Silver v. City of Los Angeles

HERNDON, J. Plaintiff appeals from the adverse judgments entered against him in three separate taxpayers’ suits whereby he seeks to set aside a certain oil and gas lease entered into by the City of Los Angeles. These cases were consolidated for all purposes by an order of the trial court made on its own motion. Although numerous propositions have been presented and argued by appellant at great length, the determinative issues are relatively simple both in essential statement and in the process of resolution.

Appellant filed his original action in 1956. By his pleadings, by formal stipulations, and by numerous statements and admissions made during the pretrial, trial and appellate proceedings, appellant had made clear his belief that the facts of the case did not establish, and that he did not intend them to establish, any actual fraud on the part of the defendants. Following a lengthy trial, judgment was entered in plaintiff’s favor.

This judgment was reversed in Silver v. City of Los Angeles, 57 Cal.2d 39, wherein at page 42 [17 Cal.Rptr. 379, 366 P.2d 651] the court stated: “All that was required of defendant municipality was that its agents act fairly in all matters respecting the proper discharge of their duties. [Citation.] Since it was stipulated that there was no actual fraud, corruption, bad faith, or undue influence, there is no basis for contending that they did nor act fairly.

“On the contrary, in view of the stipulation it must be found that defendant counoilmen applied their honest, considered judgment to the problem at hand. Under such circumstances, they are answerable to the electorate, but not the courts, if they were mistaken or were wanting in business acumen. [Citation.]

“There is no merit in plaintiff’s contention that though he stipulated there was no ‘actual fraud,’ he did not waive the fact that there was ‘constructive fraud,’ because (1) the trial court found, in effect, that there was no proof of constructive fraud, and (2) the record contains no evidence of constructive fraud, which fact was recognized by plaintiff in his oral argument, since he pointed only to facts which would have constituted actual, and not constructive, fraud.

“Applying the above-stated rules of law to the undisputed [54]factual situation in the present ease, plaintiff as a taxpayer in his representative capacity cannot maintain the present action. ’ ’