BONANDER v. TOWN OF TIBURON

Filed 1/31/07; pub. order 2/22/07 (see end of opn.)

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

STORY CONTINUED FROM PART I..

Our analysis would not be complete without addressing the language in section 10601 limiting who may file a validation action. On its face, the statute appears to allow such actions to be filed only by the public agency and one interested personthe contractor. ( 10601.) During oral argument in this appeal, appellants counsel pointed out that the legislative amendment restricting the application of 10601 to the legislative body and the contractor was adopted at the same time the Legislature originally enacted the validation statutes in 1961.[1] (Compare  10601, as amended by Stats. 1961, ch. 1526,  1, p. 3364, with former  10601, as added by Stats. 1953, ch. 192,  4, p. 1192.) The implication is that the Legislature specifically intended to relieve interested persons other than the contractor from having to comply with the validation statutes in a challenge to an action taken pursuant to the 1913 Act. For reasons that follow, we conclude such an interpretation of section 10601 is insupportable.

If differing interpretations of a statute are possible, our task is to interpret it in a workable and reasonable manner. (See Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 832.) The interpretation urged by appellants would lead to the odd result that the procedures in litigation to determine the validity of governmental acts would vary depending upon who filed the action. Whereas a public agency and a contractor would have to publish the summons in such an action, any other interested person could simply serve the summons on the public agency and any other named parties without having to comply with the publication requirements of the validation statutes. The consequence of this differential treatment would be that a lawsuit filed by a public agency or contractor would be an in rem action, the outcome of which would be conclusive and binding on everyone, whereas an action filed by any other interested person would be an in personam action that would yield a result binding only upon the parties to the litigation. Such a result is at odds with the purpose of the validation statutes, and it further suggests that challenges to an action of a public agency could be decided on a piecemeal basis through individual, in personam actions. But the validity of a matter is not decided piecemeal. That is the reason validation action are designated as actions in rem. When any person files a validation action, the validity of the matter is decided once and for all in that action. ([Code Civ. Proc., ] 870.) (Katz, supra, 144 Cal.App.4th at p. 1032.)

Section 10601 does not preclude the filing of a reverse validation action by an interested person. Reverse validation actions are authorized by section 863 of the Code of Civil Procedure, which provides that an interested party may file such an action in any case in which the public agency could have filed a validation action but did not. Thus, the relevant issue for purposes of Code of Civil Procedure section 863 is whether the public agency could have brought a validation action. (See Kaatz, supra, 143 Cal.App.4th at p. 32.) Because section 10601 authorizes a public agency to bring a validation action, an interested person may file a reverse validation action under Code of Civil Procedure section 863. The restriction contained in section 10601 limits who may file the action authorized by that section; it does not limit the filing of the action authorized by section 863 of the Code of Civil Procedure. Accordingly, applying a workable and reasonable interpretation of section 10601, we conclude the validation statutes apply to a legal challenge to an assessment levied under the 1913 Act.

Appellants complaint plainly constituted a challenge to the validity of an assessment levied under the 1913 Act. Appellants sought to invalidate the resolution creating the District and adopting the assessment. It is immaterial that appellants sought injunctive or declaratory relief in addition to a writ of mandate. Regardless of how parties may choose to denominate their causes of action, they are governed by the validation statutes if the matters addressed in them could be adjudicated in a validation action. (Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 849-850.) Appellants complaint related exclusively to actions taken by the Town pursuant to the 1913 Act in order to create the District and levy assessments. It did not raise issues beyond the scope of what could be adjudicated in a validation action challenging the Towns Resolution No. 21-2005. (See Katz, supra, 144 Cal.App.4th at pp. 1033-1034 [declaratory and injunctive relief merely constitute request for invalidation stated in other words]; but see City of Ontario, supra, 2 Cal.3d at p. 345 [injunctive and restitution causes of action went beyond challenge to agreement that was subject to validation action].)

