Willson Examined to Determine Whether Police Have Reasonable Cause

The primary question presented to us on this appeal is whether a police officer has reasonable cause to believe that a felony is being committed in an apartment at a designated address, when prior to the arrest of the person at such place, the officer received information by telephone from a person, who on three previous occasions gave information to said officer by telephone, which information on each occasion proved to be reliable, although the officer did not know the informant, but recognized his voice as that of the person from whom the officer had received such prior information. It is conceded that the question is one of first impression. It is, however, the contention of the People that such information was received from a reliable informant, and established reasonable cause for the arrest of defendant in the case at bar. That therefore, the search and seizure being incident thereto, was valid.

Reasonable cause has been defined by our Supreme Court as such a state of facts as would lead a man of ordinary care and prudence to believe, or entertain an honest, strong suspicion, that the person in question is guilty of a crime. Probable cause has been defined as a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.

In considering the question of reasonable or probable cause upon the part of the officer to arrest respondent, we are to look only at the facts and circumstances presented to the officer at the time he acted.

Applying the foregoing rules to the facts of the case now engaging our attention, we think it must be held that Officer Deiro had reasonable cause to believe that respondent may have been engaged in the commission of a felony.

It is true, as urged by respondent, that the Supreme Court in the case of Willson v. Superior Court, in discussing the subject of search and seizure without benefit of a warrant, said: ‘Although information provided by an anonymous informer is relevant on the issue of reasonable cause, in the absence of some pressing emergency, People v. Kilvington, an arrest may not be based solely on such information, and evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable.’ However, in the cited case it was held that evidence to justify the conclusion that reliance on the information was reasonable may be supplied by past experience with the informer. The Willson case is dissimilar to the case at bar in that in the former the San Diego police had had no previous experience with the unknown informer, while in the instant case there was presented to the grand jury evidence of Officer Deiro’s successful past experience with the informer. A reliable informant has been defined as a person whose information has in the past led the police to valid suspects. As was said People v. Boyles: ‘reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.’

National-Ben Franklin Fire Ins. Co. v. Woolcott

Oppenheimer v. Tamblyn

Board Argued that Omission Was a Misrepresentation As a Matter of Law

The board appeals from the judgment ordering issuance of the writ.

Appellant contends that by the use of the word ‘plumber’ in his experience record on the application Backman represented he was a journeyman; and that the failure to state he was not constituted a misrepresentation as a matter of law.

It is well settled that in a proceeding of this kind the hearing in the superior court is a trial de novo. ‘That the trial court in this case was ‘authorized by law to exercise its independent judgment on the evidence’ is well established. As stated in the last cited case Hohreiter v. Garrison, ‘Thus the ultimate power of decision rests with the trial court. The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury’s verdict. Appellate courts, therefore, if there be any reasonable doubt as to the sufficiency of the evidence to sustain a finding, should resolve that doubt in favor of the finding.”

Appellant argues the case as though this court has the power to reweigh evidence. That is not the law. Where, as here, the superior court reweighs the evidence and makes findings, the only function of the reviewing court is to determine whether those findings are supported by substantial evidence.

The question here is whether the evidence, viewed in the light most favorable to respondents, sustains the finding of the trial court to the effect that the charges against Backman were not supported by the weight of the evidence.

National-Ben Franklin Fire Ins. Co. v. Woolcott

Agnew v. Cronin

Backman Disciplined for Misrepresenting Work Experience in Application

On April 9, 1956 an accusation was filed by an investigator for the board, charging in substance that Backman had violated the Business and Professions Code in that, in his application for the individual license, he had misrepresented material facts with respect to his work experience and was therefore subject to disciplinary action. It was further alleged that since the partnership license was obtained on the basis of the license issued to Backman individually the partnership was also subject to disciplinary action.

A hearing was held by a hearing officer after which he found that Backman had misrepresented in his application that he had been a journeyman plumber and supervising employee for four years when in fact he had been only an apprentice plumber with no supervising authority for a substantial part of this period; the misstatement was as to a material fact relative to his experience; in reliance thereon a plumbing contractor’s license was issued; and the individual and partnership licenses were subject to disciplinary action. His recommendation that both licenses be revoked was adopted by the board.

