Lusk v. Compton City Sch. Bd. of Educ.

California Court of Appeal Jul 6, 1967 No. Civ. 30567Published

Before: Bishop

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Holding. The court held that the plaintiffs stated a valid cause of action by alleging that the school board acted fraudulently by predetermining its decision to acquire a school site and failing to give bona fide consideration to mandatory reports and public testimony. Consequently, the trial court erred in sustaining the defendant's demurrer without leave to amend.

Issues

Whether a taxpayer has the right to maintain an action against a school board for fraudulent failure to perform a duty specifically enjoined by law.
Whether the plaintiffs' complaint sufficiently alleged fraud to survive a general demurrer.

Disposition. reversed

Quotations verified verbatim against the opinion

“A taxpayer may sue a governmental body in a representative capacity in cases involving fraud ... on the part of the governmental body to perform a duty specifically enjoined.”

“[I]t appears that plaintiffs have alleged that defendant fraudulently . . . avoided compliance with the requirements of section 15005 of the Education Code. Therefore, a cause of action was stated against defendant”

[377]

BISHOP, J. pro tem.

The defendant school board, headed toward the acquisition of a school site within two miles of an airport, had its plans brought under review by this action, commenced by some residents and taxpayers of the school district, who sought a judgment declaring the selection and acquisition of the proposed site void, and enjoined. A demurrer to the complaint, already once amended, was sustained without leave to amend, and in due course a judgment of dismissal followed. Many of the plaintiffs joined in an appeal from the judgment, We are unable to distinguish this case, at its crucial point, from

Gogerty

Coachella Valley Junior College Dist.

(1962) 57 Cal.2d 727 [21 Cal.Rptr. 806, 371 P.2d 582], and for that reason are reversing the judgment.

The circumstance that the proposed site for the new school is within two miles of an airport makes sections 15005 and 15005.5 of the state Education Code applicable to defendant’s program, as well as section 15004. Section 15005, at the time of the events covered in the

Gogerty

case, and at the time of those with which our complaint is concerned, began with this sentence: “To promote the safety of pupils, comprehensive community planning, and greater educational usefulness of school sites, the governing board of each school district, including districts governed by a city board of education if the proposed site is within two miles, measured by air line, of that point on an airport boundary . . . before acquiring title to property for a new school site . . . shall give the State Department of Education notice in writing of the proposed acquisition. . . .’’

We infer that the direction of this sentence was complied with, for the sixth paragraph of the amended complaint relates that the defendant school board had received, from the Department of Education, a report from the Civil Aeronautics Commission, which it (the department) had selected to investigate and report regarding “the possible hazardous conditions which might result from locating a school’’ as proposed. The report, the paragraph concluded, “found said site to be hazardous and that it would be disturbed by frequent noise from low flying aircraft.’’ The Department of Education, the complaint then states, wrote the defendant, on January 7, 1965, “relating the unfavorable report by the Civil

Lusk v. Compton City Sch. Bd. of Educ.

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