Opinion
Page __
__ Cal.App.2d __338 P.2d 920Van M. GRIFFITH, Plaintiff and Appellant,v.DEPARTMENT OF PUBLIC WORKS of the State of California, Frank B. Durkee, Chester H. Warlow, James A. Guthrie, Charles T. Leigh, F. Walter Sandelin, Robert E. McClure, and H. S. Chase, as Members of and constituting the California Highway Commission of the State of California, Frank B. Durkee, Director of Public Works of the State of California, City of Los Angeles, a Municipal Corporation; Everett G. Burkhalter, Earl D. Baker, Robert M. Wilkinson, Harold A. Henry, Rosalind Weyman, L. E. Timberlake, Don A. Allen, Gordon R. Hahn, Edward R. Roybal, Charles Navarro, Harold Harby, Harriett Davenport, Ernest E. Debs, John C. Holland, John S. Gibson, Jr., are members of and constitute the Council of the City of Los Angeles, Defendants and Respondents.Civ. 23568.California Court of Appeals, Second District, First DivisionMay 4, 1959Rehearing Denied June 2, 1959.
Hearing Granted July 1, 1959.
See also 141 Cal.App.2d 376, 296 P.2d 838.
[338 P.2d 921] Arthur E. Briggs, Los Angeles, for appellant.
George C. Hadley, George W. Miley, Charles E. Spencer, Jr., Los Angeles, for respondents Department of Public Works and Highway Commission.
Roger Arnebergh, Burke Jones, Claude E. Hilker, Los Angeles, for respondents City of Los Angeles and City Council.
FOURT, Justice.
This is an appeal from a summary judgment for respondents. The original complaint was filed by appellant on April 22, 1955, in his capacity as a resident, citizen, and taxpayer of the City of Los Angeles, and as the owner of a contingent remainder interest in real property known as 'Griffith Park;' part of which was granted to the City of Los Angeles by Griffith Jenkins Griffith and Mary Agnes Christina Griffith for use as a public park only, and part of which was acquired by the City of los Angeles from the estate of Griffith Jenkins Griffith 'for park and playground purposes.' In his complaint, appellant sought to enjoin the respondents, acting as state and city officials, all working in conjunction with each other, from the diversion of approximately 206 acres of Griffith Park in violation of the trust upon which said property was held by the City of Los Angeles, from the use to which it was dedicated, and to enjoin the use thereof as a public highway, commonly known as a freeway. In a second cause of action, appellant sought declaratory relief as to whether respondents may construct a freeway over park property in violation of the terms of the grant and without the consent and permission of the Board of Recreation and Park Commissioners of the City of Los Angeles.
The order ruling on the motions for summary judgment is set forth hereinafter in its entirety:
'The motions for Summary Judgment of defendants, Department of Public Works of the State of California, Frank B. Durkee, Chester H. Warlow, James A. Guthrie, Charles T. Leigh, F. Walter Sandelin, Robert E. McClure and H. S. Chase, are granted.
'The motions for Summary Judgment of the defendant City of Los Angeles and the defendants named as members of its City Council, are granted as to the first cause of action set forth in the complaint; and they are denied as to the second cause of action if the plaintiff desires to and shall within fifteen (15) days file an amended and supplemental complaint for declaratory relief. If such amended and supplemental complaint be not filed on or before September 16, 1957, the said motions for Summary Judgment are granted as to the second cause of action.
'The reasons for the foregoing rule are: It appears from the affidavits and the file in people of the State of California v. City of Los Angeles, Superior Court File No. 643,327, which is incorporated in the affidavits by reference that the State has taken possession of all of the subject property, and has duly completed or partially completed thereon the freeway in question. The right of the plaintiff to an award for the taking of the property as against the State is something that must be determined in the condemnation action. The State does not claim under the deed from plaintiff's predecessor in interest and there is no reason to declare the rights of the State and the plaintiff under the deed. An injunction against erecting the freeway would now be useless and plaintiff makes no showing whatsoever as to any right to relief in this action as against the Board of Public Works or its officers or the other state officers named.
'As to the first cause of action, the affidavits do not show any basis to enjoin the State from the construction of the freeway on the subject property as it does not show that the City has the power to construct, or contemplates the construction of, a freeway. Insofar as the allegation that there [338 P.2d 922] is collusion between the State and the City to permit the State to construct the freeway is concerned, that is a matter that would not now give any basis for an injunction, and the affidavits make it clear that the plaintiff does not have any cause of action for equitable relief other than a declaratory judgment.
