*1 language bring urged as to it within plaintiff capacity of Francisco, Cal.App. City County & San of Schulstad P.2d 2d 105 68]. liability municipalities, established that the Cases have their negligent for the acts of districts counties and school statutory pro solely from employees is derived officers and Any plaintiff, therefore, must fulfill visions in this state. claim be filed mandatory requirements that a verified maintaining suit under statute and prerequisite as a cause of action. such a claim is fatal to the failure to file Superior Court, 20 Cal.2d High Dist. v. Redlands School 490]. Judgment affirmed.
White, J., Doran, J., concurred. 29, 1953, petition rehearing
A denied June Supreme appellant’s petition hearing by Court was for a August opinion Carter, J., denied was of the 6, 1953. granted. should be No. 19538. Second Dist., [Civ. Div. One. June 12, 1953.] A. MARGUERITE PALMER al., et Respondents, v. WIL- LIAM FOX, J. as Chief Engineer, etc., al., Appellants. et *2 Armstrong Appellants. Donald for Respondents. Loren Miller and Harold J. Sinclair (Robert H.), pro tem. are husband SCOTT J. Plaintiffs property city and wife who own vacant residential county Angeles. They Palos Verdes of Los desire Estates, property single family to construct on their residence. A for a writ of filed in the trial court mandate was seeking compel building permit the issuance of a to enable proceed them prin- with the construction. It named as cipal county department engineer chief safety. employed He under con- had process applica- tract with the of Palos Verdes Estates to permits city. tions and issue for construction within the adopted Angeles County building had the Los deputy assigned represent its own. A Fox in kept this matter and office hours *3 purpose. that
Plaintiff permit husband left and for deputy upon plaintiff’s with the return get building to his permit was that he clerk, told would have to see the who plaintiff get in turn he able told would not be to prohibiting because of deed property restrictions the use of in Palos Verdes Estates Plaintiff non-Caucasians. took his and left the office.
At the trial this action the were appeared introduced in evidence. It changes then that in necessary require- them were to make them conform to the They ments of the code. were withdrawn and modi- fied and were reintroduced in evidence. The trial court then they fully complied legal requirements, found that with all concluded that were entitled to have a to issue one to them. ordered deputy Defendant offers no excuse for the conduct of his referring plaintiff city clerk, to the or the conduct of the opinion concerning legality who an erroneous “held the of racial deed restrictions” and who “had whatsoever.” the matter compel performance is
Mandamus never distinguished has been actual as from of an act until there 456 (Friedland anticipated Superior Court, refusal.
an v. 67 Cal. App.2d 90].) apparent 619, 628 P.2d It is that [155 deputy refusal the referral defendant’s was in effect a “Any part to act. conduct on the of the officer or tribunal perform signifying unequivocal under a intention (55 66.) not to Plain do so amounts to a refusal.” C.J.S. plans processed tiff was at that time entitled to have his legally why have some sufficient reason stated to him de fendant refused to do so. Defendant concedes that the evi clearly only person dence that in the shows offices of the accept of Palos Verdes Estates who was authorized to plaintiff’s application deputy. and to act was his It thereon appears accept nowhere thereafter offered to plaintiff’s plans processing, and his refusal must be deemed up to have continued to the time when this action was com “ petitioners’ right menced. to relief is determi nable the facts as existed at the time the (American City Council, Sausalito, filed” Dist. v. 34 Tel. Co. 704, 1247]). A.L.R.2d “ compelled by The act which will be mandamus must performance complaining be one to of which proceeding. at institution of his It is the is entitled enjoined by neglect which is refusal or act present duty very that serves as the foundation the law as ’’ (McGinnis Mayor proceeding. Council, & Common Cal. “Among guided the rules which courts are in the (1) following: issuance writs of mandate are the writ proper compel issue, case, in a the exercise of dis (2) ; discretion, cretion will never to control either It issue proper thereof; (3) case, In a before or after the exercise An the writ will issue to an abuse of discretion. correct discretion, however, abuse of is not the exercise of discretion beyond (4) but action the limits of It will issue discretion. certain, definite, where the is act to be commanded exercised, fixed. discretion Where has the definite thing limits of commanded to act. Where the discretion *4 exceeded, have been the definite command is to act within Cal.App. (Browning Dow, 680, v. 60 682 such limits.” [213 707].) P. plans specifica- are entitled have
Plaintiffs now to their and processed by tions defendant. When these conform the to provisions date, code as amended to and when plaintiffs complied requirements other have with certain im-
457 posed, permit. defendant should issue them a In the time elapsed may of since trial this action it well be that build- ing provisions amended, code have been and are en- prompt titled to and courteous treatment in modifying every their detail will con- present provisions. form to general