Respondents Backman and Robinett petitioned the superior court for a writ of mandamus to compel the board to restore the licenses. The court found: the evidence adduced at the hearing on the accusation is insufficient to sustain the decision of revocation; the evidence before the board showed that respondents are not guilty of any of the charges alleged in the accusation or any of the violations of law charged therein; there is no substantial evidence that respondents had been guilty of any misrepresentation of facts in obtaining the licenses; there is not sufficient evidence to show that Backman made any misstatement of fact whereby he obtained any credit of three points of credit allowed him by the registrar; there is not sufficient evidence to show that Backman made any misstatement of any fact in his application or otherwise relative to his experience, as required by section 7068 of the Business and Professions Code; the evidence is conclusive that Backman neither knew of the granting of credits by the registrar until after he had been granted his license nor did he request the registrar to grant him any credits for his experience in his application or otherwise; the evidence is conclusive that Backman took the examination solely on the basis of his written application which he presented to the board in good faith; the finding of the hearing officer that the registrar, in reliance on Backman’s experience record, allowed an additional three points to Backman is not true for the reason there is no misstatement of facts in the application on which the registrar could have relied.

Rice v. Heggy

McCarty v. Macy & Co.

National-Ben Franklin Fire Ins. Co. v. Woolcott

The plaintiff in an action for money having died and the cause having been revived in the name of his administratrix, a cross-petition filed thereafter asserting a claim against the estate is subject to a demurrer unless it alleges that the claim was presented to the administratrix within four months of her appointment, as required by Section 10509-112, General Code.

This appeal on questions of law was taken from an order sustaining a demurrer to a cross-petition and a judgment dismissing it.

The action started as one for property damage allegedly caused by the negligence of the defendant in a collision of his automobile at a highway intersection with that of the plaintiff, Ernest Warner, with whom plaintiff, National-Ben Franklin Insurance Company, had a subrogation contract. Their petition was filed September 17, 1947.

November 29, 1947, plaintiff, Ernest Warner, died and Clara V. Warner was appointed administratrix of his estate. December 18, 1947, as such administratrix, she filed a motion to be substituted for her decedent herein and for an order reviving the cause, and it was granted the same day. August 24, 1948, the insurance company and the administratrix filed an amended petition which was identical with the petition except as the administratrix took the place of the decedent.

September 9, 1948, defendant filed his answer to the petition and with it his cross-petition for damages for personal injuries to himself and property damage to his automobile, both allegedly caused by the negligence of decedent, Ernest Warner, in the intersection collision of their automobiles. A general demurrer to the cross-petition was filed by the administratrix, and was sustained and the cross-petition dismissed because it did not allege that defendant’s claim against the estate had been presented to the administratrix within four months of her appointment.

If presentation of such claim was required, that it was done must be alleged in an action therefore, or the cross-petition was subject to demurrer.

Was presentation necessary? Defendant answers ‘No,’ and cites Goehring v. Dilard. In that case the defendant died after the action was commenced and it was revived in the name of the administrator, and the court said presentation of that claim was not necessary. That was quite different from this. There the action was commenced before defendant died. The administrator knew all about the plaintiff’s claim. Here, so far as this record shows, no claim against the estate was mentioned until after the death of Ernest Warner.

When this cross-petition was filed it was strictly a claim against the estate and there existed every reason why it should have been presented to the administratrix for her allowance or rejection as provided by the statute, the purpose of which is to facilitate the prompt administration of estates.

Benson, Admx., v. Rosine, this court had before it a similar situation, only there the corss-petition was filed within four months of the appointment, and it was urged that it was a presentation of the claim. The decision was that the filing of the cross-petition was not a compliance with the claim statute and that the cross-petition could not stand as such. Following that precedent, and for the reasons stated herein, the judgment dismissing this cross-petition will be affirmed.

Judgment affirmed.

National-Ben Franklin Fire Ins. Co. v. Woolcott, 86 Ohio App. 462, 93 N.E.2d 31 (Ohio App. 6 Dist. 1949).

Oppenheimer v. Tamblyn

Pagel v. Bailard

Rice v. Heggy

Plaintiffs-appellants, as the owners of certain lots, instituted the present action for declaratory relief, seeking an adjudication that the erection of multiple unit dwellings would not constitute such a violation of single family restrictions in the deed as to be actionable by the defendants. It was plaintiffs’ contention that certain violations of the deed restrictions had occurred within the contract and that there had been important changes in the character of the nearby properties and the population usage.

