Opinion
Review Granted Aug. 22, 1985.
Opinion on pages 21-40 omitted.
Reviews Granted
[213 Cal.Rptr. 817]Cohen, England & Whitfield, Stanley E. Cohen, David W. Tredway and Mitchel B. Kahn, Oxnard, for plaintiff and appellant.
Colin Lennard, City Atty., City of Camarillo and Burke, Williams & Sorenson, Katherine E. Stone and Cristina L. Sierra, Los Angeles, for defendant and respondent.
Certified by the Chairperson of the Judicial Council.
Plaintiff appeals from a judgment entered pursuant to stipulation to allow plaintiff to prosecute an appeal from a partial summary judgment specifying certain issues were without substantial controversy and deemed established. The question presented is whether Evidence Code section 669.5 and Government Code section 65863.6 apply to initiative ordinances. The trial court determined that they did not and we affirm.
On June 2, 1981 a growth control ordinance was enacted by the voters of the City of Camarillo pursuant to their initiative power. This was known as Measure A.
For four or five years prior to the adoption of Measure A Camarillo had been experiencing an alarming rate of growth. This over-extended services and facilities within the city; its citizens were experiencing traffic congestion and the deterioration of air quality.
Measure A was initiated by a committee of citizens co-chaired by the mayor of Camarillo. The committee concluded that the city's then growth policies were inadequate to protect the health, safety and welfare of the citizens of Camarillo and drafted Measure A.
Small developments and subsidized low income and senior citizen housing were totally exempted from the provisions of Measure A. However, developers were required to compete annually for the 400 units of large, market-rate developments allotted each year.
Prior to the election Measure A was debated at public forums and in the newspapers. [213 Cal.Rptr. 818] Whether Measure A was needed to control growth was a major issue of the campaign. The opponents of the initiative expended $104,530 on the campaign and distributed extensive campaign literature. The proponents expended $2,540.62. Sixty-two percent of the voters favored Measure A while thirty-eight percent opposed it.
Shortly after the enactment of Measure A by the electorate the plaintiff and Pardee Construction Co. filed separate complaints challenging the validity of Measure A on a variety of grounds. The plaintiff's complaint alleged that Measure A violated Government Code sections 65863.6 and 65860, subdivision (a), while Pardee's complaint alleged that Measure A was unconstitutional and conflicted with certain housing statutes and the Subdivision Map Act.
In June 1983 the trial court granted a partial summary judgment against the plaintiff and Pardee. The court held that section 669.5 of the Evidence Code was not applicable to Measure A, that Measure A does not conflict with sections 65302.8, 65580, 65583 or 65584 of the Government Code, that Measure A did not conflict with the Subdivision Map Act, and that Measure A did not conflict with section 65863.6 of the Government Code. Subsequently, the parties entered into a stipulation for entry of judgment under which Pardee's complaint was dismissed without prejudice, and this appeal followed.
The plaintiff has not appealed the ruling that Measure A does not conflict with the housing element statutes (Gov. Code, §§ 65302.8, 65580, 65583 and 65584) or the Map Act. This appeal is therefore limited to whether Evidence Code section 669.5 is applicable to Measure A and whether Measure A conflicts with Government Code section 65863.6.
EVIDENCE CODE SECTION 669.5 DOES NOT APPLY TO INITIATIVE MEASURES
Evidence Code section 669.5 would shift to Camarillo in an action challenging the validity of Measure A, the burden of proof that such ordinance is necessary for the protection of the public health, safety or welfare of the population of Camarillo. [213 Cal.Rptr. 819] The trial court found that Evidence Code section 669.5 did not apply to Measure A because Measure A was an initiative ordinance and therefore not "enacted by the governing body of" Camarillo within the meaning of subdivision (a) of section 669.5.