'As the second cause of action is now framed, it is clear that it would be useless to make a declaration of rights in accordance with the present complaint and the prayer, inasmuch as the taking of the property and erection of the freeway by the State is an accomplished fact. The affidavits and the file bearing Superior Court No. 643,327 make it clear, however, that there is an actual controversy existing between the plaintiff and the defendant City as to whether or not the taking of the property by the State resulted in a reversion of the property taken from the plaintiff, with the consequence that the plaintiff would be entitled to all sums awarded in the condemnation action for the taking. Also, the controversy as to whether or not the act of the City in not contesting the right of the State to take the property, that is, not forcing the State to prove before an actual taking that the use of the property for a highway was a more necessary public use than its use as a park, resulted in a breach of the trust under which the City held the property, and a consequent reversion of the whole of the property deeded by plaintiff's predecessor in interest to the City or a reversion of that portion taken. These questions could not be litigated in the condemnation action, particularly as to whether or not there was a reversion as to all or part of the property taken.
'The evidence before me shows that there is a real question whether or not the City has in good faith contested the right of the State to take, and that there is a real question involved as to the effect of the taking.
'I think the attorneys for the State are subject to criticism in representing to Judge A. Curtis Smith, in the action of People of the State of California v. City of Los Angeles, Superior Court File No. 643,327, that under Section 1240 of the Code of Civil Procedure the taking of a property for a state highway was deemed to be more necessary public use than was being made of the property by the City. This representation was made by deleting from the quotation of Section 1240 of the Code of Civil Procedure the phrase which provides that taking of property for a state highway is a more necessary use only in cases where the public use theretofore made was by an 'individual, firm, or private corporation.' Where a municipality is the first taker the question of which use is the more necessary use is a question of fact and not of law.
'The clerk will enter this Order.'
No amended and supplemental complaint was filed, and the summary judgment was thereafter filed on October 10, 1957.
In this appeal it is contended as follows:
'1. This summary judgment by denying declaratory relief is reversible error.
'2. The trial court committed error and exceeded its jurisdiction on motion for summary judgment, in adjudicating the sufficiency of plaintiff's pleading.
'3. The trial court erred by adjudicating the merits of the case inasmuch as it appears from the affidavits that there are material facts in issue.
'4. Whether the taking of the park property for state highway purposes is a more necessary public use than that for park purposes is a question of fact and not of law.
'5. Whether the designation of location of the state highway within the park boundaries was arbitrary, in bad faith, or an abuse of discretion by the State Highway Commission, is a question of material fact.
'6. Whether there was unlawful collusion between the Los Angeles City Council and the State Highway Commission is an issue of material fact.
'7. Whether the acts committed by the Los Angeles City Council for and in behalf of the City of Los Angeles were such as [338 P.2d 923] to constitute violation of the trust established by the deed of gift of Griffith Park involves an issue of fact which cannot be determined on a motion for summary judgment.
'8. Whether plaintiff, as heir of the donors of Griffith Park and entitled to reversion of the determinable fee, may exercise that right upon the taking of the park lands for state highway purposes, depends upon the issues of fact not determinable by a summary judgment and he is entitled to a trial of those issues on the merits of the case.
'9. The law of this case that the complaint is sufficient on both causes of action was established on the former appeal and binding on the trial court and in subsequent proceedings on undermined issues as far as the same facts and legal principles are concerned, and the summary judgment herein appealed from is substantially in conflict therewith.'
Appellant contends that the finding as to the sufficiency of appellant's pleadings to state a cause of action, having been established as the law of the case in Griffith v. Department of Public Works, 141 Cal.App.2d 376, 296 P.2d 838, was binding upon this court. Griffith v. Department of Public Works, supra, involved an appeal from a judgment dismissing said complaint after demurrers, both general and special, had been sustained without leave to amend. In reversing the judgment of dismissal with instructions to overtule the demurrers, to allow respondents a reasonable time to file their answers, if so advised, and to proceed to a trial on the merits, it was stated by this court (141 Cal.App.2d at page 379, 296 P.2d at page 841): 'Plaintiff's complaint, in legal effect, alleges both 'collusion', and 'ultra vires' on the part of the defendants, which, as noted by the trial court are proper grounds for an action by a taxpayer. Assuming, as must be done, that the plaintiff is able to substantiate the truth of these allegations, it would appear that, occupying the dual status of taxpayer and one having a contingent remainder or reversionary interest in the property involved, plaintiff is a proper person to bring the present action. And, considering the complaint on its face, standing alone, without regard to various extraneous matters which seem to have crept into the case, it appears that plaintiff has stated a cause of action which should only be determined after a plenary trial of the issues. In such a situation, it will not suffice to decide the issues, summarily upon a hearing of the respondents' demurrers.