Appellants seek to avoid the requirements of the validation statutes by claiming they sought, at least in part, a remedy limited to their own properties. They claim the trial court erred by dismissing their complaint in its entirety instead of allowing them to proceed to the extent their complaint sought remedies specific to their properties. The implication is that the validation statutes are inapplicable when interested persons do not seek to invalidate an assessment district as a whole but rather seek only to invalidate or reduce the special assessment levied on their particular properties. Appellants contend that a court need only acquire jurisdiction over the affected real property in such a case and not over all properties in the assessment district. Appellants cite no authority for this proposition, nor are we aware of any.[2] There is nothing in the statutory scheme governing validation actions providing that interested persons may avoid the requirements of the validation statutes by limiting the requested relief to their own properties.

As a practical matter, the rule advocated by appellants would undermine the purpose of the validation statutes and impair the ability of public agencies to implement projects financed through special assessment districts. The special assessment on appellants properties was not levied in isolation and without regard to other properties in the District. Rather, it was part of an overall determination of the costs and benefits of placing utilities in the District underground. A court could not invalidate one property owners special assessment without necessarily affecting the total cost of the project, the distribution of that cost among all affected property owners, and the ability of the public agency to secure financing for the project. Bonds secured by assessment liens would have uncertain value if property owners were allowed to individually challenge the liens on their properties without complying with the validation statutes. (Cf. Friedland v. City of Long Beach, supra, 62 Cal.App.4th at p. 851 [if challenges other than validation actions allowed, lawsuits would cast legal cloud reducing marketability of financial instruments and impairing ability of public agency to act].) In short, appellants may not avoid the strictures of the validation statutes by claiming they sought relief only with respect to their individual properties.

Appellants contend the trial court erred by relying on Not About Water, supra, 95 Cal.App.4th 982, in order to reach the conclusion that their complaint was governed by the validation statutes. In light of our conclusion based on section 10601 that an action to determine the validity of an assessment under the 1913 Act is a validation action, it is irrelevant that the trial court relied on other authority to reach the same conclusion. (See Florio v. Lau (1998) 68 Cal.App.4th 637, 653 [appellate court reviews result, not reasoning, of trial court decision].) Nevertheless, to the extent Not About Water is relevant, the case supports our conclusion.

In Not About Water, property owners brought a mandate proceeding challenging the formation of an assessment district and the subsequent levy of an assessment. (Not About Water, supra, 95 Cal.App.4th at p. 986.) The assessment district was formed under the provisions of the 1913 Act. (Id. at p. 992.) The property owners claimed, among other things, that county officials had gerrymandered the district in order to exclude property owners who might vote against the district. (Id. at p. 990.) Although the appellate court in Not About Water did not address whether the property owners were required to comply with the validation statutes, it began its discussion with the statement that the proceeding was a special statutory action known as a validation proceeding. (Id. at p. 986.) This determination was not mere dicta but was necessary to establish the standard of review applicable to the action. (Ibid.) The court noted that judicial review of challenges to public improvement determinations made by a local governmental agency is circumscribed both by the legislative character of such municipal proceedings and the exclusivity of a special statutory proceedingcodified as Code of Civil Procedure sections 860 et seq.as the sole procedure available to determine [its] validity.  [Citation.] (Id. at pp. 992-993.) The court did not explain how it arrived at the conclusion the proceeding was a validation action, nor did it cite or rely on section 10601. Nevertheless, the courts characterization of the action supports the proposition that interested persons may file a reverse validation action to challenge an assessment levied under the 1913 Act.

Appellants also argue that, other than Not About Water, most of the cases cited by the parties to this litigation concern either redevelopment projects or taxpayer lawsuits. The implication, apparently, is that while it is well settled that challenges to redevelopment projects are governed by the validation statutes, there is sparse case authority addressing whether an individual property owners challenge to a special assessment lien is considered a validation action. The argument is unpersuasive for several reasons. First, validation actions commonly involve challenges to assessments. As our Supreme Court stated more than 30 years ago, The typical validating action seeks a declaratory judgment that the bonds, assessments, etc., of the agency are or are not valid . . . . (City of Ontario, supra, 2 Cal.3d at p. 344.) Second, and more importantly, it is immaterial that there may be scant case law addressing validation actions under the 1913 Act. The authority for treating such a proceeding as a validation action is statutory. ( 10601; Code Civ. Proc.,  860, 863.)

C. Invoking Proposition 218 in an Action Challenging a Special Assessment under the 1913 Act does not Render the Validation Statutes Inapplicable.