The full text of Evidence Code section 669.5 is as follows: "669.5 Ordinances limiting building permits or development of buildable lots for residential purposes; impact on supply of residential units; actions challenging validity. (a) Any ordinance enacted by the governing body of a city, county, or city and county which directly limits, by number, (1) the building permits that may be issued for residential construction or (2) the buildable lots which may be developed for residential purposes, is presumed to have an impact on the supply of residential units available in an area which includes territory outside the jurisdiction of such city, county, or city and county. [p] (b) With respect to any action which challenges the validity of such an ordinance, the city, county, or city and county enacting such ordinance shall bear the burden of proof that such ordinance is necessary for the protection of the public health, safety, or welfare of the population of such city, county, or city and county. [p] (c) This section does not apply to ordinances which (1) impose a moratorium, to protect the public health and safety, on residential construction for a specified period of time, if, under the terms of the ordinance, the moratorium will cease when the public health or safety is no longer jeopardized by such construction, or (2) create agricultural preserves under Chapter 7 (commencing with Section 51200) of Part 1 of Division 1 of Title 5 of the Government Code, or (3) restrict the number of buildable parcels by limiting the minimum size of buildable parcels within a zone or by designating lands within a zone for nonresidential uses. [p] (d) This section shall not apply to a voter approved ordinance adopted by referendum or initiative prior to the effective date of this section which (1) requires the city, county, or city and county to establish a population growth limit which represents its fair share of each year's statewide population growth, or (2) which sets a growth rate of no more than the average population growth rate experienced by the state as a whole."
Respondent contends that the ruling is correct and that the plain, usual and ordinary meaning of the words "governing body" excludes the electorate. Appellant contends that such a construction would render meaningless subdivision (d) of section 669.5 referring to "a voter approved ordinance adopted by referendum or initiative" since the reference would be unnecessary if the entire section excludes voter approved ordinances.
Respondent counters by arguing that since the Legislature used the phrases "ordinance enacted by the governing body" and "voter approved ordinance adopted by referendum or initiative" in the same statute it must be presumed to have known the difference and intended to differentiate between the two. Appellant answers this by contending that the legislative history shows otherwise.
In the original version of Assembly Bill 3252 proposed Evidence Code section 669.5 referred to "[a]ny ordinance enacted by a city ...," presumably including both initiative and city council adopted ordinances. On April 30, 1980 the bill was amended to exclude all initiative measures from its application.
Assembly Bill 3252 was next considered by a Conference Committee of the Assembly and Senate to resolve differences in the bill as passed by the two houses of the Legislature. Pursuant to recommendations of the Conference Committee the Bill was further amended on August 30, 1980 to delete from subsection (a) the language "except an ordinance enacted pursuant to the provisions of an initiative measure approved by the voters of such city, county, or city and county" and to add subsection (d). It is this final version of the Assembly Bill which became law. (1980 Stats., ch. 1144.)
The Legislative Council's Digest of the final version of the bill states that it applies to ordinances which directly limit building permits or buildable lots by number "... enacted by the governing body of a city or county, except an ordinance enacted pursuant to the provisions of an initiative or referendum measure adopted prior to the effective date of this bill and meeting certain other conditions ...." The Conference Report states: "The conference amendments delete the exemption for all initiatives and instead exempt voter approved initiatives and ordinances, enacted prior to the effective date of the bill, which tie growth to the state's rate of growth." (Statement on A.B. 3252, Conf. Rep.)
Respondent's reply is that the Legislature deleted the express exemption for initiatives from Assembly Bill 3252 because it was unnecessary and surplusage since it is well-established in California that the term "governing body" does not include the electorate. Respondent points out that the distinction between the governing body and the electorate is made in the California Constitution (art. XI, § 1(b); art. XI, § 3(b), (c)), in case law and by the Legislature.
See: Riedman v. Brison (1933) 217 Cal. 383, 388, 18 P.2d 947; Meldrim v. Board of Supervisors (1976) 57 Cal.App.3d 341, 343-344, 127 Cal.Rptr. 52; Hughes v. Lincoln (1965) 232 Cal.App.2d 741, 744, 43 Cal.Rptr. 306; Mervynne v. Acker (1961) 189 Cal.App.2d 558, 562, 565, 11 Cal.Rptr. 340.
