Lahn v. Structural Pest Control Board

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[Civ. No. 20902. Second Dist., Div. Two. Aug. 31, 1955.]

ARNOLD LAHN, Appellant, v. STRUCTURAL PEST CONTROL BOARD, Respondent.

COUNSEL

Hiram T. Kellogg for Appellant.

Edmund G. Brown, Attorney General, and Donald D. Stoker, Deputy Attorney General, for Respondent.

OPINION

McCOMB, J.

From a judgment denying a peremptory writ of mandate to defendant, directing it to restore plaintiff's license and to vacate its decision holding that plaintiff had violated provisions of the Structural Pest Control Act of the State of California, plaintiff appeals.

Plaintiff contends that:

(1) The judgment in the writ of mandate proceedings is not sustained by the evidence upon which the decision was based, and

(2) The evidence is insufficient to show that plaintiff was guilty of a violation of the Structural Pest Control Act of the State of California.

[1] These contentions are not available to plaintiff upon this appeal for the reason that the judgment of the trial court recited that findings of fact and conclusions of law were waived by the parties to the proceeding. The rule is established that recitals in a judgment are presumed to be true and correct unless contradicted by other parts of the record. (Doran v. Burke, 118 Cal. App. 2d 806,807 [3] [258 P.2d 1078]; Kritzer v. Tracy Engineering Co., 16 Cal. App. 287, 290 [116 P. 700].) In the instant case there is nothing in the record contradicting the recital in the judgment that findings of fact and conclusions of law were waived by the parties. Hence the foregoing rule is applicable and this court is bound to assume that such recital is a true statement.

[2] It is likewise settled that when findings of fact are waived it will be presumed on appeal from the judgment that every fact essential to support the judgment was (a) proven by substantial evidence, and (b) found by the court in favor of respondent (defendant in the instant case). (Bekins Van Lines, Inc. v. Johnson, 21 Cal. 2d 135, 136 [1] et seq. [130 P.2d 421]; Snyder v. Snyder, 102 Cal. App. 2d 489, 491 [1] [227 P.2d 847].) Since the findings of fact and conclusions of law were waived by plaintiff in the instant case, this court will presume in accordance with the foregoing rule that the [135 Cal. App. 2d 291] trial court found in favor of defendant on all essential issues and against plaintiff on such issues, and that its findings were supported by substantial evidence.

In view of our conclusions it is unnecessary to discuss other arguments of plaintiff.

Affirmed.

Moore, P. J., and Fox, J., concurred.