Appellants contend that the validation statutes are inapplicable to a challenge to a special assessment premised on Proposition 218. More specifically, appellants argue that subdivision (f) of section 4 of article XIII D of the California Constitution affords property owners an individual right to contest the legality of a special assessment. They claim it is not necessary to serve notice by publication and to acquire in rem jurisdiction in order for a court to have jurisdiction to grant the purported individual remedy provided by Proposition 218.

Proposition 218 is perhaps best understood as a supplement to the assessment district formation process provided by various statutes, including the 1913 Act. It establishes the procedures that must be followed leading up to the levy of a special assessment or benefit assessment. (Cal. Const., art. XIII D,  4.) Proposition 218 renders unconstitutional any contradictory procedure leading to the adoption or levy of an assessment falling within its ambit. (Barratt American, Inc. v. City of San Diego(2004) 117 Cal.App.4th 809, 818.)

Although appellants argument suggests there is something new about a challenge to an assessment on the ground a property receives no special benefits over and above that conferred generally, the principle allowing a special benefits challenge pre-dates the 1996 enactment of Proposition 218. (See, e.g., Knox v. City of Orland, supra, 4 Cal.4th at p. 146 [special assessment may not be set aside unless assessment not proportional to benefits bestowed on property]; Dawson v. Town of Los Altos Hills, supra, 16 Cal.3d at p. 685 [same].) The sole reference in Proposition 218 to legal actions contesting the validity of assessments is in article XIII D, section 4, subdivision (f), which provides: In any legal action contesting the validity of any assessment, the burden shall be on the agency to demonstrate that the property or properties in question receive a special benefit over and above the benefits conferred on the public at large and that the amount of any contested assessment is proportional to, and no greater than, the benefits conferred on the property or properties in question. This provision addresses who bears the burden in a legal action contesting the validity of an assessment, but it does not create a separate or distinct right of action to challenge an assessment.[3] Moreover, nothing in Proposition 218 suggests that a property owner has the right to pursue an in personam cause of action against a public agency to invalidate a special assessment.

Appellants contend the procedural requirements of the validation statutes are directly inconsistent with the intent of Proposition 218. We disagree. The validation statutes and Proposition 218 address different concerns. Whereas Proposition 218 mandates compliance with certain procedures before a special assessment may be levied, the validation statutes provide rules of procedure for legal actions challenging an assessment after its adoption. To the extent Proposition 218 refers to a challenge to the validity of an assessment, it merely addresses the public agencys burden in a legal action. Nothing in the validation statutes is inconsistent with this imposition of the burden on the public agency. It is also not inconsistent with Proposition 218s intent to require the type of expedited, conclusive, and binding determination provided for in the validation statutes.

We do not suggest that property owners lack the ability to challenge violations of Proposition 218. A property owner may seek to invalidate a special assessment on the ground the procedures leading to the assessments adoption violated Proposition 218. The nature of the action is dictated by the statutory scheme, such as the 1913 Act, under which the assessment was levied. In the case of the 1913 Act, such a proceeding must be filed as a reverse validation action. This is so regardless of whether the challenge is premised on asserted violations of Proposition 218 or any other constitutional provision. (See Friedland v. City of Long Beach, supra, 62 Cal.App.4th at pp. 846-847 [validation statutes apply to constitutional challenges].)

D. Revenue and Taxation Code Provisions Relating to Property Tax Assessments Are Inapplicable.

Appellants contend that provisions of the Revenue and Taxation Code allow property owners individually to challenge real property tax liens imposed on their properties. Specifically, they cite and purport to rely on sections 1603 et seq., 1615, and 5140 et seq. of the Revenue and Taxation Code. In the cursory, three-sentence argument addressed to this issue in their opening brief, appellants utterly fail to explain why these provisions of the Revenue and Taxation Code apply.

Revenue and Taxation Code sections 1601 through 1721 authorize property owners to apply for a reduction in a real property tax assessment. Revenue and Taxation Code section 5140 et seq. relates to tax refunds. These statutes concern property taxes, which are not at issue here. As noted above, special assessments differ in important respects from taxes. Whereas individual property owners may challenge the assessed value of their properties without impairing the functioning of a public agency, the same cannot be said for a challenge to the validity of a special assessment, which forms part of an overall financing scheme for a public improvement. The public agencys ability to finance and carry out the project is necessarily affected by such an individual challenge, thus explaining why it must be pursued as a validation action. In short, the provisions of the Revenue and Taxation Code cited by appellants have no bearing on this dispute.

