Stafford v. People Ex Rel. Department of Public Works

SHINN, P. J.

This purports to be an action in inverse condemnation. The complaint alleges that plaintiff has an interest in three town lots in the Athens District of Los Angeles County; one of them was conveyed by plaintiff to his wife as security for a debt; the two others have been acquired by the beneficiary of a trust deed. It is alleged that plaintiff has a right to redeem the first lot from his wife and that he has an option from the present owner to purchase the two other lots, all of which facts, it is alleged, are known to the defendants. The first lot has an inoperative oil well having a value of $100,000. On the other lots there are two inoperative oil wells having a value of $150,000. It is alleged that defendants propose to locate a highway through the lots which would destroy the oil wells and compel their abandonment and that defendants have paid nothing and propose to pay nothing for plaintiff’s interest in the lots. It is alleged that there is another and better route for the highway which would not involve the taking of plaintiff’s property. The complaint prays for $250,000 as damages if plaintiff’s interest in the property is taken and for judgment requiring defendants to adopt an alternate route for the highway. Defendants appeared specially and moved for an order quashing service of summons and dismissing the action “upon the grounds of lack of jurisdiction of the court over said defendants.” The motion was granted and judgment of dismissal without prejudice was entered which recites that the complaint does not state sufficient facts to constitute a cause of action for equitable relief and that it appears that the plaintiff had not presented his claim to the State Board of Control in compliance with section 16021 of the Government Code. Plaintiff appeals from the judgment and from orders respecting costs of suit.

An affidavit of one of defendants’ attorneys was filed with the notice in which it was averred that there was no record of the giving of an undertaking by plaintiff as required by section 16047 of the Government Code. Also filed was an affidavit of another of defendants’ attorneys in which it was averred that he had been informed that service of process had been attempted by service upon A. H. Henderson, Deputy

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Director of Public Works. The court granted the motion and by its judgment quashed service of summons and dismissed the action. It appears that the ground of the motion was that service was made on the deputy director rather than upon the director himself and that the service therefore was invalid (Gov. Code, § 16048). Defendants do not undertake to justify the order quashing service and the point will be deemed to have been waived. However, it is immaterial on the appeal whether it was error to quash service of process.