Supreme Court of California Justia
Citation 46 Cal. 4th 646, 208 P.3d 146, 94 Cal. Rptr. 3d 403

Bonander v. Town of Tiburon

Filed 6/8/09

IN THE SUPREME COURT OF CALIFORNIA

JIMMIE D. BONANDER et al.,
Plaintiffs and Appellants,
S151370
v.
Ct. App. 1/3 A112539
TOWN OF TIBURON et al.,
Marin County
Defendants and Respondents. )
Super. Ct. No. CV052703
____________________________________)

Under the Municipal Improvement Act of 1913 (Sts. & Hy. Code, § 10000
et seq.), an assessment district may be formed and assessments may be levied on
real property for various purposes, including moving overhead utility wires
underground, as occurred here. Under article XIII D of the state Constitution,
however, any assessment on real property must be in proportion to the special
benefit conferred on that property. (See Silicon Valley Taxpayers’ Assn., Inc. v.
Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 443.) When a
lawsuit challenges the assessments imposed on specific parcels of real property for
(among other things) noncompliance with article XIII D, must the plaintiff comply
with the requirements governing validation proceedings brought under Code of
Civil Procedure sections 860 through 870.5? We conclude that the answer is “no.”
Because the Court of Appeal reached the opposite conclusion, we reverse its
judgment.
1