2. The Trial Court Acted Within Its Discretion In Finding No Good Cause for Appellants Noncompliance with the Validation Statutes.

Section 863 of the Code of Civil Procedure provides a good cause exception for an interested partys failure to comply with the summons publication requirement of the validation statutes. Appellants contend the trial court abused its discretion by failing to find good cause excusing their noncompliance. Among other things, they claim to have made a good faith effort to comply with the validation statutes, the Town suffered no prejudice by their delay, and the issue of whether the validation statutes apply is complex and debatable. We conclude the trial court acted within it discretion.

A. Appellants Failure to Comply with the Summons Publication Requirements Did Not Result from a Reasonable But Mistaken Appraisal of a Complex and Debatable Issue.

Appellants argue there is good cause for their noncompliance with the summons publication requirement of section 863 of the Code of Civil Procedure because the issue of whether the validation statutes apply is complex and debatable. We agree with the trial courts conclusion that appellants have pointed to no complex and debatable issue justifying their failure to comply with the validation statutes.

[A] mistaken but reasonable decision by plaintiffs counsel that [the validation statutes] did not apply constitutes good cause for the trial court to permit belated compliance with [their] terms. Counsel are not expected to be omniscient, as the Legislature plainly recognized by writing the good cause exception into [Code of Civil Procedure] section 863. (City of Ontario, supra, 2 Cal.3d at p. 346.)   The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.] Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.  [Citation.]  [Citation.] (Ibid.)

In City of Ontario, our Supreme Court found good cause under section 863 of the Code of Civil Procedure because the applicability of the validation statutes was unclear. In that case, the plaintiffs challenged an agreement between a city and a private contractor to finance the construction of a motor speedway with tax-exempt bonds. (City of Ontario, supra, 2 Cal.3d at p. 338.) In addition to seeking a declaratory judgment that the entire scheme was invalid, plaintiffs also sought restitution and injunctive relief. (Id. at p. 339.) The court determined the validation statutes were arguably applicable to the extent the plaintiffs sought to invalidate the bonds and accompanying agreements relating to the motor speedway. (Id. at p. 344.) However, the court also concluded that the injunctive and restitutionary relief sought by the plaintiffs went beyond the terms of the agreements and that injunctive relief was available to prevent illegal expenditures under a contract entered into by a public agency regardless of the validity of the bonds, assessments, or other financial matters. (Ibid.) Because the injunction and restitution causes of action went beyond matters subject to validation, the issue of whether the validation statutes applied presented a complex and debatable issue justifying relief under section 863 of the Code of Civil Procedure. (Id. at pp. 345-348.)

Another published case in which an appellate court found a complex and debatable issue justifying relief from the summons publication requirement is Millbrae School Dist. v. Superior Court (1989) 209 Cal.App.3d 1494 (Millbrae). The issue in Millbrae was whether the validation statutes applied when the interested person challenging the public agencys action was another public agency. Section 869 of the Code of Civil Procedure provides that the validation statutes do not preclude any public agency from pursuing other remedies to validate their actions, suggesting that a third party public agency is not limited to filing a validation action in order to challenge another public agencys action. The court found that [o]nly by digging several layers beneath the perplexing and ambiguous wording of [Code of Civil Procedure] section 869 could one discover that [it] does not excuse third party agencies from using the validating proceedings when challenging the actions of another agency. (Millbrae, supra, 209 Cal.App.3d at p. 1500.)

Appellants here have failed to identify any complex and debatable issues akin to those discussed in City of Ontarioor Millbrae. In their brief opposing the Towns motion to dismiss, appellants identified two issues that purportedly render the applicability of the validation statutes a complex and debatable question. First, they claimed the Town had cited no authority establishing that the validation statutes applied to a special benefits determination governed by Proposition 218 (Cal. Const., art. XIII D,  4) and related to a utility assessment district and a specific parcel of property. Second, they contended the validation statutes were inapplicable to their requests for injunctive and declaratory relief.[4] On appeal, appellants appear to have abandoned the second argument, choosing to focus instead on whether the validation statutes apply to a special benefits challenge to an assessment premised on section 4, subdivision (f) of article XIII D of the California Constitution.