'A survey of the trial court's memorandum seems to indicate that the ruling sustaining the demurrers and dismissing the action is predicated not alone upon the language used in the complaint, but upon a consideration of various matters of fact and law which would be proper issues upon a trial of the merits.' (Emphasis added.)
It was also stated (141 Cal.App.2d at page 380, 296 P.2d at page 842): 'Whether the proposed freeway is a 'more necessary public use than' that of the park use for which the Griffith grant was intended, raises but another material question which should not be summarily disposed of.'
Further, with reference to Section 103.5 of the Streets and Highways Code, it was stated (141 Cal.App.2d at page 381, 296 P.2d at page 842), 'The question of constitutionality is not directly presented on this appeal, but should the broad terms of this statute be held unconstitutional as conferring unlimited power on the commission, or for any other reason, then it may be questioned whether the position taken by respondents in the present controversy, is warranted in law.'
It was thereafter stated (414 Cal.App.2d at page 381, 296 P.2d at page 842): 'If the plaintiff can establish the truth of the allegations made, which amount to charges of collusion and conspiracy on the part of city and state officers to divert dedicated park property to freeway use, in violation of the original grant and of the City Charter, and the other allegations, a case has been made out which would seem to justify the relief prayed for. Moreover, the plaintiff will then be entitled, under [338 P.2d 924] the complaint, to a declaratory judgment definitely confirming, refuting, limiting or interpreting, as the evidence requires, the nature and extent of rights and obligations arising out of the original grant, and the defendants' alleged right to divert the use of the Griffith Park property.'
In view of the foregoing, we must agree with appellant that the issue of the sufficiency of appellant's pleadings to state a cause of action should not have been relitigated in the trial court. See, Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 561, 122 P.2d 264; Penziner v. West American Finance Co., 10 Cal.2d 160, 169, 74 P.2d 252; Hard v. Hollywood Turf Club, 134 Cal.App.2d 174, 178-179, 285 P.2d 321; City of Los Angeles v. Los Angeles Bldg., etc., Council, 109 Cal.App.2d 81, 84, 240 P.2d 16.
As was stated to be the situation in Desny v. Wilder, 46 Cal.2d 715, at pages 725 and 726, 299 P.2d 257, 261, '* * * the contentions of the parties are largely related, directly or indirectly, to the significance and sufficiency of the evidence, and as all evidential contentions must be resolved in the light of the rules governing summary judgment proceedings it is desirable, before undertaking discussion of the principal problems, to indicate the pertinent rules concerning summary judgments.
'The Law of Summary Judgments. Motions for summary judgment are provided for in section 437c of the Code of Civil Procedure. The principles to be observed in proceeding under that section are stated as follows in Eagle Oil & Refining Co. v. Prentice (1942), 19 Cal.2d 533, 555-556, 122 P.2d 264: The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion 'has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] * * * [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts. [Citation.]' (See also Gardner v. Jonathan Club (1950), 35 Cal.2d 343, 347, 217 P.2d 961; Hardy v. Hardy (1943), 23 Cal.2d 244, 245, 143 P.2d 701; Walsh v. Walsh (1941), 18 Cal.2d 439, 441, 116 P.2d 62.) A summary judgment is proper only if the affidavits in support of the moving party 'would be sufficient to sustain judgment in his favor, and * * * [his opponent] does not 'by affidavit or affidavits * * * show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' [Citations.]' (Coyne v. Krempels (1950), 36 Cal.2d 257, 261, 223 P.2d 244.) In other words, the affidavits are to be construed with all intendments in favor of the party opposing the motion--here, plaintiff.' (Emphasis added.)
In Whaley v. Fowler, 152 Cal.App.2d 379, at page 384, 313 P.2d 97, 100, it was stated: "The summary judgment statute was not intended nor can it be used as a substitute for existing methods in the trial of issues of fact.' If there is any 'doubt as to the propriety of the motion, courts should, without hesitancy, deny the same.' Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065; See also Werner v. Sargeant, 121 Cal.App.2d 833, 837, 264 P.2d 217.'
