City of Los Angeles v. Agardy

THE COURT.

The City of Los Angeles appeals from a judgment of dismissal and the order taxing costs entered in the above-entitled action in favor of Jennie and William L. Riley. The facts are undisputed and are as follows:

The city in 1923 commenced the above-entitled action for the purpose of condemning for street purposes certain parcels of real property. The action was instituted under the provisions of the Street Opening Act of 1903 (Stats. 1903, p. 376, as amended). Among the numerous defendants in that action were respondents herein, Jennie and William L. Riley, owners of part of the property sought to be condemned. After the usual proceedings in such actions an interlocutory judgment assessing the damages of respondents was made and entered on August 17, 1925. The damages so assessed were never paid. On .August 6, 1926, in another action in the same court entitled

Blackburn

v.

City of Los Angeles,

to which action respondents were not parties, the city was permanently enjoined from further proceeding under the ordinance authorizing the improvement. The judgment in this action has long since become final. Subsequently the city council of Los Angeles, by resolution, authorized the city attorney to present to the council an ordinance abandoning the entire proceeding. No further steps were taken by the council in reference to the proposed ordinance of abandonment. Apparently, some time later, new proceedings were commenced involving the same improvement. On June 14, 1930, respondents Riley filed a notice of motion to dismiss the original action on the ground that it had been abandoned, and for a judgment of dismissal and for costs and attorneys’ fees pursuant to the provisions of section 1255a of the Code of Civil Procedure. Both parties filed affidavits, the defense of the city being predicated on the Blackburn injunction. The trial court ruled that the city .had abandoned the action within the meaning of section 1255a of the Code of Civil Procedure, and that respondents were entitled to recover their costs including attorneys’ fees. The Rileys thereafter filed their

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cost and disbursement bill for over $8,000, and appellant moved to tax costs, challenging the various items as excessive and unlawful. In January, 1931, there was entered a minute order of the trial court taxing costs of respondents in the sum of $4,335. The award was made in a lump sum without specifying the items thereof. The city appeals.