I
In May 2003, owners of 116 parcels in the Town of Tiburon (hereafter the
Town) in Marin County petitioned the Town to create an assessment district in Del
Mar Valley to install underground utility wires carrying electricity, telephone
signals, and other cable services, replacing overhead wires strung from poles.
On June 4, 2003, the Town‟s council adopted a resolution of intention to
form the proposed assessment district under the Municipal Improvement Act of
1913. The Town then engaged a civil engineer to prepare a report analyzing the
proposed project. On March 10, 2005, the civil engineer submitted a preliminary
engineer‟s report, which the Town‟s council approved on March 16, 2005. As the
special benefit that would be conferred on the 221 parcels located in the proposed
district, the report identified the new underground electrical, telephone, and cable
facilities that would be “the direct source of service to the properties.” In
determining the special benefit conferred on each individual parcel, the report
assigned points based on three benefit categories: (1) aesthetic benefit from
removal of unsightly poles and overhead wires, (2) improved safety because of the
reduced risk of downed poles and wires, and (3) greater service reliability because
of new wiring and equipment. The estimated cost of the project was $4,720,000,
of which construction costs represented $3,900,611. The proposed individual
assessments ranged from about $7,200 to about $31,200 per parcel, with
$21,717.04 being the most frequent assessment.
On March 30, 2005, notices of a public hearing and ballots were sent to the
owners of parcels within the proposed assessment district. Each ballot was
weighted to reflect the amount of the proposed assessment for the parcel in
question. Owners of parcels representing 71 percent of the total proposed
assessment voted in favor of the project.
2
On May 12, 2005, the Town received a final engineer‟s report, and on May
18, 2005, the Town‟s council voted unanimously to approve that report, to order
the improvements, to establish the Del Mar Valley Utility Undergrounding
Assessment District, and to confirm the proposed individual assessments. On May
27, 2005, assessment notices were sent to property owners within the new
assessment district.
Two couples, Jimmie and Jean Bonander and Frank and Shelley Mulberg,
had previously objected to inclusion of their parcels in the district. The
assessment levied against each of their parcels was $31,146.62. On June 16, 2005,
the Bonanders and the Mulbergs filed a “Petition for Writ of Administrative
Mandamus or Mandate and Complaint for Declaratory and Injunctive Relief”
(hereafter complaint) in the superior court, alleging four causes of action — three
of them for administrative mandate and the fourth seeking declaratory relief. The
complaint named as defendants the Town, its council, and 20 unnamed Does.
The complaint alleged that the assessment district, as formed, violated
article XIII D of the state Constitution because the apportionment method used by
the district resulted in assessments against plaintiffs‟ parcels that exceeded the
special benefit to be conferred on those parcels. According to plaintiffs, their lots
would receive no aesthetic benefit at all and little, if any, safety or reliability
benefit, because after the project‟s completion utility poles and overhead wires
would remain nearby. The complaint further alleged that the assessment district
was infirm because (1) the petition initiating the creation of the district was
inadequate, (2) the Town‟s resolution of intention to form the district was also
inadequate, (3) the Town‟s engineers had drawn the district‟s boundaries by
“cherry picking and gerrymandering,” (4) the boundaries adopted were the product
of “tainted voting,” and (5) the zones created within the district prevented a fair
allocation of construction costs. The complaint sought not only to set aside the
3
assessments on plaintiffs‟ parcels but also to invalidate the Town‟s May 18, 2005,
resolution, which established the assessment district and confirmed the individual
assessments.
On June 17, 2005, plaintiffs served the summons and complaint on the
Town, but they did not serve the owners of the other 219 parcels within the
district.
On August 2, 2005, the Town answered the complaint, alleging several
affirmative defenses, including that plaintiffs‟ claims were barred as untimely
under Streets and Highways Code section 10400 and that plaintiffs had failed to
file, within 60 days of the complaint‟s filing date, proof of service by newspaper
publication, as required under Code of Civil Procedure sections 861 and 863.
On August 15, 2005, the 60th day after the filing of the complaint, plaintiffs
mailed a modified copy of the summons and complaint to the record owners of the
parcels in the assessment district. To a copy of the summons (which was directed
only to the Town, the Town‟s council, and 20 unnamed Does) plaintiffs added this
handwritten notation: “8/15/05 — To All Interested Parties [¶] SEE NOTICE
ATTACHED TO SUMMONS.” The attached sheet, addressed to “ALL
PERSONS INTERESTED IN THE MATTER OF THE DEL MAR UTILITY
UNDERGROUNDING ASSESSMENT DISTRICT,” advised: “You may contest
the legality or validity of the matter by appearing and filing a written answer to the
complaint not later than SEPTEMBER 20, 2005.” That same day, plaintiffs filed
proof of service by mail of the modified summons on the other property owners.
On August 17, 2005, plaintiffs applied ex parte for an order amending the
caption on their summons to include “all interested persons,” thereby attempting to
bring the summons into compliance with Code of Civil Procedure section 863.
Plaintiffs, however, did not concede that this statute applied.
4
The trial court granted plaintiffs‟ application and authorized issuance of the
amended summons. Plaintiffs then published the amended summons and its
attached notice in a local newspaper, once per week, for four successive weeks,
from August 19 through September 9, 2005, thereby attempting to come into
compliance with Code of Civil Procedure section 861. On September 9 — 85
days after the complaint was filed — plaintiffs filed proof of publication of the
amended summons.
On September 23, 2005, the Town filed a motion to dismiss based on
plaintiffs‟ failure to timely comply with Code of Civil Procedure sections 861,
861.1, and 863, which require — in actions to which they apply — that the
summons be directed to “ „all persons interested‟ ” (id., § 861) and that proof of