See, e.g., Code of Civil Procedure section 1245.210; Government Code sections 5402, 5602, 6543; 8557, subdivision (d); 16271, subdivision (a); 91504, subdivision (k); 66905.7, 67023; Health and Safety Code sections 320.2, subdivision (d), 4602.2, 4952, 34205, 34507, 35453, 36053, 37854; Public Resources Code sections 5780.2, 7058.5; Welfare and Institutions Code section 5601, subdivision (a); Military and Veterans Code section 1260, subdivision (b).
[213 Cal.Rptr. 820]It is clear from the legislative history that at one time exclusion of all initiative measures from the application of proposed Evidence Code section 669.5 was contemplated. It is unclear whether that contemplation became actuality in the final version of Evidence Code section 669.5.
In resolving this question the statute must be construed to eliminate doubts as to the provision's constitutionality. (In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.) If we adopt the construction advanced by respondent no constitutional problems are presented; however, if we adopt the construction advanced by appellant, we are faced squarely with the issue of whether the Legislature may shift the burden of proof to the electorate on the constitutionality of an initiative measure. The 1911 constitutional amendment reserving the right of initiative on behalf of municipal voters prohibited legislation "... limiting or restricting either the provisions of this section or the powers herein reserved." (Former Cal. Const., art. IV, § 1.)
Measure A is constitutional "... if it is fairly debatable that the restriction in fact bears a reasonable relation to the general welfare." (Associated Home Builders, Etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 601, 135 Cal.Rptr. 41, 557 P.2d 473.) This is a significant burden. For example, appellant here has in effect stipulated that it cannot meet this burden and that judgment may be entered against it if the burden is not on respondent. We do not believe this to be a violation of the one final judgment rule referred to in the concurring opinion.
Although Article IV of the California Constitution was revised in 1966 the purpose of deletion of the clauses barring the Legislature from restricting the reserved power of municipal initiative was solely to remove surplusage, and the deletion did not change the meaning of the provisions. (Associated Home Builders, Etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 595, fn. 12, 135 Cal.Rptr. 41, 557 P.2d 473.)
Legislation may specify the manner in which general law cities may enact ordinances restricting land use but "... legislation which permits council action but effectively bars initiative action may run afoul of the 1911 amendment." (Associated Home Builders, Etc. Inc. v. City of Livermore, supra, 18 Cal.3d at p. 595, 135 Cal.Rptr. 41, 557 P.2d 473.) The author of the bill, Louis J. Papan, by letter of September 11, 1980 to then Governor Edmund G. Brown, Jr. urged the Governor to sign the bill and stated: "Assembly Bill 3252, in shifting the burden of proof to local agencies in a legal action, recognizes the fact that a local jurisdiction enacting an ordinance is best equipped to prove its reasonableness and that local agencies, not community groups, have at their disposal the planning data used to justify such an ordinance. Furthermore, the shift in legal burden will hopefully discourage communities from enacting unwarranted or arbitrary ordinances."
It is certainly arguable that Evidence Code section 669.5 would effectively [213 Cal.Rptr. 821] bar initiative growth control ordinances, while permitting council adopted growth control ordinances, if applied to both, because the planning data used to justify such an ordinance is more readily available to the local agency. We do not decide the constitutional question of whether the burden of proof on the constitutionality issue may be shifted to the electorate in an initiative ordinance but, instead, we simply adopt that construction of Evidence Code section 669.5 which "eliminates doubts as to the provision's constitutionality." (In re Kay, supra, 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.) Accordingly, we hold that the trial court was correct in concluding that section 669.5 of the Evidence Code is not applicable to Measure A.
GOVERNMENT CODE SECTION 65863.6 DOES NOT APPLY TO INITIATIVE MEASURES
The trial court further found that Measure A does not conflict with section 65863.6 of the Government Code, which provides: "65863.6 Limitation on construction of housing units; consideration; findings. [p] In carrying out the provisions of this chapter, each county and city shall consider the effect of ordinances adopted pursuant to this chapter on the housing needs of the region in which the local jurisdiction is situated and balance these needs against the public service needs of its residents and available fiscal and environmental resources. Any ordinance adopted pursuant to this chapter which, by its terms, limits the number of housing units which may be constructed on an annual basis shall contain findings as to the public health, safety, and welfare of the city or county to be promoted by the adoption of the ordinance which justify reducing the housing opportunities of the region."