It was defendants’ theory that any violations or changes which had occurred were of insufficient character to warrant relief, and that it was not inequitable or oppressive to enforce compliance with the deed restrictions. The trial court found in favor of defendants.

The appellants now contend that ‘The subject deed covenants and restrictions are not enforceable as a matter of law’, either as equitable servitudes or as covenants running with the land, and that ‘The Chancellor should have invalidated’ the restrictions. It is asserted that ‘it is oppressive and inequitable to restrain plaintiffs from erecting the multiple-residential unit structures permitted them by the applicable zoning ordinances, particularly in view of the changes of character in the neighborhood and the actual past disregard of restrictions’.

No merit is discovered in any of appellants’ contentions. As pointed out in the respondents’ brief, the trial court heard detailed testimony offered in support of the various points and personally viewed the tract in question. From this evidence the judge determined that although certain changes had taken place in the neighborhood and there had been an increase in motor and pedestrian traffic, such facts ‘do not make it inequitable or oppressive to give effect to said deed restrictions’, and ‘That the purpose for which said deed restrictions, covenants and conditions were created can still be carried out and given effect to, notwithstanding the changes’.

Such decision, as in all similar cases, involves a determination of questions of fact, and each case must be decided upon its own merits. The record discloses substantial evidence in support of the trial court’s findings and, as said Robertson v. Nichols, ‘The findings of fact of the trial court in a case such as this are entitled to the same weight as in any other case. Its findings of fact, if based on any substantial evidence, are final, and his conclusions, sitting as a chancellor in equity, are entitled to great weight’. In such a situation as is here presented, there can be no appellate interference with the determination reached by the trial court.

The Robertson case just cited applied the test of an equitable servitude to deed language similar to that of the present case, and found that such a servitude existed. There, as here, after the recordation of a tract map the owner sold and conveyed the lots by deeds ‘which noted that the transferree was subject to and bound by each and all of the restrictions, covenants and conditions; and (2) each deed provided that the above mentioned conditions shall operate as covenants running with the land for the benefit of owners of all such lots in said tract and the breach may be enjoined, abated or remedied by appropriate proceedings by any or either of such owners’.

Appellants stress the point that some of the property in question has been rezoned to R-2 since the making of the deed restrictions, and argue that this rezoning should override the restrictions. The contention is untenable and such rezoning by no means compelled the trial court to declare that appellants were entitled to construct multiple unit dwellings which would violate the deed restrictions.

The situation Willkman v. Banks, is analogous to that of the present case. The reviewing court there says: ‘Appellants cry with alarm against the enforcement of an agreement they and their predecessors had made to preserve the home-like character of their community. We know of no authority to warrant the ruthless renouncement of a contract made to preserve and protect the rights of the contracting parties. The fact that the City of Los Angeles had rezoned tract 9854 to allow the construction of hospitals and sanitariums therein is not authority to violate the restrictive covenants’.

It is likewise argued that the trial court should have invalidated the restrictions for the reason that there had been departures from other provisions contained in the conveyances, such as restrictive racial covenants, and set-back restrictions. There is no merit in such contentions. The trial court’s action in modifying the thirty-five-foot set-back restriction where it appeared that houses had encroached to within thirty feet of the lot lines, was a proper exercise of judicial discretion; nor did it prevent enforcement of the single unit restrictions contained in the deeds.

Appellants have filed an ‘Application to Produce Evidence’, supported by the affidavit of appellants’ attorney stating ‘That your affiant has personally inspected deeds of conveyance issued both before the trial and after the trial of the within cause and has found that said deeds of conveyance of realty within Tract 1676 do not contain the subject restrictive covenants or any reference thereto’, a list of such deeds and photostatic copies of three of them, being appended thereto. In this connection appellant has cited cases such as Wedum-Aldahl Co. v. Miller, holding that ‘The omission from deeds within a tract of all reference to covenants and restrictions may be sufficient to constitute a waiver of the same’, and that this is one of the factors to be considered in weighing enforceability.

In opposition to this application respondents have pointed out that in the instant case ‘there has not been any challenge to the fact that the original grantor of Tract 1676 included the covenants and conditions in all of the deeds to all of the lots in the Tract’, and that here appellants are seeking to produce deeds which do not make reference to covenants, which were made long after all of the covenants had been imposed, and which have nothing to do with the question.