publication be filed within “60 days from the filing of [the] complaint” (id.,
§ 863). Plaintiffs had missed that deadline by 25 days.
On November 3, 2005, the trial court ordered dismissal of the complaint.
Based on the complaint‟s allegations and requests for relief, the court ruled that
plaintiffs‟ action was a “special statutory action challenging the formation of a
local public improvement district or assessment district and the subsequent levy of
an assessment,” making the action a validation proceeding “subject to special
statutory [procedures] codified in . . . Code of Civil Procedure [section 860 et
seq.]” Because plaintiffs had failed to file proof of service by publication within
the requisite 60 days from the filing of the complaint (Code Civ. Proc., § 863), and
because they had failed to show good cause for their delay (ibid.), the trial court
dismissed the complaint. The Court of Appeal affirmed.
II
The issue before us is whether the general validation procedure set forth in
Code of Civil Procedure sections 860 through 870.5 applies when a property
owner contests an individual assessment levied under the Municipal Improvement
5
Act of 1913 (Sts. & Hy. Code, § 10000 et seq.). To shed light on what the
Legislature intended by provisions that it enacted in the early part of the last
century, we must examine the history of special assessment districts in California
and, in particular, the ways in which property owners have contested the validity
of those districts.
A. Early Cases in Which Property Owners Contested the Validity of
Special Assessments
For well over a century, California law has allowed public agencies to use
special assessment districts to finance specific types of improvements that benefit
the real property located within the district. Many of the early assessment districts
were created for the purpose of reclaiming swampland, although assessment
districts were also frequently used to finance street improvements.
An interested property owner could participate in the proceedings that led
to the creation of the assessment district, and after the district was formed and the
assessments levied, property owners frequently brought actions contesting the
validity of their individual assessments. When the boundaries of the district and
the amount of the individual assessments were determined by a local board
exercising discretionary authority, property owners could petition the superior
court for a writ of review, and in that way contest the validity of the proceedings
that led to the assessment. (See, e.g., Miller & Lux v. Board of Supervisors (1920)
189 Cal. 254; Imperial Water Co. v. Supervisors (1912) 162 Cal. 14; Peterson v.
Board of Supervisors (1924) 65 Cal.App. 670.) In other cases, property owners
brought actions for declaratory or injunctive relief (see, e.g., Imperial Land Co. v.
Imperial Irr. Dist. (1916) 173 Cal. 668; Imperial Land Co. v. Imperial Irr. Dist.
(1916) 173 Cal. 660; Southwick v. Santa Barbara (1910) 158 Cal. 14), or, because
the assessment was a lien against the property, they brought actions to quiet title
(see, e.g., Larsen v. San Francisco (1920) 182 Cal. 1; Ahlman v. Barber Asphalt
6
Pav. Co. (1919) 40 Cal.App. 395). In addition, property owners could challenge
the validity of an assessment as a defense in an action brought to enforce the
assessment. (See, e.g., Swamp Land etc. Dist. 341 v. Blumenberg (1909) 156 Cal.
539, 541; Reclamation Dist. 531 v. Phillips (1895) 108 Cal. 306, 311; Reclamation
Dist. No. 108 v. Evans (1882) 61 Cal. 104, 107.) In some cases, the legislative act
authorizing formation of the assessment district expressly conferred on property
owners the right to bring actions challenging their individual assessments. (See,
e.g., Stats. 1897, ch. 189, § 69, p. 276.)
These were private law actions between the property owner and the public
agency levying the assessment, or sometimes between the property owner and the
contractor, and no special rules of procedure governed these actions. If a property
owner successfully contested the assessment against his or her property, that
owner was relieved of the obligation to pay the assessment, but other property
owners who had not challenged their assessments remained obligated. (See
Reclamation Dist. No. 108 v. Evans, supra, 61 Cal. at p. 107.) Thus, in some
cases the revenue of the assessment district might fall short of what was originally
contemplated. This shortfall might result in scaling down the planned
improvements, adding or increasing financial contributions by the local
government, or levying a new assessment to raise additional funds.
To address the uncertainties associated with property owners bringing
actions to contest their assessments, the Legislature enacted former Political Code
section 3493 1/2 (Stats. 1893, ch. 176, § 1, pp. 208-210), relating specifically to
assessment districts created to reclaim swampland. (See Swamp Land etc. Dist.
341 v. Blumenberg, supra, 156 Cal. at pp. 541-542; Reclamation Dist. No. 551 v.
Runyon (1897) 117 Cal. 164, 166.) Former Political Code section 3493 1/2
permitted public agencies to bring validation actions against the owners of
properties within an assessment district to have the district (and the individual
7
assessments) judicially approved. If the public agency prevailed, the validity of
the individual assessments could not be contested in any later action.1 This was
the first validation provision applicable to assessment districts in California.
B. Improvement Acts of 1911 and 1913
Over the next several decades, new acts of the Legislature authorized public
agencies to form assessment districts for a variety of specified purposes, in some
cases replacing previous legislative enactments. One such act was the
Improvement Act of 1911 (Stats. 1911, ch. 397, §§ 1-83, pp. 730-769), which
provided for improvement of streets within municipalities and further provided for
the issuance of street improvement bonds to pay for the improvements. Another
such act was the Municipal Improvement Act of 1913 (Stats. 1913, ch. 247, §§ 1-
20, pp. 421-429), which provided for the construction of water works, electric
power works, gas works, lighting works, and other public utilities; for the
assessment of costs upon the benefited properties; and for the issuance of
improvement bonds.
The Municipal Improvement Act of 1913 is the act at issue here. When
first enacted, section 6 provided: “The validity of an assessment levied under this
act shall not be contested in any action or proceeding unless the same is

