Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge, Super. Ct. No. 03-207142.
Law Office of Frederick C. Roesti, Frederick C. Roesti, for Defendant and Appellant.
Carlson Law Corporation, Colleen Carlson; and Law Offices of Michael J. Lampe, Michael J. Lampe and Michael P. Smith, for Plaintiff and Respondent.
OPINION
Kane, J.
Plaintiff Orosi Public Utility District (OPUD) brought a foreclosure action based on Streets and Highways Code section 8830 against defendant Mary Jane Galbiso (Galbiso) after Galbiso failed to pay special assessments levied against her real property for the construction of sewer improvements. Section 8830 is part of a division of the Streets and Highways Code known as the Improvement Bond Act of 1915 (§ 8500 et seq.), which was enacted to provide an alternative method for the issuance of bonds to be secured by special assessments. By its own terms, the Improvement Bond Act of 1915 applies only if proceedings for the issuance of bonds are commenced under its provisions (§ 8502). Here, the subject improvements and special assessments were initiated pursuant to a distinct statute, the Municipal Improvement Act of 1913 (§ 10000 et seq.), and no bonds were ever issued or bond proceedings commenced under the Improvement Bond Act of 1915. The trial court nevertheless granted foreclosure under section 8830, and Gabliso’s appeal followed. We conclude the trial court had no authority under section 8830 to order foreclosure in this case since that statute was clearly inapplicable, and accordingly we reverse that portion of the judgment, including the award of attorney fees based thereon. As to the other issues raised by Galbiso concerning the assessment and her challenge to its validity, we conclude that the trial court correctly ruled and thus affirm the remainder of the judgment.
Unless otherwise indicated, all further statutory references are to the Streets and Highways Code.
The trial court made a number of determinations in the form of declaratory relief on issues submitted by the parties at trial, which were embodied in the judgment. Additionally, the trial court previously sustained OPUD’s demurrer (on statute of limitation grounds) to Galbiso’s affirmative defenses that had challenged the validity of the assessments.
FACTS AND PROCEDURAL BACKGROUND
The 1995 Orosi Sewer Improvement District
In 1995, a number of landowners whose parcels were in the same vicinity submitted petitions to OPUD requesting the construction of sewer improvements that would benefit their properties. In response to the petitions, OPUD formed a special assessment district (called the Orosi 1995 Sewer Improvement District No. 1 -- hereafter assessment district) and authorized the construction of the improvements and the levy of special assessments pursuant to the provisions of the Municipal Improvement Act of 1913. The improvements were completed about 18 months later. In February of 2001, based on a final report from its engineer, Dennis Keller (Keller), indicating that the actual cost of the project was less than originally estimated, OPUD decreased the assessments to be collected from the various landowners. The final or adjusted assessment imposed on lands in the assessment district was $1,439.92 per single family residential unit or its equivalent in terms of sewer capacity. A notice of assessment was recorded in the Tulare County Recorder’s Office on July 31, 2001.
An “[a]ssessment district means the district of land to be benefited by the improvement and to be specially assessed to pay the costs and expenses of the improvement ….” (§ 10008.)
When the assessment district was formed, an entity by the name of Willow Springs Developers, Inc. (Willow Springs) owned Parcels 56 and 57 -- the same parcels that were later purchased by Galbiso. Willow Springs petitioned in 1995 for the formation of the assessment district on the condition that Parcels 56 and 57 be granted sewer capacity for 88 housing units which would serve Willow Springs’s proposed residential development. Based on Willow Springs’s petition, Parcels 56 and 57 were assessed for 44 sewer connections each. This meant that the special assessment imposed on Parcel 56 was $63,356.48 (44 sewer connections times $1,439.92), and the same amount was assessed against Parcel 57.
Sewer Connection Moratorium
By late 1995, landowners requesting sewer services from OPUD were informed there may not be adequate treatment capacity for new sewer connections. At OPUD’s December 12, 1995 board meeting, Keller advised that the wastewater treatment facility was operating at maximum allowed capacity, that no new sewer connections were being approved and that applicants were being placed on a waiting list. On February 13, 1996, OPUD imposed a formal moratorium on all new sewer connections until capacity issues at the wastewater treatment plant could be resolved. The moratorium remained in effect until October 1997 and property owners who applied for sewer connections were put on a waiting list. Even after the formal moratorium was lifted, requests for new sewer connections were placed on a waiting list until adequate treatment capacity existed.