The issue is neither complex nor debatable. A property owners right to challenge a special assessment on the ground there is no proportional special benefit conferred on the affected property existed long before the passage of Proposition 218. (See Harrison v. Board of Supervisors, supra, 44 Cal.App.3d at pp. 856-857 [citing Supreme Court precedent dating back to 1915 concerning principle that special assessment must be justified by special benefits].) The fact an interested person may choose to invoke the constitutional provisions added by Proposition 218 in a challenge to an assessment levied under the 1913 Act does not render the validation statutes inapplicable. Nothing in Proposition 218 can be fairly read to suggest such a result, and the constitutional nature of the challenge does not change the analysis. It is well settled that constitutional challenges to a matter otherwise subject to the validation statutes must be raised in a validation action. (Friedland v. City of Long Beach, supra, 62 Cal.App.4th at pp. 846-847.) Furthermore, in Not About Water, the court stated that an action by property owners to invalidate an assessment under the 1913 Act was a validation action. (Not About Water, supra, 95 Cal.App.4th at p. 986.) Notably, the court made this determination notwithstanding its consideration of Proposition 218 elsewhere in its opinion. (Id. at pp. 1000-1001.)

Even if there were a complex and debatable issue with respect to the application of the validation statutes, appellants have not shown any causal connection between that fact and their failure to comply with the validation statutes. As the court in City of Ontarioexplained, the trial court must not only determine whether there is a complex and debatable question of law, but it must also determine whether counsel for plaintiffs acted in reasonable but mistaken reliance on their appraisal of that question.[5] (City of Ontario, supra, 2 Cal.3d at p. 347.) A declaration filed by appellants counsel in the trial court makes clear that counsel was not even aware of the existence, much less the possible application, of the validation statutes until the fifty-ninth day after the complaint was filed. There is nothing in the record to indicate that appellants made a timely and reasoned determination that the validation statutes did not apply as a result of appellants invocation of Proposition 218.

One might argue the applicability of the validation statutes is debatable because of language contained in section 10601 suggesting that no one other than a legislative body or a contractor may file a validation action. As we concluded earlier in this opinion, that statute does not preclude a reverse validation action under section 863 of the Code of Civil Procedure. Nevertheless, we would agree the proper interpretation of section 10601 is hardly straightforward. Unfortunately for appellants, however, they may not rely on any complexity arising from the interpretation of section 10601 in order to justify relief under the good cause exception of Code of Civil Procedure section 863. The reason is simple. They did not raise the issue or even cite the statute in this litigation until we requested that counsel be prepared to discuss at oral argument the applicability of section 10601. Thus, there is no indication they chose not to comply with the validation statutes as a result of a reasonable but mistaken interpretation of section 10601. Appellants obviously may not justify their noncompliance with the validation statutes based on a complexity they never identified or brought to the trial courts attention.

Our task is not to determine whether, in the abstract, one could argue the applicability of the validation statutes is a complex and debatable question. Rather, we assess the trial courts good cause determination to ascertain whether, on the facts before it, the trial court abused its discretion. Here, there was no abuse of discretion. Appellants had the burden of proof to establish good cause, yet their efforts to identify a complex and debatable issue justifying relief plainly fell short. It is much too late for appellants to rely on section 10601 as the basis for an argument that the applicability of the validation statutes is complex and debatable.

B. The Trial Court Was Not Compelled to Find Good Cause as a Result of Appellants Good Faith Efforts and any Lack of Prejudice.

Appellants contend the trial court should have taken into account their good faith efforts to comply with the statute and the lack of prejudice suffered by the Town as a result of any delay. However, there is nothing in the record to indicate the trial court ignored these factors or refused to consider them.

The fact that appellants served all affected property owners by mail does not compel the conclusion they should be excused from timely compliance with section 863 of the Code of Civil Procedure. When jurisdiction is obtained by constructive notice, such as in a validation action, the statutory conditions of service must be strictly observed or else the court lacks power to render a judgment. (Community Redevelopment, supra, 248 Cal.App.2d at p. 178.) Appellants service of notice by mail on all property owners did not comply with the statute or confer in rem jurisdiction on the trial court. Further, a belated attempt to notify interested persons and a purported lack of prejudice do not, by themselves, constitute good cause for failure to comply with the summons publication requirement of the validation statutes. Such considerations may be relevant in assessing whether it is equitable to permit an action to proceed despite noncompliance with the statutory requirements, but they do not establish a reason for the failure to comply. (See Katz, supra, 144 Cal.App.4th at p. 1036 [alleged absence of prejudice does not supply reason for failure to comply].)

