 53 Cal.Rptr. 610.)

It is well settled that the Board, in the exercise of its appellate jurisdiction, is invested with complete power to hear and determine the entire controversy before it, is free to draw its own conclusions from the conflicting evidence before it and in the exercise of its independent judgment in the matter to affirm, modify or overrule the action of the subordinate agency or official at the primary level. (City and County of S. F. v. Superior Court, 53 Cal.2d 236, 248, 1 Cal.Rptr. 158, 347 P.2d 294; Lindell Co. v. Board of Permit Appeals, 23 Cal.2d 303, 313–314, 144 P.2d 4; Iscoff v. Police Commission, 222 Cal.App.2d 395, 409, 35 Cal.Rptr. 189; Board of Permit Appeals of City & County of San Francisco v. Central Permit Bureau, 186 Cal.App.2d 633, 640, 9 Cal.Rptr. 83; Cow Hollow Improvement Club v. Board of Permit Appeals, supra, 245 Cal.App.2d 160, 169, 53 Cal.Rptr. 610.) In sum, de novo review by the Board is an integral part of the entire permit procedure. (Russian Hill Improvement Assn. v. Board of Permit Appeals, 66 Cal.2d 34, 38, 56 Cal.Rptr. 672, 423 P.2d 824.)

In considering the action taken by the Board, two elementary rules come into play: first, the Board is bound by the relevant law as enunciated by the charter, ordinances, and controlling court decisions, and it must exercise a lawful discretion applied to the facts in evidence (City and County of S. F. v. Superior Court, supra, 53 Cal.2d 236, 250–251, 1 Cal.Rptr. 158, 347 P.2d 294; Board of Permit Appeals of City & County of San Francisco v. Central Permit Bureau, supra, 186 Cal.App.2d 633, 640, 9 Cal.Rptr. 83; and see Plum v. City of Healdsburg, 237 Cal.App.2d 308, 317, 46 Cal.Rptr. 827); second, when it does take certain action a presumption arises that the existence of the necessary facts has been ascertained and found. (City and County of S. F. v. Superior Court, supra, 53 Cal.2d at p. 251, 1 Cal.Rptr. 158, 347 P.2d 294; Board of Permit Appeals of City & County of San Francisco v. Central Permit Bureau, supra, 186 Cal.App.2d at p. 642, 9 Cal.Rptr. 83.)

In the present case defendants were denied an alteration permit and they took an appeal from that denial to the Board. The proceedings before the Board were apparently conducted in the manner required by the charter. Hearings were held, but the nature and extent of the evidence adduced before the Board does not appear in the record before us other than the fact that a site inspection of the subject property was made by the Board members. The Board's findings of fact indicate, however, that its decision to overrule the order of the Department of Public Works denying the permit and directing the Department to issue the permit was based on a site inspection and the Board's ‘opinion’ that overruling the denial of the permit ‘would not be inimical to the public health, safety and welfare of the people of San Francisco.’ The findings of the Board recognize that the ‘Disapproval of the permit by the Zoning Administrator was based on the objections that the legalization of the two units would be contrary to the density requirements of the City Planning Code and, secondly, insufficient parking facilities.’ The findings then recite that upon the site inspection the members of the Board ascertained that five tenants did not own cars; that, therefore, ample parking spaces existed; and that a number of other dwellings in the immediate area had no parking facilities whatsoever. With respect to the matter of density, the findings recite that ‘* * * it was our judgment that many of the older structures in the neighborhood exceeded the density requirements of the Code and to deny the appeal on this basis would be an unwarranted penalization of the property owner.’ The ‘findings' then conclude that the ‘Failure of the Board to act in this case would cause the property owner undue financial hardship’ and that ‘The structure, a modern three story apartment house, constructed in 1964, is a definite asset to the district, * * *.’

Since no review of the Board's decision has been sought by plaintiff, that decision is now final. The purport of that decision is that defendants are entitled to an alteration permit, presumably on the basis that such permit is not in violation of any of the City's ordinances. In the instant action, plaintiff, by seeking an injunction to enjoin defendants from maintaining the subject units for dwelling purposes, is, in essence, contending that such maintenance is in violation of the Planning Code. As already observed, the zoning administrator is empowered under the Planning Code to enforce its provisions by an action for injunction to restrain or abate as a public nuisance any use or feature of the Planning Code. The instant action, therefore, is either an attempt to ignore the prior decision of the Board, or, in effect, to collaterally attack it.

Plaintiff contends that the decision of the Board is not a bar to the present action because the zoning administrator has the primary duty to enforce the provisions of the Planning Code. This contention presupposes, of course, that defendants are violating the Planning Code and that they do not have a valid permit for the construction of the subject dwelling units. The instant action, therefore, appears to be in the nature of a collateral attack on the decision of the Board. Accordingly, our inquiry is directed to whether plaintiff is precluded from collaterally attacking the Board's decision in the form of a complaint for injunction. We are also directed to plaintiff's alternate contention that, in any event, the decision of the Board is illegal and invalid and therefore not binding upon the court below.