We are met with much the same arguments. Thus, respondent contends that section 65863.6 is part of Chapter 4, Title 7, Division 1, of the Government Code (Zoning Regulations) and that Chapter 4 establishes the procedures by which "the legislative body" enacts or amends zoning laws (Gov. Code, § 65802) and under which "the legislative body" may "[r]egulate the use of ... land ...." (Gov. Code, § 65850.) Since Measure A was adopted by vote of the People, respondent contends that section 65863.6 is inapplicable to it, because that section only applies to ordinances adopted by the legislative body pursuant to Chapter 4. Respondent further contends that in any event Measure A satisfies section 65863.6.
Respondent originally seemed to concede that Measure A was a zoning regulation but by its argument summarized above contended that Measure A was not a zoning regulation of the type that was governed by Chapter 4. Subsequently the Supreme Court decided Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 472, 208 Cal.Rptr. 228, 690 P.2d 701, holding that this same ordinance "does not change zoning." Respondent now offers this holding in support of the proposition that Measure A is not a zoning regulation at all. Suffice it to say that the Supreme Court in Pardee also said of Measure A at page 472, 208 Cal.Rptr. 228, 690 P.2d 701, that it is "... essentially a regulation of the time, or rate, of development. It regulates the rate of development by limiting the number of dwelling units that may be built per year. It allocates the number of units among developers according to engineering and aesthetic criteria...." It is not simply a change of zoning that amounts to a zoning regulation. (Govt. Code, § 65850.)
Appellant argues that unlike Evidence Code section 669.5 the Government Code section requires the "city", rather than the legislative body, governing body or city council, to consider the effect of the ordinance upon the housing needs of the region. Appellant points out that Measure A in no way demonstrates such consideration [213 Cal.Rptr. 822] and that nothing in the record on appeal shows that the proponents of Measure A or the voters had any regional information before them to consider. Respondent counters that Measure A commences with findings that the City had been "experiencing a period of intense residential development" with adverse effect upon public services and available fiscal and environmental resources, and that it is the intent of Measure A to ensure balance of housing types in the community and to achieve a steady rate of residential growth by regulating quality, distribution and rate of growth in the interest of various enumerated concerns relating to the public health, safety, and welfare of the city.
In Stein v. City of Santa Monica (1980) 110 Cal.App.3d 458, 168 Cal.Rptr. 39, the sole issue was whether the California Environmental Quality Act (CEQA) applied to an urban rent control initiative charter amendment adopted by the City of Santa Monica. CEQA requires environmental investigation by public agencies and it defines a "public agency" to include a "city." (Pub.Res. Code, § 21063.) The amendment was adopted without any steps being taken to comply with CEQA. The court held that CEQA did not apply to the initiative process although it would have applied to the city council.
Respondent goes on to point out that the effect of the ordinance on housing needs of the region as well as the need for the measure were the subject of extensive public debate prior to adoption. Thus, the declaration of the mayor of the City of Camarillo is to the effect that he "personally debated Measure A with its opponents at a number of public forums, including debates sponsored by the American Association of University Women, Leisure Village, Association of Retired Persons, the Daily News (which was televised and aired several times), and KVFN radio station." Appellant correctly points out that respondent's claim is factual and not legal, but does not follow up on this point, which we regard as determinative of the question of the application of Government Code section 65863.6 to the initiative process.
The reams of declarations, studies and statistics produced by respondent simply demonstrate an issue of fact as to whether the City considered the effect of the ordinance upon the housing needs of the region, and a fact issue on each of the findings required by Government Code section 65863.6, which would require denial of the motion for partial summary judgment, unless the Legislature did not intend Government Code section 65863.6 to apply to the initiative process. There is a world of difference in requiring a city council to justify its findings, and to show that it considered the effect on housing needs of the region in adopting an ordinance to which Government Code section 65863.6 applies, and in requiring the electorate to do so. The debate in city council is generally preserved and the planning data available to show consideration of the housing needs of the region and to back up the findings. When Government Code section 65863.6 is applied to the initiative process, however, we are met with a record such as is presented here.