Appellants rely on Arnold v. Newhall County Water Dist. (1970) 11 Cal.App.3d 794 (Arnold), but that case does not aid them. In Arnold, the proof of publication was filed more than 60 days after the filing of the complaint, and the published summons did not set forth the correct period of time within which an answer could be filed by interested persons. (Id. at p. 799.) Nearly two years after the complaint was filed, the defendant filed a motion to dismiss, claiming the summons was defective and the proof of publication had not been timely filed. (Id. at p. 802.) In a declaration opposing the motion, the plaintiffs attorney explained that he had instructed his secretary to timely file the proof of publication when it was received from the newspaper, but that he could not recall why she failed to carry out his instructions. (Id. at pp. 802-803.) The trial court denied the motion to dismiss. (Id. at p. 803.) On appeal from a judgment favoring the plaintiff, the appellate court concluded that the trial court never acquired in rem jurisdiction to hear the case because of deficiencies in the procedure relating to the summons. (Id. at p. 801.) The question presented was whether the judgment should be reversed with directions to dismiss, or whether the plaintiff should be given an opportunity to show good cause for his noncompliance with statutory requirements under Code of Civil Procedure section 863. (Id. at pp. 801-802.) The court chose the latter option, stating: [I]n view of the fact that two years elapsed between the filing of the action and the determination of the districts motion to dismiss pursuant to the provisions of section 863 of the Code of Civil Procedure, the interests of justice dictate that the plaintiff be afforded the opportunity to seek an order for the publication of proper summons in accordance with the governing statutory law on the ground that plaintiff had proceeded in good faith but the publication of the summons had been delayed without his fault. (Id. at p. 803.)

The facts here bear little relation to those in Arnold. We agree with the trial court, which distinguished Arnold by noting that [i]n our case, there has been no similar lapse of two years and there has been no showing that counsel took immediate steps to accomplish the necessary service by publication. Indeed, appellants took no steps to effect service by publication until after the 60-day statutory period had run. Unlike the plaintiff in Arnold, who understood the validation statutes applied but could at least argue any delays were beyond his control or not his fault, appellants can make no such claims. Furthermore, the appellate court in Arnolddid not find good cause under Code of Civil Procedure section 863 but rather remanded the matter to the trial court to afford the plaintiff an opportunity to make a showing of good cause. Here, appellants were afforded an opportunity to make such a showing, which the trial court found lacking.

C. The Town did not Waive Its Right to Challenge Appellants Noncompliance with the Validation Statutes.

Appellants claim the Town waived its right to challenge their noncompliance with the validation statutes. First, appellants contend that by filing an answer and an opposition brief addressing the merits, the Town waived its right to dismiss the action under Code of Civil Procedure section 863. Second, appellants argue that by failing to oppose their ex parte motion to amend the summons to include all interested persons, the Town also waived its right to seek dismissal.

Appellants offer no legal authority to support their assertions. The issue is therefore deemed waived. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) In any event, the answer was due before the 60-day period to file proof of publication had expired, so the Town could not have been expected to seek dismissal of the action before the answer was due. Although the Town filed a brief on the merits along with its motion to dismiss, we are aware of no rule of law precluding consideration of a motion to dismiss under such circumstances. Furthermore, the Town filed its brief on the merits because it was compelled to do so by the briefing schedule established by the court. With regard to the notion the Town waived its right to dismiss by failing to oppose appellants ex parte motion, the claim is meritless. The courts order on appellants ex parte motion simply permitted them to amend the summons. The order did not grant additional time to comply with the requirements of Code of Civil Procedure section 863. The Town thus did not waive its right to dismiss by offering no opposition to appellants ex parte request to amend the summons.