In proceeding to discuss the effect of the prior decision of the Board upon the instant injunction action we find that we are confronted with the principle of res judicata and the doctrine of excess of jurisdiction. Under the doctrine of res judicata parties to an action are precluded from relitigating a cause of action litigated by them or their privies if that cause of action has been finally determined by a court of competent jurisdiction, or from litigating any issue necessarily decided in such litigation. (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439; Solari v. Atlas-Universal Service, Inc., 215 Cal.App.2d 587, 592, 30 Cal.Rptr. 407; O'Hagen v. Board of Zoning Adjustment, 19 Cal.App.3d 151, 161, 96 Cal.Rptr. 484.)

With respect to the doctrine of excess of jurisdiction, our inquiry is directed to whether an act in excess of jurisdiction is subject to collateral attack. In this regard we observe that a court, board or tribunal having fundamental jurisdiction, i.e., jurisdiction of the cause and parties, may nevertheless be without jurisdiction or power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites, or to do something in excess of the authority possessed. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288–291, 109 P.2d 942; Brady v. Superior Court, 200 Cal.App.2d 69, 74, 19 Cal.Rptr. 243; Spreckels S. Co. v. Industrial Acc. Com., 186 Cal. 256, 260, 199 P. 8; 1 Witkin, Cal. Procedure (2d ed.) § 179, p. 706.) Such unauthorized acts are said to be acts in excess of jurisdiction by a court, board or tribunal having jurisdiction of the cause and the parties. (Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 291, 109 P.2d 942; Brady v. Superior Court, supra; Witkin, supra.) In Abelleira the principle is stated thusly: ‘Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.’ (Emphasis added; at p. 291, 109 P.2d at p. 948.)

Adverting to the principle of res judicata, we reiterate our observation in O'Hagen that ‘The application of the principle of res judicata in a given case depends upon the affirmative answer to the questions whether the issue decided in the prior adjudication was identical to the one presented in the subsequent litigation, whether there has been a final judgment on the merits and whether the party against whom the principle is invoked was a party or in privity with a party to the prior adjudication. [Citations.]’ (19 Cal.App.3d at p. 162, 96 Cal.Rptr. at p. 491.)

In the instant case we observe that defendants affirmatively pleaded the prior decision of the Board. Accordingly, since it was pleaded as new matter, such defense, if established, served as a complete bar to the present action if the cause of action determined in the proceedings before the Board is the same as that pleaded in the instant action, unless, of course, the decision of the Board was subject to collateral attack on the ground that it was void.

An analysis of proceedings before the Board and the instant injunction action discloses that each is predicated upon the same cause of action. ‘The essence of a cause of action is the existence of a primary right and one violation of that right, i.e., it arises out of an antecedent primary right and a corresponing duty, and a breach of such primary right and duty by the person upon whom the duty rests. [Citations.] The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. [Citations.] ‘The cause of action is simply the obligation sought to be enforced.’ [Citations.]' (Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 65–66, 42 Cal.Rptr. 473, 480.) The gist of the cause of action in both the proceeding before the Board and the instant injunction action is the claim that the subject dwelling units violated the provisions of the Planning Code. The obligation sought to be enforced is the obligation that no man may use his property in violation of the Planning Code.

We perceive, accordingly, that the issue in each of the proceedings is whether the subject dwelling units are legal. In the proceeding before the Board the legality of said units was determined by the Board's order that a valid permit be issued by the Department of Public Works for the construction of such units. In the instant action it is alleged that said units are illegal because they violate the zoning laws and that defendants do not and cannot have a valid permit for the construction of such units. Accordingly, the present action seeks to secure injunctive relief against the alleged zoning violation. Such relief may be obtained upon a showing of a violation of a valid zoning ordinance. (City etc. of San Francisco v. Burton, 201 Cal.App.2d 749, 757, 20 Cal.Rptr. 378; City of San Mateo v. Hardy, 64 Cal.App.2d 794, 797, 149 P.2d 307.)

We apprehend that there can be no question that the Board purported to render an adjudication on the merits prior to the filing of the action and that the parties to both proceedings are the same. Accordingly, under the principle of res judicata the prior final adjudication by the Board clothing the subject dwelling units with legality would be binding upon the court in this action if it can also be said that the prior adjudication was made by a judicial body of competent jurisdiction.

Plaintiff contends, essentially, that in ordering the issuance of the permit the Board, although it had jurisdiction of the subject matter and the parties, acted in excess of its jurisdiction because such order was clearly in violation of the Planning Code and, therefore, was void and subject to collateral attack.

The problem whether an act in excess of jurisdiction is subject to collateral attack is stated thusly by Witkin: ‘If there is jurisdiction of the subject matter and the parties, one who complains, of the act is usually before the court. He has an opportunity to object, or to have the judgment or order reviewed by the usual methods of direct attack, such as new trial or appeal. He may also in many situations use the extraordinary writs of prohibition, mandamus or certiorari to directly attack and prevent or annul the unauthorized act. In brief, there are adequate methods of direct attack on such judgments, and there is almost a presumption of negligence on the part of the aggrieved party who fails to seek these normal remedies and later raises the objection by collateral attack. [¶] If this analysis is sound, acts merely in excess of jurisdiction, by a court having jurisdiction of the subject matter and parties, should not be subject to collateral attack unless exceptional circumstances precluded an earlier and more appropriate attack. [Citations.]’ (1 Witkin, Cal. Procedure (2d ed.) § 223, at p. 757.)