Respondents also call attention to the fact, supported by the record, that the case was tried upon the theory that the restrictions were valid but that appellants sought to avoid enforceability on the ground of alleged changed conditions. It is likewise asserted that even if validity of the deed restrictions was an issue, the proposed evidence would be irrelevant.

In appellants’ application to produce evidence, it is stated that ‘an issuable feature of the litigation was the observance of restrictions by various landowners within Tract 1676′. It is difficult to see, as respondents point out, ‘how subsequent deeds of conveyance, after the restrictions were established, would in any manner tend to show whether the land owners were or were not observing the already recorded restrictions’. Nor would such subsequent deeds throw any light on the question whether the subject matter of the original restrictions ‘fulfilled the legal pattern of enforceable restrictions’.

The findings are supported by substantial evidence; the judgment is supported by the findings, and no reversible error is apparent.

Appellants’ application to produce additional evidence is denied and the judgment is affirmed.

Rice v. Heggy, 158 Cal.App.2d 89, 322 P.2d 53 (Cal. App. 2 Dist. 1958).

Agnew v. Cronin

Pagel v. Bailard

Oppenheimer v. Tamblyn

Action against W. D. Tamblyn and others for malicious prosecution. Following the sustaining of a demurrer interposed by defendant Roger Arnebergh with leave to amend, plaintiff filed an amended complaint against Arnebergh only. Arnebergh demurred to the amended complaint. The court sustained his demurrer without leave to amend and entered judgment in his favor. Plaintiff appeals from the judgment dismissing the action as to Arnebergh.

The amended complaint alleges: On or about February 15, 1955, defendant maliciously and without probable cause ‘filed a complaint and instituted a criminal prosecution in Los Angeles, California, against the plaintiff herein, charging that plaintiff had purportedly violated section 679 of the California Vehicle Code, in said city.’ Defendant ‘acted with oppression, fraud and malice’ toward plaintiff. Plaintiff posted bail and paid $50 for the services of an attorney in defending against the charge. Plaintiff also alleges: ‘After a trial thereof, it was dismissed, and plaintiff’s bail was exonerated in December, 1955.’ The prayer is for recovery of the attorney’s fee and substantial general and exemplary damages.

The first question to be considered is whether the amended complaint states the substance of a cause of action for malicious prosecution.

The elements of a cause of action for malicious prosecution are: (1) A judicial proceeding favorably terminated; (2) want of probable cause; and (3) malice. Where the complaint alleges no facts from which it can be concluded that the prior proceedings terminated favorably to the plaintiff, it fails to state a cause of action. And, as the Supreme Court said in Jaffe v. Stone: ‘It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort. If the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff should have been acquitted. The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.’

Oppenheimer v. Tamblyn, was an appeal by plaintiff from a judgment of dismissal based upon an order sustaining, without leave to amend, the demurrer of defendant Wayne S. Vance to the original complaint in the present action. Plaintiff alleged therein that: ‘After due proceedings had in said criminal prosecution, it was dismissed.’ We held this allegation deficient as a pleading of favorable termination but we also held that although the complaint was subject to demurrer the court erred in sustaining the demurrer without leave to amend as it did not appear that the complaint could not have been amended to allege the fact that the charges against plaintiff had been dismissed on some ground which established or tended to indicate his innocence.

Plaintiff’s allegation that the prior criminal prosecution was dismissed after a trial is little better than his superseded allegation that it was dismissed after ‘due proceedings.’ The amended complaint was vulnerable to demurrer for uncertainty. But it does not follow that the demurrer should have been sustained without leave to amend. A trial may consist of a determination of issues of fact or of law. It does not appear that there was not a trial of the factual issues.

Dismissal of the charge against Oppenheimer would have been tantamount to an acquittal and would have satisfied the requirement of a favorable termination if, at the close of the People’s evidence, the court was convinced that it was insufficient to establish defendant’s guilt and the dismissal was ordered on that ground. 1 This conclusion is consistent with the rule that a dismissal of an information by a committing magistrate because of the insufficiency of the evidence to warrant holding the accused for trial constitutes a favorable termination. It does not appear that plaintiff could not have amended his complaint to allege the fact, if it be a fact, that evidence was introduced at the trial, that he was placed in jeopardy, and that the case was dismissed for insufficient evidence. Since it is error to sustain a demurrer without leave to amend unless it is clear that a complaint cannot be amended to state a cause of action, plaintiff should have been given leave to file a second amended complaint.