1
Specifically, former Political Code section 3493 1/2 provided: “At any time
within one year after the filing of the list [of the charges assessed against each tract
of land], the Board of Trustees of the [reclamation] district may, in the name of the
district, commence and prosecute an action in the Superior Court of the county in
which the district is situated . . . to determine the validity of the assessment; and in
said action, any one or more of the owners of land embraced within the district
may . . . be made defendants in said action. [¶] . . . [¶] . . . [T]he judgment given
and made in the action brought under the provisions of this section shall be
conclusive between the parties thereto as to the validity or invalidity of the
assessment . . . .” (Stats. 1893, ch. 176, § 1, pp. 208-210.)
8


commenced within thirty days after the time said assessment is levied . . . .”
(Stats. 1913, ch. 247, § 6, p. 424.) Although this provision reads as a statute of
limitations, it implicitly authorizes property owners to bring actions to contest
assessments. It has not been substantively amended since its original enactment.
(See Sts. & Hy. Code, § 10400.)
In 1937, the Legislature amended the Improvement Act of 1911 to allow the
legislative body conducting the proceedings to bring a validation action.
Specifically, section 16 of the Improvement Act of 1911 was amended to provide,
in part: “At any time after bids have been received [for a street improvement] and
prior to the date fixed for the beginning of work, the legislative body conducting
the proceedings may bring an action in the superior court of the county in which
the city lies to determine the validity of such proceedings and the validity of any
contract entered or to be entered pursuant thereto. Any contractor to whom a
contract has been awarded may . . . bring such an action to determine the validity
of such proceedings and of such contract. Such action shall be in the nature of a
proceeding in rem, and jurisdiction of all parties interested may be had by
publication of summons . . . in some newspaper of general circulation published in
the county where the action is pending . . . . [¶] . . . If the validity of the
proceedings and of the contract or proposed contract is sustained, the validity of
such proceedings or contract shall not thereafter be contested in any action . . . .”
(Stats. 1937, ch. 602, § 1, pp. 1673-1674.)
In 1941, the Legislature incorporated this validation scheme from the
Improvement Act of 1911 into the Municipal Improvement Act of 1913. At that
time, section 18 of the Municipal Improvement Act of 1913 (later codified, in
relevant part, as Sts. & Hy. Code, § 10601 (Stats. 1953, ch. 192, § 4, p. 1192)) was
amended to provide, in part: “The city council, at any time after the publication of
any resolution of intention adopted hereunder, or the ordering of the improvement
9
or acquisition, or the confirmation of the assessment, or ordering the issuance of
bonds, and any contractor, at any time after the award of contract to him, may
bring an action in the superior court of the county in which said city is located, to
determine the validity of said proceedings, assessment, bonds, contract,
improvement or acquisition, or any thereof. Such action shall be brought pursuant
to and be governed by the provisions of, and shall have the effect, as provided in
Section 16 of [the] Improvement Act of 1911, except as herein otherwise
provided.” (Stats. 1941, ch. 35, § 7, p. 93.) As noted, section 16 of the
Improvement Act of 1911 provided for notice by newspaper publication. (Stats.
1937, ch. 602, § 1, p. 1673.)
Significantly, only the “city council” (later broadened to be the “legislative
body” (Stats. 1953, ch. 192, § 4, p. 1192)) and the “contractor” could bring the
validation action contemplated by this 1941 amendment to the Municipal
Improvement Act of 1913. Obviously these parties were interested in confirming
the validity of the assessment, not contesting it: The legislative body had levied
the assessment and generally would have no reason to contest its validity, and the
contractor had an interest in confirming the assessment in order to ensure full
payment. Therefore, actions to contest the validity of the assessment were not
governed by section 18 of the Municipal Improvement Act of 1913, including its
requirement of notice by newspaper publication. Rather, section 6 of that act
(later codified as Sts. & Hy. Code, § 10400 (Stats. 1953, ch. 192, § 4, p. 1186))2
continued to be the only statute governing such actions, and it did not require any
special notice procedures.