We are inclined to agree with the court in Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330, 335, 178 Cal.Rptr. 723, that "... what was in the minds of the electorate in adopting the initiative is ... immaterial." Appellant asserts that in adopting Measure A there was no weighing or balancing by the voters of the regional needs of the area against the public service, fiscal and environmental needs of the community. If Measure A was adopted by 51 percent of those voting, and if appellant were to produce declarations of 2 percent of those voting to the effect that they voted for Measure A from purely selfish reasons and without any consideration of the regional needs of the area, are such declarations to be received by the trial court? We think not. Further, although Measure A purports to make findings, the very idea of findings presupposes evidence that may be weighed to determine whether such findings are supported. A purported finding of fact by popularity contest seems to us a nullity. Thus, if the German electorate in 1940 by majority vote found as a fact that all Jews were undesirable, and therefore deserved to be eliminated, it would not make it so.
We do not mean to imply that we agree with respondent that all of Chapter 4 of the Government Code relating to "Zoning Regulations" does not apply to initiative ordinances. There is ample precedent for deciding this question on a section-by-section basis. Thus, in Associated Home Builders, Etc. Inc. v. City of Livermore, supra, 18 Cal.3d 582, 596, 135 Cal.Rptr. 41, 557 P.2d 473, the Supreme Court concluded that the notice and hearing provisions of [213 Cal.Rptr. 823] the zoning law, Government Code sections 65853-65857, did not apply to initiative action. The court reasoned that those sections made no mention of zoning by initiative, the procedures they prescribed referred only to action by the city council, and they were inconsistent with the regulations that the Legislature had established to govern enactment of initiatives. The court noted that Hurst v. City of Burlingame (1929) 207 Cal. 134, 277 P. 308, which it overruled, had stated at page 141 that the "initiative law and the zoning law are hopelessly inconsistent and in conflict as to the manner of the preparation and adoption of a zoning ordinance," and in Associated Home Builders resolved that conflict by concluding that sections 65853-65857 do not apply to initiative action.
No one contends that the enactment of Measure A did not comply with the state initiative law. Assuming without deciding that the Legislature may constitutionally require zoning regulations adopted by initiative to go through the process specified in Government Code section 65863.6, we believe that the initiative law is the place to say so. Accordingly, we again adopt a construction eliminating "... doubts as to the provision's constitutionality" (In re Kay, supra, 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142) and hold that Government Code section 65863.6 does not apply to initiative action. A zoning regulation adopted by initiative still must comply with the constitutional requirement that it be reasonably related to the welfare of the region affected (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 524, 169 Cal.Rptr. 904, 620 P.2d 565; Associated Home Builders, etc. Inc. v. City of Livermore, supra, 18 Cal.3d at pp. 609-610, 135 Cal.Rptr. 41, 557 P.2d 473) and cannot unfairly discriminate against a particular piece of land or be arbitrary or capricious. (Arnel Development Co. v. City of Costa Mesa, supra, 126 Cal.App.3d 330, 336-337, 178 Cal.Rptr. 723.)
The judgment of the trial court is affirmed.
THOMPSON, J., concurs.
LILLIE, Presiding Justice, concurring.
I agree that the judgment should be affirmed, but I would affirm without a review of the merits.
Plaintiff Building Industry Association of Southern California, Inc. and Pardee Construction Company filed separate actions against the City of Camarillo seeking a declaration that Measure A is invalid and an injunction against its enforcement. Plaintiff's complaint alleged that Measure A violates Government Code sections 65863.6 and 65860, subdivision (a); Pardee's complaint alleged that Measure A is unconstitutional and violates Government Code sections 65302.8, 65580, 65583, 65584, 65863.5, 65913 and 65913.2, and the Subdivision Map Act (Gov.Code, § 64410 et seq.). Defendant moved for summary judgment, or alternatively for partial summary judgment, against plaintiff and Pardee. The court granted the alternative motion and made its "Order Re Partial Summary Judgment" determining that the following issues are without substantial controversy and are deemed established: (1) Measure A does not conflict with Government Code sections 65302.8, 65580, 65583, 65584 or 65863.6, or with the Subdivision Map Act; (2) Evidence Code section 669.5 is not applicable to Measure A.