The second question requiring discussion is whether the court erred in taking judicial notice that defendant is the City Attorney of the City of Los Angeles, in ruling that defendant instituted proceedings against plaintiff in his official capacity, and in determining that he is immune from liability for malicious prosecution.

A violation of Vehicle Code, section 679 (operating a vehicle upon a highway in an unsafe condition) is a misdemeanor. Defendant argues that it is the function of the city attorney to initiate misdemeanor proceedings, and that since it is alleged that he filed a complaint charging plaintiff with a misdemeanor, he could only have done so while acting in that capacity. We are not persuaded by this reasoning.

Except as otherwise provided by law, all public offenses triable in inferior courts must be prosecuted by written complaint under oath subscribed by the complainant. It is the duty of the City Attorney of Los Angeles to draw complaints and to prosecute all misdemeanors committed within the city and within the jurisdiction of the municipal court of the district in which the city is located. But the jurisdiction of municipal courts in misdemeanor cases arising out of violations of state law, as distinct from violations of city charter or city ordinance, is not limited to cases which have been instituted by a complaint issued by the city attorney.

Furthermore, it does not appear upon the face of plaintiff’s amended complaint that defendant initiated the misdemeanor prosecution in his official capacity on the basis of information received by him in the course of his official duties. For aught that appears, defendant might have himself been the complaining witness and have verified the complaint and thus initiated proceedings against Oppenheimer as a private citizen. Defendant urges the contrary in reliance upon Norton v. Hoffmann. But that case is not in point. Chesebro and Hoffmann were sued for the malicious prosecution of an attorney who was charged with practicing law without a license; the complaint alleged that Chesebro was City Attorney of the City of Los Angeles and that Hoffmann was his deputy. The question arising upon their demurrer was whether the acts committed by them were within the scope of their official duties as prosecuting officers of the city and it was held that they were. The plaintiff contended that they were acting in their official capacities and it was alleged that they prosecuted the case. The court said: ‘It would appear from the complaint that what they did was under color of what was treated as authority derived from the public offices which they held.’ Such a conclusion does not follow from the amended complaint in the present case. It did not allege that Arnebergh prosecuted the case against plaintiff.

It should be a simple matter to obtain a determination upon a motion for summary judgment whether plaintiff can show that the dismissal amounted to an acquittal and that Arnebergh instituted the prosecution, if at all, in any capacity other than as city attorney. This would determine whether plaintiff is prosecuting the present action in good faith or is merely trifling with the court.

The judgment is reversed.

PARKER WOOD and VALLEE, JJ., concur.

—————

1 Upon the oral argument appellant stated ‘After trial of said action it was dismissed for lack of sufficient evidence and plaintiff’s bail was exonerated in December 1955′ etc.

Oppenheimer v. Tamblyn, 167 Cal. App. 2d 158, 334 P.2d 152 (Cal. App. 2 Dist. 1959).

McCarty v. Macy & Co.

Pagel v. Bailard

McCarty v. Macy & Co.

A general statement of the facts of these cases may be found in McCarty v. Macy & Co., and are as follows:

‘For many years respondents have operated a grain mill in Red Bluff. The old plant was destroyed by fire in October, 1951, and was replaced by a new one which opened for operation in 1953. Appellants are the owners and occupants of homes in close proximity to respondents’ mill. Four separate actions were filed by appellants in which they sought to enjoin the operation of the mill on the ground that the noise and dust therefrom constitute an abatable nuisance and to recover damages. The four cases were consolidated for trial, and apparently by stipulation of the parties the issue as to whether appellants were entitled to damages was expressly reserved for separate trial before a jury, and the court proceeded to try the equitable issue presented by the pleadings. At the conclusion of the trial the court adopted findings of fact and conclusions of law in each case, finding in substance that there was some noise and dust from the plant but not sufficient to interfere with the rest or peace of mind of persons of normal health, condition and sensibilities; that appellants’ properties had not substantially depreciated in value as a result of respondents’ operation; and that the issue of damages having been reserved for determination by the jury at a separate trial the court made no determination on that issue. On the basis of the facts found the court concluded that the plaintiffs had plain, speedy and adequate remedies at law; that there had not been shown sufficient cause for injunctive or other equitable relief; that such relief should be denied and that the several plaintiffs should be allowed to pursue their remedies at law if so advised. The court stated that immediately following the conclusion of trial of issues of law or abandonment of such issues, then judgment would be entered denying equitable relief.’