2
Unless otherwise indicated, all further statutory references are to the Streets
and Highways Code.
10


C. General Validation Procedure (Code Civ. Proc., §§ 860 through 870)
By 1961, the California codes contained a patchwork of provisions
governing validation proceedings, with each set of provisions dedicated to a
different statutory scheme. In that year, the Legislature sought to replace this
patchwork with a general validation procedure. (Stats. 1961, ch. 1479, §§ 1-3,
pp. 3331-3332.) This procedure, which the Legislature codified as Code of Civil
Procedure sections 860 through 870, does not, in itself, authorize any validation
actions; rather, it establishes a uniform system that other statutory schemes must
activate by reference. At the time the Legislature enacted this general validation
procedure, it revised 80 statutory schemes, deleting existing provisions governing
validation proceedings and referring instead to the new uniform system. (Stats.
1961, chs. 1480-1559, pp. 3333-3381.)
The judgment in a proceeding brought under the general validation
procedure is “binding and conclusive . . . against the agency and against all other
persons . . . .” (Code Civ. Proc., § 870, subd. (a), italics added.) Because the
proceeding is in the nature of an action against the entire world, “[j]urisdiction of
all interested parties may be had by [newspaper] publication of summons” and
such other notice as the court may order. (Id., § 861.) More important, the
general validation procedure is broad enough to include actions to invalidate
public agency matters (sometimes called reverse validation actions). Code of Civil
Procedure section 863 permits “any interested person [to] bring an action . . . to
determine the validity of [the] matter” (italics added), and the phrase “any
interested person” might of course include a party contesting the matter in
question.
III
The Municipal Improvement Act of 1913 was one of the statutory schemes
that the Legislature revised in 1961 to make reference to the new general
11
validation procedure. Section 10601 (which codified the relevant portion of what
had been section 18 of the act) was amended to read: “An action to determine the
validity of the assessment, bonds, contract improvement or acquisition may be
brought by the legislative body or by the contractor pursuant to Chapter 9
(commencing with Section 860) of Title 10 of Part 2 of the Code of Civil
Procedure. . . . Notwithstanding any other provisions of law, the action authorized
by this section shall not be brought by any person other than the legislative body
or the contractor, nor except when permitted by Section 10400 shall the action be
brought after the date fixed for the beginning of work.” (Stats. 1961, ch. 1526,
§ 1, p. 3364.)
The apparent intent of the Legislature in making this 1961 amendment to
section 10601 was to incorporate the general validation procedure into the
Municipal Improvement Act of 1913 but without otherwise substantively changing
the law. Under the previously existing procedure, validation actions under section
10601 had to be brought in accordance with the provisions governing validation
actions brought under the Improvement Act of 1911 (Stats. 1941, ch. 35, § 7,
p. 93), and therefore they had to be brought “prior to the date fixed for the
beginning of work” (Stats. 1937, ch. 602, § 1, pp. 1672-1674). Accordingly, when
the Legislature amended section 10601 to incorporate the general validation
procedure, it expressly provided that the action could not “be brought after the
date fixed for the beginning of work.” (Stats. 1961, ch. 1526, § 1, p. 3364.)
More important, under the previously existing procedure only the
legislative body or the contractor could bring a validation action (see p. 10, ante),
and these actions were, by implication, aimed at confirming the validity of the
assessment proceedings, not at contesting that validity. The general validation
procedure, however, is broad enough to include reverse validation actions aimed at
contesting the validity of public agency matters. (See Code Civ. Proc., § 863.)
12
Therefore, when the Legislature in 1961 amended section 10601 to incorporate the
general validation procedure, it expressly limited which parties might avail
themselves of the new procedure: “Notwithstanding any other provisions of law,
the action authorized by this section shall not be brought by any person other than
the legislative body or the contractor . . . .” (Stats. 1961, ch. 1526, § 1, p. 3364.)
The legislative history of the 1961 amendment to section 10601 supports
this analysis. The amendment was enacted by Assembly Bill No. 1462 (1961 Reg.
Sess.) (Assembly Bill 1462). As originally introduced, Assembly Bill 1462 would
have amended section 10601 to provide in relevant part: “An action to determine
the validity of the assessment, bonds, contract, improvement or acquisition may be
brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2
of the Code of Civil Procedure.” (Assem. Bill 1462, as introduced Feb. 8, 1961.)
Later in the legislative process, this sentence was revised, to insert the words “by
the legislative body or by the contractor.” (Assem. Bill 1462, as amended in Sen.,
May 29, 1961, italics added.) In addition, the sentence was added that reads:
“Notwithstanding any other provisions of law, the action authorized by this section
shall not be brought by any person other than the legislative body or the
contractor, nor except when permitted by Section 10400 shall the action be
brought after the date fixed for the beginning of work.” (Ibid., italics added.)
These changes confirm that the Legislature specifically intended to preserve the
existing limitations in section 10601, and therefore that it did not intend to
incorporate the uniform validation procedure in its entirety into the Municipal
Improvement Act of 1913.
It would seem, therefore, that in amending Streets and Highways Code
section 10601 in 1961, the Legislature intended to activate the general validation
procedure set forth in the Code of Civil Procedure only for actions to validate
assessments, not for actions to contest assessments. Actions to contest
13
assessments continue to be governed solely by section 10400, as they have been
since 1913, and therefore they are not subject to the general validation procedure,
and in particular they are not subject to the requirement of newspaper publication.
This conclusion makes sense because actions to contest individual assessments
have always been private law actions that are binding only on the parties to the
action, and therefore service on and notice to other property owners by newspaper
publication is not necessary. (See Dumas v. City of Sunnyvale (1965) 231
Cal.App.2d 796, 802 [plaintiffs‟ assessments invalidated because they were levied
without regard to the amount of special benefit conferred on the assessed
properties; assessments of property owners who did not bring challenges remained
unaffected]; Reclamation District v. Bonbini (1910) 158 Cal. 197, 205-206
[plaintiff‟s assessment invalidated on individual grounds; assessments of property
owners who did not bring challenges remained unaffected].)3
Although, as we have just said, our statutory construction appears to reflect
the Legislature‟s intent, the problem with this interpretation is the statement in
section 10601 that the validation action authorized by that section shall not,
“except when permitted by Section 10400,” be brought after the date fixed for
beginning work. As noted, section 10400 permits actions to contest an assessment,
which by implication would be an action brought by some party other than the
legislative body that levied the assessment, or the contractor, which wants the

3
An action contesting an individual assessment cannot obligate nonparties,
but it might affect nonparties by removing an obligation. The latter would occur
when the assessment is declared generally invalid as to all assessed properties
within the district. (See Harrison v. Bd. of Supervisors (1975) 44 Cal.App.3d 852,
863-865 [assessment invalidated in its entirety because the improvements
conferred general benefits only and conferred no special benefit on any of the
assessed properties].)
14