While it is the rule that will mandamus lie to control the public discretion of the official, meaning by that that it will not lie to force the exercise of discretion in particular manner, mandamus lie to abuses of correct discretion particular to force a action the officer when clearly the law petitioner’s right establishes to such action. (Inglin Hoppin, v. 156 483, Cal. P. [105 writ will issue specifically where the enjoined by one reason of office,trust, or (Code station Proc., 1085) Civ. § or imposes upon where the law specific officer such duties which he refuses to because of an erroneous con legal clusion as his (Hartsock duties Merritt, v. Cal. App. 431 381]), or petitioner where is entitled law to a certain action (Inglin Hoppin, supra). Consoli Printing dated & Pub. Co. v. Allen, P.2d 884]. interesting
Two other considerations enter into the case. Jury.” The first relates to the “Palos Verdes Estates Art city provides: between contract defendant and the “County agrees that no shall -be hereunder building plans any building inspected unless shall first approved by Jury.” have the Palos Verdes Art Blue- prints original plans 17, 1950, of dated June evidence in stamp: case, Jury—design this bear the “Palos Verdes Art approved approval plan R.R.S. Oct. 1950. The of this approve any held shall not be the violation of or protective restrictions, or amendments ordinances of Palos Any approved plan Verdes Estates. deviation must from approval jury prior have of execution. art A certificate completion only subject will be issued to above.” dispense approval The trial court undertook to with the amended Palos Verdes jury, Estates art jury right power because it found that the has design approve color, changes and that did not design alter the or color. It further found there is “that necessity Jury require of the said Art approval specifications” second of the aforesaid (referring during trial). to those This amended issue *5 pleadings by the and the raised Palos Verdes Estates
was not party body jury was not a defendant either a or as art as They thereof. in way individual members would no be bound approval judgment the and without their defendant could permit. If it contract issue a be asked whether not under his jury agency not was of the council which the art party defendant, named as a we are with confronted the conclusion council had no trial court’s that judgment plaintiffs and its “that take function City nothing from defendant Council of Palos Es- Verdes tates.” generally “will not be
Mandamus where its depend thing to upon and the be done act, effect the operative of a third co-operation person, not or a approval, its issuance under such since proceedings, circumstances the. ordinarily nugatory, having power court be the no would person.” (34 third such 865.) of Am.Jur. action coerce the expressed court trial as findings, of the its opinion testimony from parties, justi all interested hearing the after approval jury the Palos that Verdes art of belief the fies specifications will not be withheld because amended residence, constructed, when would meet not its plaintiffs’ not assume that may jury We art will requirements. or will abuse the discretion vested in refuse to act it. or fail merely is permit comple Issuance plaintiffs’ plans processing of he and would by him of the tion plain to withhold the right or when have prerequisites complied with its issuance. have tiffs required and pre authorized to do a official When an prescribed contingency, his functions are upon act scribed may mandamus be issued to only, and control his ministerial (16 contingency. happening of Cal.Jur. upon the action Funeral Drummey Board Directors Em v. State & of balmers, relates to restrictions consideration as to set- The second court found defendant not the trial need lines which back expressed find no resistance on enforce. We notice legally proper which are restrictions part finally amended and plans as submitted that and assume they respects. any If for reason proper in those be will preclude appro- in this ease would not, our decision are rights and enforce not deter- legal to declare action priate proceedings. in these mined to the trial court with direction remanded ease is judgment so the writ issued to defendant
amend its that processing plain- require to facilitate the will any point and to tiff’s out specifications necessary that amendments fully comply present building require- with ments, when these amended approved jury have Verdes Estates the Palos art *6 the defendant shall issue for construction As judgment their residence. thus is affirmed. amended the Each appeal. to hear his on own costs J., White, P. concurred.
DORAN, J. my opinion I order dissent. In should qualification. he reversed without Whether specifications originally presented were sufficient as issue. The court In cir- found that were not. cumstances the jurisdiction assuming court exceeded its the functions of the vested officials with to determine sufficiency in the instance. If first another requirements may is filed the be same.
A petition for rehearing was denied June 1953. No. Dist., 19509. Second
[Civ. Div. Two. June 1953.] H. J. RICHARDSON, Respondent, THE WALTER LAND
COMPANY (a Corporation), Appellant.