Although there is authority that a judgment resulting from an act in excess of jurisdiction is subject to collateral attack because such a judgment is void (Tonningsen v. Odd Fellows' Cem. Assn., 60 Cal.App. 568, 571, 213 P. 710; Michel v. Williams, 13 Cal.App.2d 198, 56 P.2d 546; Texas Co. v. Bank of America etc. Assn., 5 Cal.2d 35, 39–40, 53 P.2d 127; Burtnett v. King, 33 Cal.2d 805, 807, 205 P.2d 657), the theory of these cases was abandoned, in favor of the approach suggested by Witkin, in Pac. Mutual Life Ins. Co. of California v. McConnell, 44 Cal.2d 715, 726–727, 285 P.2d 636. In Pacific Mutual it was held that where it is contended that a judgment is void because it was rendered in excess of jurisdiction collateral attack is ordinarily improper. (At p. 727, 285 P.2d 636.) Collateral attack, where the judgment is contrary to statute, is allowed only ‘where unusual circumstances were present which prevented an earlier and more appropriate attack,’ and where a contempt adjudication is based on the violation of an injunction or other equitable order made contrary to statute. (44 Cal.2d at p. 727, 285 P.2d at p. 642.) The latter situation falls in a special category because the proceedings are penal in nature. (44 Cal.2d at pp. 727–728, 285 P.2d 636; see Brady v. Superior Court, supra, 200 Cal.App.2d 69, 72–76, 19 Cal.Rptr. 242; 1 Witkin Cal. Procedure (2d ed.) §§ 227–228, pp. 762–765.)

In the present case plaintiff had the opportunity to have the decision of the Board reviewed by the method of direct attack provided for in Code of Civil Procedure section 1094.5, but it elected not to seek this normal remedy. No contention is made that exceptional circumstances precluded the usual method of direct attack. Accordingly, the decision and order of the Board is not subject to collateral attack and plaintiff is bound by the doctrine of res judicata.

We are not unmindful that in reaching this result we appear to give approbation to what clearly appears to be an order made by the Board in excess of its defined powers.³ The windfall obtained by defendants through their contumacy and the magnanimity of the Board results from plaintiff's failure to avail itself of the normal remedy by which the Board's decision might have been prevented. The seeming inequity in this case must yield to the salutary principle that, unless the case ‘presents unusual circumstances which make jurisdictional contest by collateral attack just as appropriate and just as consistent with fair play as direct attack in the original litigation’ (Farley v. Farley, 227 Cal.App.2d 1, 9–10, 38 Cal.Rptr. 357, 363), it is not necessary or desirable to subject to collateral attack final judgments or orders made by a tribunal having jurisdiction of the subject matter and the parties but acting in excess of its jurisdiction. (See 1 Witkin, Cal. Procedure (2d ed.) § 223, at p. 757.) To depart from this principle would open up a ‘Pandora's box’ subjecting judgments and orders to collateral attack, notwithstanding the failure of direct attack through normal procedures, and placing upon judgments and orders believed to be final an aura of doubtful validity.

The judgment is affirmed.

FOOTNOTES

1.  At the trial in the injunction action defendant Florence Padilla testified that the subject additional basement rooms were being occupied as dwelling units.

2.  The record discloses that the trial court took judicial notice of the pertinent code provisions of the San Francisco Municipal Code and the charter of said City and County. This court takes judicial notice of each matter properly noticed by the trial court and each matter the trial court was required to notice. (Evid.Code, § 549.)

3.  The decision of the Board is in excess of its authority since its order directs the issuance of a permit not in conformity with the provisions of the Planning Code. As indicated above the Board is bound by relevant law as enunciated by the appropriate ordinances. The Board does not have the authority to contravene such ordinances. While the Board is invested with wide discretion in passing upon matters submitted to it for decision, that discretion must be a lawful one, applied to the facts in evidence, but exercised in accordance with the terms of the relevant law. (See City and County of S. F. v. Superior Court, supra, 53 Cal.2d 236, 250–251, 1 Cal.Rptr. 158, 347 P.2d 294; Board of Permit Appeals of City and County of San Francisco v. Central Permit Bureau, supra, 186 Cal.App.2d 633, 640, 9 Cal.Rptr. 83.) That discretion does not permit the performance of an act which the law prohibits. (Plum v. City of Healdsburg, supra, 237 Cal.App.2d 308, 317, 46 Cal.Rptr. 827.) In the instant case the Planning Code (§§ 110, 309, subd. (a)) specifically provides that no building or alteration permit shall be issued that is contrary to the provisions of the Planning Code and that any permit so issued is null and void.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.