assessment validated to ensure payment. Under the express terms of section
10601, however, the legislative body and the contractor are the only parties that
can bring validation actions.
Hence, we are confronted with an internal inconsistency in the statutory
scheme. If we read section 10601 as authorizing a reverse validation action by a
property owner aimed at contesting an assessment, then we give effect to the
cross-reference in that statute to section 10400, but we contradict the express
limitation of that statute to actions brought by the legislative body or the
contractor. Conversely, if we hold that only the legislative body or the contractor
may bring validation actions, then we render the cross-reference to section 10400
essentially meaningless, because it is hard to imagine either of those parties
wanting to prosecute an action to contest the validity of the assessment after it is
levied.
In our view, the better interpretation of section 10601 is to give effect to the
limiting language in that section even at the cost of rendering meaningless the
section‟s cross-reference to section 10400. We conclude that in 1961, when the
Legislature amended section 10601, it intended to incorporate the general
validation procedure into the Municipal Improvement Act of 1913, without
otherwise substantively changing the law, and therefore without changing the
existing rule that validation actions could be brought only by the legislative body
that had approved the assessment or the contractor that would perform the work.
Because these parties would be highly unlikely to contest the assessment, the
cross-reference to section 10400 is confusing, but we can think of at least one
possible explanation for this cross-reference. Perhaps the drafters of the 1961
amendment to section 10601 were concerned that the statement requiring the
validation action to be brought before the start of the work might be read broadly
as applying not only to validation actions but also to actions brought under section
15
10400 to contest assessments. To avoid this broad interpretation, the drafters may
have added the savings clause (“except when permitted by Section 10400”)
without being aware of the internal inconsistency that the clause effected.
In summary, an action under section 10400 to contest an assessment can
merely invalidate that assessment, either generally or as to one or more individual
properties — it cannot impose an obligation on nonparties to pay an assessment —
and therefore service on and notice to other property owners by newspaper
publication is unnecessary. Accordingly, there was no reason for the Legislature
to apply the protections of the general validation procedure to actions under
section 10400. It is true that the success of such an action would reduce (and
might eliminate) the funds available to finance the planned improvements, and
therefore it would indirectly affect other assessed properties (either by reducing
the scope of the project or by necessitating a new assessment or some alternative
source of funding), but there are countless situations in the law in which third
parties will be negatively affected by the success of a pending lawsuit, and the law
does not require formal notice to those third parties. If notice to nonparties is
appropriate in the context of a property owner‟s action contesting an assessment
under the Municipal Improvement Act of 1913, then it is for the Legislature to
require such notice. It has not done so in section 10400, and by its terms, section
10601 does not apply to actions brought by property owners to contest
assessments.
IV
We conclude that the general validation procedure set forth in Code of Civil
Procedure sections 860 through 870.5 does not apply here, where property owners
are contesting individual assessments levied under the Municipal Improvement Act
of 1913. Because the Court of Appeal reached the opposite conclusion, we
reverse
16
its judgment and remand the case to that court with instructions to reverse the
judgment of the trial court.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

17


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Bonander v. Town of Tiburon
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 147 Cal.App.4th 1116
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S151370
Date Filed: June 8, 2009
__________________________________________________________________________________

Court:

Superior
County: Marin
Judge: James R. Ritchie

__________________________________________________________________________________

Attorneys for Appellant:

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

Jack D. Cohen as Amicus Curiae on behalf of Plaintiffs and Appellants.

Trevor A. Grimm, Jonathan M. Coupal and Timothy A. Bittle for Howard Jarvis Taxpayers Association as
Amicus Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

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

Colantuono & Levin, Michael G. Colantuono and Amy C. Sparrow for League of California Cities and
California State Association of Counties as Amici Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Frank I. Mulberg
655 Redwood Highway, Suite 300
Mill Valley, CA 94941
(415) 388-0605

Thomas R Curry
McDonough Holland & Allen
1901 Harrison, 9th Floor
Oakland, CA 94612
(510) 273-8780

Michael G. Colantuono
Colantuono & Levin
11406 Pleasant Valley Road
Penn Valley, CA 95946-9024
(530) 432-7359


Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issue: Are the validation statutes (Code Civ. Proc., section 860 et seq.) the exclusive remedy available for challenging a special assessment levied under Streets and Highways Code section 10601 based on allegations that individual property owners are not receiving a special or proportionate benefit within the meaning of Proposition 218 (Cal. Const., art. XIII D, ? 4, subd. (a))?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 06/08/200946 Cal. 4th 646, 208 P.3d 146, 94 Cal. Rptr. 3d 403S151370Review - Civil Appealclosed; remittitur issued

Parties
1Bonander, Jimmie D. (Plaintiff and Appellant)
Represented by Frank Ira Mulberg
Attorney at Law
655 Redwood Highway, Suite 300
Mill Valley, CA

2Bonander, Jean (Plaintiff and Appellant)
Represented by Frank Ira Mulberg
Attorney at Law
655 Redwood Highway, Suite 300
Mill Valley, CA

3Mulberg, Shelly (Plaintiff and Appellant)
Represented by Frank Ira Mulberg
Attorney at Law
655 Redwood Highway, Suite 300
Mill Valley, CA

4Mulberg, Frank (Plaintiff and Appellant)
Represented by Frank Ira Mulberg
Attorney at Law
655 Redwood Highway, Suite 300
Mill Valley, CA

5Town Of Tiburon (Defendant and Respondent)
Represented by Thomas R. Curry
McDonough Holland & Allen, PC
1901 Harrison Street, 9th Floor
Oakland, CA