In Severini v. Massae, 140 Cal.App.2d 567, at page 571, 295 P.2d 472, 474, the extent of the discretion to be exercised in ruling on motions for summary judgment was commented on as follows: 'While section 437c does use the language 'in the discretion of the court,' it must necessarily mean a legal discretion, and where, as here, it appeared that there were triable issues, there was no room for the exercise of any discretion, but rather it became the duty of the court to deny the motion.' (Emphasis added.)
With the above rules in mind, we have carefully reviewed the affidavits on file herein to determine whether or not there exist issuable questions of fact, or any [338 P.2d 925] issuable question of fact, without attempting to resolve such fact issue or issues.
The trial court recognized the taking of the property and the erection of the freeway to be accomplished facts, and it appears to have based its order upon the uselessness of an injunction, rather than upon the non-existence of issuable facts because in the opinion it is specifically pointed out, 'The evidence before me shows that there is a real question whether or not the City has in good faith contested the right of the State to take, and that there is a real question involved as to the effect of the taking. * * * Where a municipality is the first taker the question of which use is the more necessary use is a question of fact and not of law.'
Accepting the facts alleged in the affidavits filed by appellant in opposition to the motions for summary judgment to be true, as is proper in ruling on motions for summary judgment, it is not necessary in this appeal to discuss all of the factual issues which have been shown to exist. The status of Riverside Drive as a park road or a state highway or a freeway is one example of such a factual issue. The affidavit of Van M. Griffith clearly states 'that said Riverside Drive originated as a park road in said Griffith Park, * * * that no easement at any time has been granted or authorized by any legally constituted body, commission, officer or agency of the City of Los Angeles authorized to change the status of said Riverside Drive from a park road in said Griffith Park, and that said grantors have not nor has any reversioner or remainderman under said grant deed of gift to the City of Los Angeles given consent to the making and constituting said Riverside Drive within Griffith Park a city street, state highway or state freeway.' In the affidavit of Van M. Griffith supplementing his previous affidavit the following statement is made: '* * * said City Council did, on August 24, 1954, pass and adopt a resolution recommending that Riverside Drive in Griffith Park be placed on a high priority as said state highway; * * *.' In sharp contrast to the statement of Van M. Griffith concerning the lack of consent to the making and constituting of Riverside Drive into a city street, state highway or state freeway is the following statement in a letter dated April 21, 1954 from P. O. Harding, Assistant State Highway Engineer of the State of California to the Board of Recreation and Park Commissioners of the City of Los Angeles, which letter is attached to the affidavit of George Hjelte as Exhibit 1 thereof: 'Regarding the development of this particular highway, this freeway route, which follows the routing shown on the City Engineer's Metropolitan Freeway Plan and the Metropolitan Freeway Plan as developed by the Los Angeles County Regional Planning Commission, was added to the State Highway System by the Legislature in 1947.' Also in sharp contrast is the following statement in a letter dated February 3, 1955, from Frank B. Durkee, Director of Public Works of the State of California, to the Department of Recreation and Parks of the City of Los Angeles, which letter is attached to the affidavit of Mrs. Harold C. Morton as Exhibit 'E' thereof, 'The location for this section of freeway actually had been chosen by the City of Los Angeles prior to the enactment of the Collier-Burns Highway Act of 1947 [Streets and Highways Code, § 2000 et seq.], at which time the State Legislature added this section of highway to the State Highway System, placing the obligation for its construction on the State.'
Clearly the status of Riverside Drive is material to determination of the factual issue as to whether the taking of park property for state highway purposes constituted a 'more necessary public use' of said property than its use for park purposes. Also bearing on this issue is a letter dated November 16, 1955 from Norris Poulson, Mayor of the City of Los Angeles, to Frank B. Durkee, Director of Public Works of the State of California which letter is attached to the affidavit of Mrs. Harold C. Morton as Exhibit 'P' thereof. Said letter contains many statements which we are obliged to accept as true, including the following: 'In closing I [338 P.2d 926] want to again emphasize the importance of this unique park to the citizens of this community. It has its own water system. It is obviously a place of refuge in time of emergency. Civilian defense activities in this area could well rely greatly upon the use of this park under possible circumstances. It is and has been the playground of millions, and you propose to take it, not because it is the only way to construct the Golden State Freeway, but simply because you have determined to go through it rather than give consideration to an obviously available route of largely vacant land on the other side of the river.' (Emphasis added.)