Following the determination of the former appeal, appellants in the four companion cases moved the court for leave to amend their complaints by abandoning the claim for money damages set forth therein by striking therefrom those portions relating to alleged damages. The motions were granted and judgments were then entered denying appellants’ injunctions or other equitable relief.

Appellants contend that the findings are unsupported by and are contrary to the evidence. There is no merit in this contention. The record shows that twelve disinterested witnesses testified for respondents. Eleven of them were people either residing or working in the immediate vicinity of the respondents’ plant. All of them testified that little or no dust or noise or other disturbance emanated from respondents’ plant at any time. Their testimony was in direct contradiction to that of the appellants and their witnesses. When two or more inferences can reasonably be deduced from the facts the reviewing court is without power to substitute its deductions for those of the trial court. The weight and effect of the evidence was a matter for the trial court to determine.

Appellants contend that under the pleadings they were entitled to a full and express finding as to whether they suffered damage. We do not agree with appellants for the reason that appellants have eliminated from this action the question as to what damages they actually suffered, if any. As hereinabove stated, the trial court found, in substance, that there was some noise and dust from the plant, but not sufficient to interfere with rest or peace of mind of persons of normal health, condition and sensibilities and with reference to the appellants’ real property specifically found ‘that plaintiffs’ said real property has not depreciated materially, if at all, in rental or sale value or otherwise. It is true that there are numerous residences in the vicinity of defendants’ plant, but it is also true that both said plant and plaintiffs’ home and premises are located immediately adjacent to the railroad right of way of Southern Pacific Company, and that the area in which defendants’ said plant and plaintiffs’ home are located is to a large extent used for commercial and business purposes and has been so used continuously for many years.’ We are of the opinion that the findings are amply sufficient on the issue of damages in so far as appellants’ rights to injunctive relief are concerned.

The following excerpt taken from the case of Frost v. City of Los Angeles, is applicable to the instant case:

”When an injunction to restrain a nuisance will produce great public or private mischief, a court of equity is not bound to grant it merely for the purpose of protecting a technical unsubstantial right.’ 2 Beach on Injunctions, § 1067. ‘The court may properly be guided by the consideration of the relative convenience of the parties; and if it appears that the benefit resulting to the plaintiff from the granting of the writ will be slight as compared to the injury to the defendant, the relief may be denied, and the plaintiff left to the pursuit of his remedy at law.”

The trial court having found that there was some noise and dust from the plant, but not sufficient to interfere with rest or peace of mind of persons of normal health, condition and sensibilities, and that appellants’ real property has not depreciated materially, if at all, in rental or sale value or otherwise it is obvious that any benefit resulting to the appellants from the granting of the writ would be slight as compared to the injury to the respondents. Consequently, appellants should be left to pursuit of their remedy at law. Further, as stated by the Supreme Court in the case of Anderson v. Souza:

”Contiguous property owners must to a reasonable degree yield their desired privacy to the general welfare which is contributed to by the operation of legitimate business. Were it not so, railroads could not operate near residences, and factories could not be established without the necessity of purchasing prohibitively large areas of property. That reasonable inconvenience must be suffered by owners whose holdings are contiguous to commercial enterprises is too well decided to require citation of authorities.”

The judgments are affirmed.

McCarty v. Macy & Co., 334 P.2d 156, 167 Cal.App.2d 164 (Cal. App. 3 Dist. 1959).

Agnew v. Cronin

Pagel v. Bailard

Agnew v. Cronin

Plaintiff brought an action for damages against John A. Cronin and others. Thereafter plaintiff sought to take the deposition of defendant Cronin, during the course of which refused to answer certain questions. Plaintiff thereupon filed a petition for a writ of mandate to compel Cronin to answer the questions. This court granted the petition (Agnew v. Superior Court, at page 160) and ordered that plaintiff ’shall recover his costs’. Plaintiff filed in this court, prior to the remittitur being issued, a request for allowance of his costs and damages, and that the judgment be modified so as to include such items. Cronin filed a notice of motion to tax costs. This court thereupon entered the following order: ‘Petitioner’s requested to fix costs and respondent’s motion to tax costs, are denied without prejudice to the making of appropriate motions in the superior court in the case of Agnew v. Cronin, et al., No. 65435.’