6Town Of Tiburon (Defendant and Respondent)
Represented by Ann R Danforth
Office of the Town Attorney
1505 Tiburon Boulevard
Tiburon, CA

7Tiburon Town Council (Defendant and Respondent)
Represented by Thomas R. Curry
McDonough Holland & Allen, PC
1901 Harrison Street, 9th Floor
Oakland, CA

8Tiburon Town Council (Defendant and Respondent)
Represented by Ann R Danforth
Office of the Town Attorney
1505 Tiburon Boulevard
Tiburon, CA

9Howard Jarvis Taxpayers Association (Amicus curiae)
Represented by Timothy A. Bittle
Howard Jarvis Taxpayers Association
921 Eleventh Street, Suite 1201
Sacramento, CA

10Cohen, Jack (Amicus curiae)
11835 West Olympic Boulevard, Suite 1215
Los Angeles, CA 90064

11League Of California Cities (Amicus curiae)
Represented by Michael G. Colantuono
Colantuono Levin, PC
11406 Pleasant Valley Road
Penn Valley, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Disposition
Jun 8 2009Opinion: Reversed

Dockets
Apr 2 2007Petition for review filed
Appellants, Jimmie D. Bonander, et al. by counsel, Frank I. Mulberg. CA opinion ordered published 2-22-07.
Apr 2 2007Record requested
Apr 6 2007Received Court of Appeal record
file jacket/briefs/appendices/accordian file
Apr 23 2007Answer to petition for review filed
counsel for respondents (Town of Tiburon)
May 16 2007Petition for review granted (civil case)
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 22 2007Request for extension of time filed
counsel for aplt. requests extension of time to July 20, 2007, to file the opening brief on the merits.
May 31 2007Certification of interested entities or persons filed
counsel for resp. Town of Tiburon
Jun 1 2007Extension of time granted
on application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 20, 2007.
Jun 1 2007Certification of interested entities or persons filed
counsel for aplts. Bonander, et al.,
Jul 18 2007Request for extension of time filed
Jimmie D. Bonander et all, appellants requesting twenty day extension to August 9, 2007 to file opening brief on the merits. by Frank I. Mulberg, counsel
Jul 19 2007Extension of time granted
to August 9, 2007 to file appellant's opening brief on the merits.
Aug 2 2007Opening brief on the merits filed
counsel for aplts.
Aug 2 2007Request for judicial notice filed (granted case)
counsel for aplts.
Aug 22 2007Request for extension of time filed
Counsel for respondent requests extension of time to September 17, 2007, to file the answer brief on the merits.
Aug 28 2007Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 17, 2007.
Sep 17 2007Answer brief on the merits filed
counsel for Town of Tiburon, et al.,
Sep 25 2007Request for extension of time filed
counsel for aplt. J. Bonander, et al. requests extension of time to 10-29-07 to file the reply brief on the merits.
Oct 1 2007Extension of time granted
On application of appellants and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including October 29, 2007.
Oct 26 2007Reply brief filed (case fully briefed)
counsel for J. Bonander, et al.
Nov 13 2007Received application to file Amicus Curiae Brief
Howard Jarvis Taxpayers Assoc in support of appellants. (non-party)
Nov 21 2007Received application to file Amicus Curiae Brief
Jack D. Cohen (non-party) in support of aplts. (brief under same cover)
Nov 26 2007Received application to file Amicus Curiae Brief
brief and application under same cover League of California Cities and California State Association of Counties supports respondent Town of Tiburon
Nov 27 2007Permission to file amicus curiae brief granted
Howard Jarvis Taxpayers Association.
Nov 27 2007Amicus curiae brief filed
The application of Howard Jarvis Taxpayers Association for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Nov 27 2007Permission to file amicus curiae brief granted
Jack Cohen (non-party)
Nov 27 2007Amicus curiae brief filed
The application of Jack D. Cohen for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 6 2007Permission to file amicus curiae brief granted
League of California Cities and California State Association of Counties.
Dec 6 2007Amicus curiae brief filed
The applilcation of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 21 2007Response to amicus curiae brief filed
counsel for aplts.(Bonander, et al.)
Mar 11 2009Case ordered on calendar
to be argued on Wednesday, April 8, 2009, at 2:00 p.m., in Los Angeles
Mar 16 2009Received:
counsel for aplt. (J. Bonander, et al.) Notice of Intent to Cite
Mar 20 2009Request for judicial notice granted
Appellants' Request for Judicial Notice, filed August 2, 2007, is granted.
Mar 24 2009Filed:
Letter requesting to divide oral argument time, submitted by Thomas R. Curry, counsel for respondent Town of Tiburon. Asking to share 10 minutes with amici curiae Leage of California Cities et al.
Mar 25 2009Order filed
The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae League of California Cities et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Apr 8 2009Cause argued and submitted
Jun 5 2009Notice of forthcoming opinion posted
Jun 8 2009Opinion filed: Judgment reversed
We conclude that the general validation procedure set forth in Code of Civil Procedure sections 860 through 870.5 does not apply here, where property owners are contesting individual assessments levied under the Municipal Improvement Act of 1913. Because the Court of Appeal reached the opposite conclusion, we reverse its judgment and remand the case to that court with instructions to reverse the judgment of the trial court. OPINION BY: KENNARD, J. ---- joined by: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jul 10 2009Remittitur issued
Jul 13 2009Received:
Receipt for Remittitur from 1 DCA, Division Three.