The parties thereafter executed a document entitled "Stipulation for Entry of Judgment" which was filed with the court. The stipulation provided that the complaint of Pardee should be dismissed without prejudice and the allegations thereof deemed incorporated into the complaint of plaintiff. Paragraph 3 of the stipulation referred to the order re partial summary judgment and recited the issues therein determined to be without substantial controversy. The stipulation further provided: "4. Under the above referred to rulings of the trial court, the sole remaining issue is whether: 'It is fairly debatable that ... [Measure A] in fact bears a reasonable relation to the general welfare.' [Citation.] Plaintiff bears the burden of proof. [Citation.] [p] 5. Plaintiff, Building Industry Association of Southern California, Inc., has determined [213 Cal.Rptr. 824] to forego an evidentiary trial on the issue specified in paragraph 4 and stipulates that judgment may be entered in favor of defendant City of Camarillo. This stipulation and the judgment entered pursuant thereto is for the purpose of permitting plaintiff Building Industry Association of Southern California, Inc. to prosecute an appeal on the trial court's rulings set forth in paragraph 3. In the event an appellate court reverses the trial court's order re partial summary judgment regarding Evidence Code section 669.5, a trial would be required subject to either party's right to bring pretrial motions."
Judgment pursuant to the stipulation was entered in favor of defendant and against plaintiff. Plaintiff appeals from the judgment "and in particular, the order re partial summary judgment incorporated into said judgment which states Evidence Code section 669.5 is not applicable to Measure A and that Measure A does not conflict with Government Code section 65863.6."
In Niederer v. Ferreira (1983) 150 Cal.App.3d 219, 222-223, 197 Cal.Rptr. 685, we stated: "In reviewing an order specifying issues without substantial controversy, we are bound by the rules generally applicable to summary judgments. [Citation.] Thus we look to the one judgment rule as applied to partial summary judgment. [Citation.] Section 437c, Code of Civil Procedure, provides in subdivision (j): 'Except where a separate judgment may properly be awarded in the action, no final judgment shall be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.' The statute thus allows entry of a partial summary judgment before the remaining issues are disposed of. [Citation.] 'There can be but one final judgment in an action, and that judgment must resolve all causes of action pending between the parties. [Citation.] Thus a partial summary judgment remains interlocutory so long as the proceeding in which it was rendered is still pending. ...' [Citation.]" In Niederer we recognized that an exception to the nonappealability of a partial summary judgment exists " 'where all issues necessary to a disposition of the remaining causes of action have been decided by the trial court ... or can be decided as a matter of law on the basis of the record....' " (Niederer v. Ferreira, supra, 150 Cal.App.3d at pp. 223-224, 197 Cal.Rptr. 685; see also DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 433, 160 Cal.Rptr. 899.)
The stipulation for entry of judgment indicates that the parties were aware of the general rule that a partial summary judgment is not appealable. (Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 489, 186 Cal.Rptr. 321; DeGrandchamp v. Texaco, Inc., supra, 100 Cal.App.3d 424, 430-431, 436-436, 160 Cal.Rptr. 899; Trani v. R.G. Hohman Enterprises, Inc. (1975) 52 Cal.App.3d 314, 125 Cal.Rptr. 34; King v. State of California (1970) 11 Cal.App.3d 307, 311-312, 89 Cal.Rptr. 715.) In the stipulation the parties acknowledged that the order for partial summary judgment, designating issues without substantial controversy, left at least one issue undetermined. In an apparent attempt to come within the above noted exception to the general rule, plaintiff agreed to forego trial on that issue and stipulated that judgment could be entered in favor of defendant. The stipulation candidly states that it "and the judgment entered pursuant thereto is for the purpose of permitting plaintiff ... to prosecute an appeal on" the order granting partial summary judgment. While stipulations may be entered into concerning any step of the action (Code Civ.Proc., § 283), including entry of judgment (Barendregt v. Downing (1959) 175 Cal.App.2d 733, 736, 346 P.2d 870), the practice of fashioning a stipulation to avoid the effect of the one final judgment rule should not be sanctioned. "Parties litigant cannot confer appellate jurisdiction upon an appellate tribunal, and the rule that there can be but one final judgment in a case cannot be disregarded." (Crofoot v. Crofoot (1955) 132 Cal.App.2d 794, 799, 283 P.2d 283.)