A factual dispute is also established as to whether the exercise of authority by various state and city officials constituted an abuse of discretion or was arbitrary or in bad faith by letters attached as exhibits to the affidavits of George Hjelte and Mrs. Harold C. Morton. Specific reference is made to the following, as examples only:
Excerpt from a letter attached to the affidavit of George Hjelte as Exhibit 1 thereof, dated April 21, 1954 from P. O. Harding, Assistant State Engineer of the State of California to the Board of Recreation and Park Commissioners of the City of Los Angeles: 'Under date of December 2, 1952, the City Council formally notified the Division of Highways and the California Highway Commission that formal hearings by the Highway Commission would not be required. The California Highway Commission adopted and declared a freeway that portion of Route 4 and 161 as described above, on December 17, 1952.'
Excerpt from a letter attached to the affidavit of Mrs. Harold C. Morton as Exhibit 'E' thereof, dated February 3, 1955, from Frank B. Kurkee, Director of Public Works of the State of California, to the Department of Recreation and Parks of the City of Los Angeles: 'The City Council by official action has repeatedly urged the State to officially adopt this freeway and enter into a freeway agreement with the City at the earliest opportunity, to permit start of construction operations.'
Excerpt from a straight telegram attached to the affidavit of Mrs. Harold C. Morton as Exhibit 'L' thereof, dated October 21, 1955, from Chelso A. Maghetti, Secretary of the California, Highway Commission to Larry Norman, President, Los Angeles Recreation and Park Commission: 'The California Highway Commission has considered your renewed request by telegram, dated October 18, 1955, to reopen the subject of the route of Golden State Freeway as adopted by the Highway Commission in December, 1952. The action adopting the route was taken nearly three years ago. It was done at the urging and with the approval of elected representatives of City of Los Angeles. * * * In view of the history of this project, and the urgent necessity of getting this freeway in use to relieve traffic at the earliest possible date, the Commission feels that no public purpose would be served by further argument respecting the question of location which, from both a practical and legal standpoint, must be considered as settled.'
The above are merely some instances of factual disputes which should be resolved only after a plenary trial of the issues. Notwithstanding the above and other statements in the affidavits opposing the motions for summary judgment, it is argued on behalf of respondents denominating themselves 'State defendants' that 'there was to be no irreparable damage to property rights without court action.' In answer to this contention, the order of the trial court set forth hereinabove clearly states that there are questions involving property rights which could not be litigated in the condemnation action. Said respondents also contend that appellant has the 'opportunity in the eminent domain action' (People of the State of California v. City of Los Angeles, Superior Court File No. 643,327) 'to present the defense of lack of power so to divert the park use to freeway [State highway] use.' Even if this were a correct statement, and we are not stating that it is, the mere fact that appellant might have an opportunity to present a [338 P.2d 927] defense in another action does not mean that he cannot have it litigated in an action filed by him prior thereto in which he has stated a cause of action.
In making our determination in this proceeding, we reiterate that we are bound to regard the statements in the affidavits opposing the motions for summary judgment as true. Attached to the affidavit of Ruth Knight as Exhibit 2 thereof is a letter dated November 18, 1954, from the Board of Recreation and Park Commissioners of the City of Los Angeles to the City Council of the City of Los Angeles, which contains the following statement: 'On April 30, 1954, the Board requested an opinion of the City Attorney as to whether the action of the State Highway Commission in adopting a route for a freeway is final and irrevocable, to which he replied on July 9, 1954, that it was final and irrevocable, 'but such a route may be changed at any time even after the freeway has been built.'' (Emphasis added.)
In view of the above statements, we cannot regard the injunction as requested by the complaint herein against the erection of the virtually completed freeway to be 'useless,' as respondents City of Los Angeles and the individually named members of its Council represent it to be. Similarly, we cannot agree with the contention of respondents denominating themselves 'State defendants' that 'a declaration of whether the Freeway may be built on the park lands is moot because the Freeway has been already built.'
In Griffith v. Department of Public Works, supra, 141 Cal.App.2d 376, 296 P.2d 838, it was established that appellant was a proper person to bring the present action and that the complaint stated a cause of action. Under the rules set forth hereinabove concerning summary judgments, we are obliged to determine that issuable questions of fact exist, and that the action should be tried on its merits.
The judgment is reversed.
WHITE, P. J., and LILLIE, J., concur.