Briefs
Aug 2 2007Opening brief on the merits filed
counsel for aplts.
Sep 17 2007Answer brief on the merits filed
counsel for Town of Tiburon, et al.,
Oct 26 2007Reply brief filed (case fully briefed)
counsel for J. Bonander, et al.
Nov 27 2007Amicus curiae brief filed
The application of Howard Jarvis Taxpayers Association for permission to file an amicus curiae brief in support of appellants is hereby granted.
Nov 27 2007Amicus curiae brief filed
The application of Jack D. Cohen for permission to file an amicus curiae brief in support of appellants is hereby granted.
Dec 6 2007Amicus curiae brief filed
The applilcation of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of respondent is hereby granted.
Dec 21 2007Response to amicus curiae brief filed
counsel for aplts.(Bonander, et al.)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by James Hairston

Facts:

Plaintiffs, Jimmie and Jean Bonander and Frank and Shelley Mulberg, objected to the inclusion of their parcels of land in a special assessment district formed by the Town of Tiburon. On June 16, 2005, the Bonanders and the Mulbergs filed a “Petition for Writ of Administrative Mandamus or Mandate and Complaint for Declaratory and Injunctive Relief” naming the Town and its council as defendants. The complaint alleged that the assessment district, as formed, violated article XIII D of the state Constitution because the apportionment method used by the district resulted in assessments against plaintiffs’ parcels that exceeded the special benefit to be conferred on those parcels.

On June 17, 2005, plaintiffs served the summons and complaint on the Town, but they did not serve the owners of the other 219 parcels within the district. On August 2, 2005, the Town answered the complaint, alleging that plaintiffs had failed to file, within 60 days of the complaint’s filing date, proof of service by newspaper publication, as required under Code of Civil Procedure sections 861 and 863. Plaintiffs then published an amended summons in a local newspaper attempting to come into compliance with Code of Civil Procedure section 861. On September 9 — 85 days after the complaint was filed — plaintiffs filed proof of publication of the amended summons.

On September 23, 2005, the Town filed a motion to dismiss based on plaintiffs’ failure to comply with Code of Civil Procedure sections 861, 861.1, and 863, which require that the summons be directed to “all persons interested” and that proof of publication be filed within “60 days from the filing of [the] complaint.” The motion to dismiss alleged that plaintiffs had missed that deadline by 25 days subject to procedure codified in Code of Civil Procedure section 860 et seq. On November 3, 2005, the trial court ordered dismissal of the complaint because plaintiffs had failed to file proof of service by publication within the requisite 60 days from the filing of the complaint (Code Civ. Proc., § 863), and because they had failed to show good cause for their delay. The Court of Appeals affirmed.

Issue:

Whether the general validation procedure set forth in Code of Civil Procedure sections 860 through 870.5 applies when a property owner contests an individual assessment levied under the Municipal Improvement Act of 1913?

Holding:

No. The general validation procedure set forth in Code of Civil Procedure sections 860 through 870.5 does not apply where property owners are contesting individual assessments levied under the Municipal Improvement Act of 1913.

Analysis:

1) Actions to contest the validity of an assessment were not governed by section 18 of the Municipal Improvement Act of 1913—including its requirement of notice by newspaper publication. Rather, section 6 of that act (later codified as Sts. & Hy. Code, § 10400 (Stats. 1953, ch. 192, § 4, p. 1186)) continued to be the only statute governing such actions, and it did not require any special notice procedures.

2) The general validation procedure the Legislature codified as Code of Civil Procedure sections 860 through 870, does not, in itself, authorize any validation actions; rather, it establishes a uniform system that other statutory schemes must activate by reference.

3) Actions to contest assessments continue to be governed solely by section 10400 of the Streets and Highways Code, as they have been since 1913, and therefore they are not subject to the general validation procedure. In particular, they are not subject to the requirement of newspaper publication.

4) Actions contesting individual assessments have always been private law actions that are binding only on the parties to the action, and therefore service on and notice to other property owners by newspaper publication is not necessary.

5) An action under section 10400 of the Streets and Highways Code to contest an assessment can merely invalidate that assessment — it cannot impose an obligation on nonparties to pay an assessment — and therefore service on and notice to other property owners by newspaper publication is unnecessary.