Thereafter Agnew filed in the trial court a memorandum of costs and damages claimed by him in the mandamus proceeding. This memorandum consists of 15 items totaling $652.50. Item 1 is fee for filing petition for writ of mandate, $7.50; Item 2, notary fee for verifying petition for writ of mandate, $.50; Item 3, service fee and mileage for serving copy of alternative writ of mandate on the superior court, $1.35; Items 4, 5, 6, 10, 11, 12, 14 and 15 cover charges for typing various papers and documents and copies thereof that were filed in connection with the mandamus proceeding; Item 7 represents notary public fee for typewriting citation to superior court re refusal of Cronin to answer questions at deposition hearing, $7.50; Item 8 is for ‘Legal advice and legal research work from attorney Wilbur F. Littlefield for his services concerning R. W. Agnew [petitioner] obtaining a writ of mandate in order that John A. Cronin be compelled to answer questions re deposition.’ Item 9 is for time lost by Agnew in making trips, holding conferences and investigating possibility of obtaining a writ of mandate to compel Cronin to answer questions at deposition hearing; Item 13 is for ‘Mental pain, grief, distress, torment worry, anguish, anxiety, annoyance, inconvenience, discomfort, and headaches suffered by R. W. Agnew in attempting to require John A. Cronin to answer questions at his deposition which he refused to answer.’

Cronin, in due course, filed a motion to tax costs in which he sought to have stricken all of the above mentioned items except Items 1, 2, and 3.

Angew filed notice of motion to have his costs and damages fixed in accordance with the above mentioned memorandum. At the hearing and these two motions the court taxed the costs at $16.85, this being the total of Items 1, 2, 3 and 7. The court granted Cronin’s motion to disallow, and ordered stricken all other items. It is from these orders that Agnew appeals.

By the terms of section 1095, Code of Civil Procedure, a successful petitioner in a mandamus proceeding is entitled to recover his costs. It was pursuant to this authority that we held Agnew v. Superior Court, that ‘Petitioner shall recover his costs’. But it will be noted that we stated ‘costs’–nothing more. As said Pezel v. Yerex, ‘The term ‘costs’ has a well-defined legal meaning, and includes only taxable costs, that is, those expenses which are incurred by parties in prosecuting or defending actions or proceedings and which may be taxed against the losing party.’ Costs are defined by Mr. Justice Vallee in Re Estate of Bevelle, as follows: ‘The term ‘costs’ means those fees and charges which are required by law to be paid to the courts or some of their officers, or the amount of which is expressly fixed by law.’ In Estate of Johnson, it is pointed out that ‘The right to recover costs exists solely by virtue of statute. Consequently an award of costs can be justified only if permitted by some statutory provision, and the measure of the statute is the measure of the right.’

Applying these principles to the items here involved it is clear that the trial court ruled correctly in disallowing and striking each of the disputed items and in taxing the costs at $16.85.

There is no provision in law for allowing as costs the items covering the employment of Helen Pattinson to type various and sundry documents that plaintiff served and filed or otherwise used during the course of the mandate proceeding. Miss Pattinson was not an official court reporter and it does not appear that any of these documents were prepared pursuant to any court order. The work of Miss Pattinson was such as is performed every day in any law office by the stenographic personnel. She was simply the private employee of Agnew just as any stenographer is an employee of the person for whom she works.

By item 8 Agnew seeks to recover as costs the fee of Attorney Littlefield for the legal services he rendered. Attorney’s fees in a mandate proceeding may not be recovered as costs.

Item 9 relates to loss of time by Agnew in connection with the mandate proceeding, and item 10 to asserted damages for mental pain and anguish suffered by him in attempting to require Cronin to answer questions which he refused to answer when his deposition was taken. There is no provision in law for allowing either of these items as costs.

No useful purpose would be served by analyzing the multitude of cases cited by plaintiff. The principles that are decisive of this appeal are simple and clear, and their application demonstrates its lack of merit.

The orders appealed from are affirmed.