We are mindful that dismissal of appellants complaint on the facts presented here may seem harsh. Indeed, we are not the first court to make such an observation about the consequences of noncompliance with the summons publication requirements of the validation statutes. (See County of Riverside, supra, 54 Cal.App.4th at p. 451.) We do not doubt that appellants acted in good faith, but the fact remains that proof of publication was not timely filed, compelling dismissal under Code of Civil Procedure section 863 unless appellants demonstrated good cause for their noncompliance. The record reveals that appellants counsel failed to timely comply with the summons publication requirements because he was unaware of the existence of the validation statutes, not because he mistakenly but reasonably concluded at the outset they were inapplicable. Unquestionably, dismissal is a severe sanction for a mistake of law, but not every mistake of law supports a finding of good cause. (See Katz, supra, 144 Cal.App.4th at p. 1036.) On this record, we cannot say the trial court abused its discretion in finding no good cause for appellants failure to timely file proof of publication.

Disposition

The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal.

_________________________

McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

CERTIFIED FOR PUBLICATION

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

BY THE COURT:

The written opinion filed on January 31, 2007, has now been certified for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered published in the official reports.

McGuiness, P.J.

Trial Court: Marin County Superior Court.

Trial Judge: James R. Ritchie.

Frank I. Mulberg and Brett D. Mulberg for Plaintiffs and Appellants.

McDonough Holland & Allen PC, Thomas R. Curry, Kevin D. Siegel; Ann R. Danforth, Town Attorney for Defendants and Respondents.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] The statutory language specifying that a validation action under the 1913 Act could be filed by the legislative body or a contractor pre-dates the 1961 enactment of the validation statutes. In 1940, the Legislature amended the 1913 Act to provide that the city council or any contractor, at any time after the award of contract to him, may bring an action . . . to determine the validity of said proceedings, assessment, bonds, contract, improvement or acquisition, or any thereof. (Stats. 1941, 1st Ex. Sess. 1940, ch. 35,  7, p. 93.) Thus, the provision identifying the legislative body and any contractor as parties who could bring a validation action was plainly not adopted to limit the application of the validation statutes (Code Civ. Proc.,  860 et seq.), which were enacted more than 20 years after the 1940 amendment that first added this language.

[2] During oral argument, appellants counsel cited Harrison v. Board of Supervisors (1975) 44 Cal.App.3d 852, apparently for the proposition there is no need to comply with the validation statutes when interested persons file individual challenges to an assessment district created pursuant to the 1913 Act. In Harrison, the issue was whether a judgment enjoining the collection of a special assessment should extend to all affected property owners or instead be limited to those who complained about the assessment. (Id. at pp. 855, 859.) The court concluded the judgment voided the entire assessment district and therefore extended to property owners who were not parties to the action. (Id. at pp. 863-864.) Contrary to appellants assertion, the opinion contains no indication that interested persons challenging an assessment levied under the 1913 Act may disregard the requirements of the validation statutes. A decision is not authority for a point not raised or considered. (Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 539.)

[3] The issue of what standard of review a court should apply in reviewing a public agencys special benefits determination is presently before our Supreme Court. (See Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority (2005) 130 Cal.App.4th 1295, review granted Oct. 12, 2005, S136468.)

[4] As discussed earlier in this opinion, it is irrelevant that appellants pleaded causes of action seeking injunctive and declaratory relief because the matters addressed in those causes of action are within the scope of what could be adjudicated in a validation action challenging the Towns resolution adopting the special assessment. (See Katz, supra, 144 Cal.App.4th at pp. 1033-1034.)

[5] In City of Ontario, the court rejected an argument by the public agency that there was no causal connection between the plaintiffs noncompliance with the validation statutes and the existence of a complex and debatable issue as to their application. (City of Ontario, supra, 2 Cal.3d at p. 347.) The court held the plaintiffs were not required to introduce evidence that they relied on a mistaken but reasonable interpretation of the issue. Instead, the ruling could be based on counsels representations to the court about their understanding and intent. (Ibid.) Because the public agency was the moving party and had failed to supply the reviewing court with an adequate record showing what representations were made by plaintiffs, the agencys argument failed. (Ibid.) Here, by contrast, we have an adequate record disclosing that appellants counsel stated he discovered the existence of the validation statutes only after receiving the Towns answer and while he was preparing appellants opening brief, when it was already too late to comply.