Accordingly, if the lack of finality of the judgment were the only factor involved in [213 Cal.Rptr. 825] this case, the appeal should be dismissed. (See DeGrandchamp v. Texaco, Inc., supra, 100 Cal.App.3d 424, 436-437, 160 Cal.Rptr. 899.)
But further, and most significant, is the fact that plaintiff appeals from a judgment to which he consented. A judgment will not be reviewed or disturbed on an appeal brought by a party who consented to the judgment. A stipulation is a consent within the meaning of this rule. (Kenworthy v. Hadden (1978) 87 Cal.App.3d 696, 699, 151 Cal.Rptr. 169; Delagrange v. Sacramento Sav. & Loan Assn. (1976) 65 Cal.App.3d 828, 831, 135 Cal.Rptr. 614; In re Marriage of Carter (1971) 19 Cal.App.3d 479, 488, 97 Cal.Rptr. 274; Atchison, T. & S.F. Ry. Co. v. Hildebrand (1965) 238 Cal.App.2d 859, 861, 48 Cal.Rptr. 339; Brooms v. Brooms (1957) 151 Cal.App.2d 351, 352, 311 P.2d 567.) The court will dismiss such an appeal on motion, or if a motion to dismiss is not made, the court will merely affirm the judgment without reviewing it. (Erlanger v. Southern Pac. R.R. Co. (1895) 109 Cal. 395, 42 P. 31; La Societe Francaise D'Epargnes etc. v. Beardslee (1883) 63 Cal. 160, 161; 4 Cal.Jur.3d, Appellate Review, § 122, pp. 174-175.) Inasmuch as defendant did not move to dismiss the appeal, the second alternative is applicable herein.
I would affirm the judgment without reviewing the merits.
Although respondent has stipulated that Measure A is a growth control ordinance respondent nevertheless contends that Evidence Code Section 669.5 does not apply to Measure A because Measure A does not directly limit, by number, the building permits that may be issued for residential construction in Camarillo or the buildable lots which may be developed for residential purposes. Respondent argues that Measure A limits large developments of non-exempt projects to 400 units per year through 1995, but Measure A does not limit the number of housing units that can be built because, under Measure A, any number of additional units can be developed in any year if developers wish to build four units or less or any number of low-income or senior citizen housing units. This argument ignores reality. The effect of Measure A is to preclude tract development in Camarillo beyond 400 units per year through 1995. This directly limits, by number, the buildable lots which may be developed for residential purposes in any given year. (Cf. C-Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 187 Cal.Rptr. 370.)
Under the stipulation the judgment resolves "all causes of action pending between the parties" and "the proceeding in which it was rendered" is no longer pending. (Trani v. R.G. Hohman Enterprises, Inc. (1975) 52 Cal.App.3d 314, 315-316, 125 Cal.Rptr. 34.) A trial is required only in the event an appellate court reverses the trial court's determination of who has the burden of proof on the remaining issue. This differs completely from Niederer v. Ferreira (1983) 150 Cal.App.3d 219, 197 Cal.Rptr. 685, cited in the concurring opinion, in which the issue of lack of consideration for a promissory note remained for determination between the parties regardless of the outcome on appeal.
Neither do we regard this as an appeal brought by a party who consented to the judgment. The plaintiff simply acknowledged by stipulation, that it could not win the case if the burden of proof on the remaining issue was on it. The plaintiff did not agree that the trial court was correct in placing the burden of proof on it. That was the point of the appeal.
Plaintiff is willing to agree that it cannot make a case if the law is as determined by the trial court. Normally, such a legal issue would be presented framed as a demurrer sustained without leave to amend, as to which there would be no question of appealability. Because the legal question here, however, is who has the burden of proof at trial the traditional framework cannot be employed. The parties therefore constructed the stipulation for judgment questioned in the concurring opinion to present the legal issue on appeal. We think it wasteful of trial court time to require a plaintiff in the situation here presented to go through with a trial it does not believe it can win simply to perfect an appeal.