Felice v. City of Inglewood

In Felice v. City of Inglewood (1948) 84 Cal.App.2d 263, the plaintiff sought superior court review by way of a writ of mandate of the city council's denial of his petition for a business permit. A petition was filed and an alternative writ issued, and the defendants filed a demurrer, accompanied by an "offer and submission by defendants of all documents and instruments on file in response to order to show cause." A hearing was had on the petition, demurrer, and alternative writ, after which the court overruled the demurrer, denied the peremptory writ, discharged the alternative writ, and ordered judgment for defendants ( Felice v. City of Inglewood, supra, 84 Cal.App.2d at p. 265). The findings of fact and conclusions of law of the Felice court (at p. 265) recited: ". . . that in conducting the hearing the court 'considered the Plaintiff's First Amended Complaint or Petition and all supporting documents and evidence presented and submitted by the plaintiff, and . . . the response of the defendants and all documents and evidence presented and submitted by defendants in making their response, answer and defense in said matter.'" The first ground of appeal of the plaintiff in Felice, was ". . . that the judgment was erroneous for the reason that no verified answer was filed after the demurrer was overruled, and no trial of the issues was had." ( Felice v. City of Inglewood, supra, 84 Cal.App.2d at p. 265.) The Felice court responded (at pp. 265-266) that: "The 'offer and submission' of affidavits of respondents and certified copies of documents, instruments and proceedings filed contemporaneously with the demurrer as an 'answer and response,' although not conforming to standard practice, must, in the absence of objection made by appellant at the time of the hearing, be construed both as an answer to the petition for a writ of mandate and as evidentiary matter relating to the issues raised by the petition. Since they were filed for the purpose of controverting the allegations of the petition and of stating matters in defense thereof, and the record does not disclose that appellant (1) objected to the filing of the various affidavits and documents, or (2) objected to their consideration by the court upon the hearing, either as denials of the allegations in the petition or as defenses thereto, or as evidence controverting the same, or (3) requested leave to file affidavits answering or denying any of the affidavits and documents presented by respondent, or to offer evidence in denial thereof, it must be assumed that he was satisfied with the record and was willing to submit the case to the court without further pleadings or evidence." At no time during oral argument at the hearing below, or in their objections to the proposed findings of fact and conclusions of law, or in any of the postjudgment proceedings, did appellants raise any objections to the procedures followed by the superior court, either by objecting to the filing of the documents, objecting to their consideration by the court, or by requesting leave to file additional documents. It thus ". . . must be assumed that they were satisfied with the record and were willing to submit the case to the court without further pleadings or evidence." ( Felice v. City of Inglewood, supra, 84 Cal.App.2d at p. 266.) The second ground of appeal of the plaintiff in Felice, was that he did not stipulate that the matter should be heard on the affidavits and documents. The court responded that this ground was unsupported by the record, noting that: "The recital in the findings . . . and the declaration in the judgment that 'documentary evidence having been introduced, and the matter and the issues involved argued and submitted for decision' is conclusive that no objection was made to the procedure followed. Appellant had the privilege and opportunity of presenting evidence on his own behalf and of controverting that presented by respondents but failed to take advantage of his opportunity." ( Felice v. City of Inglewood, supra, 84 Cal.App.2d at p. 266.) Finally, the Felice court concluded: "If appellant was dissatisfied with the action of the court in deciding the case and rendering judgment on the record before it at the hearing his objections should have been presented to the trial court by a motion for a new trial, supported by affidavits stating the facts as to whether he consented or objected to the procedure adopted by the court. No affidavits having been filed indicating that appellant did not approve the submission of the cause in the manner above described, we must accept the declarations of the court as found in the findings and judgment." ( Felice v. City of Inglewood, supra, 84 Cal.App.2d at p. 266.)