Agnew v. Cronin, 167 Cal. App. 2d 154, 334 P.2d 256 (Cal. App. 2 Dist. 1959).

Pagel v. Bailard

Chaney Criminal Past – Convicted on Bookmaking Charges

It is our conclusion that the evidence, as above summarized, is clearly sufficient to sustain the conviction. An appellate tribunal may not weigh the evidence. Our sole function is to determine whether or not there was substantial evidence from which the trier of the facts reasonably could draw the necessary inferences and find the facts constituting the essential elements of the offense charged.

The following reference to earlier decisions contained in the recent decision of People v. Jackson indicates the sufficiency of the evidence in the case at bar. In People v. Burch, a woman said to defendant, ‘Give me two dollars to win on Willow Way in the first race at Hollywood Park,’ and defendant replied ‘O. K.’ This was held sufficient to show that defendant was engaged in bookmaking and accepted a wager on a race. In People v. Chaney, the officer heard the defendant say he wanted two to win on Jet Action in the eighth at Gulfstream, and defendant’s reply ‘Okay.’ This was held to clearly justify an inference that Fraser was placing a bet on the race in question and that defendant was accepting such bet. In the Burch case, supra, the court pointed out that a volume of gambling is unnecessary to establish the offense, and that accepting one wager constitutes a violation of the code section.

In People v. Meade, a conviction was sustained upon evidence similar to that here presented. In that decision the court commented: ‘The testimony hereinabove narrated discloses that at the time of his arrest, appellant was in possession of betting paraphernalia, to-wit: a piece of scratch sheet, containing penciled notations respecting various horses running in races at Santa Anita on the day in question. Moreover, his telephone conversations in the presence of the witness Ward were directly related to these notations.’

Exception in Horse Racing Act Permitted Wagering

Petitioner’s Investigator Argument Lacked Merit

Pagel v. Bailard

Exception in Horse Racing Act Permitted Wagering

Appellant argues that the cryptic language of the conversation overheard by Officer May was meaningless without explanation in the form of expert testimony. We think this argument is based upon an unrealistic premise. In recent years, the advertising and reporting of horse racing events and the discussions of the terms and results of wagering thereon, have become so extensive in every modern medium of communication that it would be a rare individual of adult years who had not by now acquired, either voluntarily or involuntarily, a fairly adequate understanding of the essential elements of these wagering contracts and of the terms in which they are made. Even if he did not understand the precise terms of the wagering contract as expressed in the language of the testimony, the average individual would at least understand that, in the context of their utterance, the words ‘Give me 2 and 2 on Master Boing in the seventh’ constituted an offer to wager on a horse race; that the response, ‘Okay’ was an acceptance of the offer, and that the entry on the scratch sheet was intended to be a record of the wager. Such understanding, we are sure, is well within the scope of common knowledge in this jurisdiction.

The failure of the appellant to testify or to offer any evidence in his own behalf could have been considered by the trial court ‘as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.’

Appellant’s contention that the trial court lacked jurisdiction is equally untenable. Although not clearly articulated, the essence of the argument seems to be this: that Section 19662 of the Business and Professions Code, being a later and special enactment, superseded the provisions of Penal Code with respect to cases in which the wagering involved horse racing in California, and that said Penal Code section remains applicable only to wagering on horse races at meetings outside the state. Any person wagering upon the results of a horse race, except in the pari-mutuel or mutual method of wagering, when the wagering is conducted by a licensee and upon the grounds or inclosure of the licensee, shall be punished as provided in the Penal Code.

The foregoing statute was enacted in 1941 and derives from the Horse Racing Act. The Horse Racing Act from which were derived the statutory enactments relied upon by appellant ‘merely provided one exception under which one form of betting on horse races was permissible in California. It is clear from a study of the act of 1933, as amended, that the Legislature not only did not intend to repeal the general law prohibiting general betting and registering of bets on horse races, but intended that the law remain in force subject to one exception, namely, that pari-mutuel betting be permitted if conducted in the manner and under the conditions specified in the act.’

The judgment, and the order denying motion for a new trial are, and each is affirmed.

Attorney Blows Opportunity to Cross-Examine Bush

Court Ruled Plaintiff Failed to Prove Mistake by Counsel

Court Rejects Draper Argument in Evidence Issue

LeCyr Cited for Amended Pleadings Issue