Transfer of Ownership of Parcels 56 and 57 and Negotiations Regarding Assessment Lien
Although Willow Springs’s petition regarding the formation of an assessment district indicated that it sought capacity for 88 sewer connections for Parcels 56 and 57, it apparently abandoned its efforts to develop housing on Parcels 56 and 57, and in late 1995 it transferred ownership of the parcels to an entity known as World Interactive Network. The transfer coincided with the time period in which the lack of sewer treatment capacity came to light, but nothing in the record establishes the reason for Willow Springs’s action. In 1998, an application that Willow Springs had previously filed with Tulare County to subdivide Parcels 56 and 57 into 88 housing units expired without approval.
In 1998, the Schymiczek Family Trust came into ownership of Parcel 56 based on a foreclosure of a second mortgage. Herman Schymiczek (Schymiczek) testified that the Schymiczek Family Trust attempted to sell Parcel 56 from 1998 to 2001, but developers were not interested in purchasing the property because of OPUD’s lack of capacity to provide sewer connections.
On June 21, 2001, the Schymiczek Family Trust entered into a vacant land purchase agreement with Galbiso in which Galbiso agreed to purchase Parcel 56 for $65,000. The parcel was undeveloped fallow land that Galbiso intended to use for organic farming. She felt it was ideally situated near family members and other members of the Filipino community. At the time the purchase agreement was signed, neither Galbiso nor Schymiczek were aware of any special assessment against Parcel 56. Although the preliminary title report showed the property was within the district boundaries of OPUD, no monetary assessment or lien was indicated.
Galbiso was a licensed real estate broker and admittedly was familiar with such concepts as assessments, liens and obligations running with the land.
On July 31, 2001, OPUD recorded a lien for payment of a special assessment of $63,356.48 against Parcel 56 and a lien for payment of a special assessment of $63,356.48 against Parcel 57.
Shortly thereafter, while escrow was pending on the purchase agreement concerning Parcel 56, Galbiso and Schymiczek learned of the existence of the assessment lien. Schymiczek was shocked that an assessment could equal the value of the property itself. He made an inquiry with OPUD and was informed that there was sewer treatment capacity at that time for 4 sewer connections to Parcel 56, not the assessed 44 connections. On September 4, 2001, Schymiczek wrote a letter informing OPUD that the Schymiczek Family Trust had owned Parcel 56 since 1998 but never received notice of an upcoming assessment, that the assessment appeared to be based on a previously proposed development that never went forward, and that after diligent efforts since 1998 to sell the land they had finally found an interested buyer who intended to use the land for farming. He also informed OPUD that no developers were interested in the property due to lack of sewer capacity. For all of these reasons, he asked to be placed on the agenda of the September 2001 board meeting so that OPUD could consider his request that Parcel 56 be excluded from the assessment district.
On September 11, 2001, both Schymiczek and Galbiso were in attendance at the meeting of OPUD’s board of directors. The minutes of the meeting reflect that “both [OPUD’s counsel] and [Engineer] Keller advised that the way the improvement District was established … the property could either have all the 44 units assigned or none.” Then, OPUD passed the following motion authorizing the Schymiczek Family Trust to withdraw Parcel 56 from the assessment district: “motion by Director Castillo seconded by Director Hutchinson to allow the Schymiczek’s [sic] to withdraw from the improvement district upon advise [sic] of council [sic] provided that any fees incurred are paid by the applicant. Motion carried.” Schymiczek testified at trial that he left the board meeting satisfied that the withdrawal request was granted. Galbiso similarly testified that she believed the withdrawal had been approved by the board and it “was going to be done.” She also felt satisfied with the assurances from the board’s President that OPUD would work with her to resolve any problems concerning the assessment so that escrow could close.
Soon thereafter, on September 28, 2001, OPUD’s attorney, Mr. Sullivan, wrote Schymiczek informing him that “[he] could not locate a law that allowed the District to remove [the] property from the assessment district” and that it appeared the assessment on the property was “final.” The letter added that the law does “allow the District to defer the payment of the assessments” by means of one-year deferral agreements which could be renewed from year to year. Attorney Sullivan’s letter enclosed a proposed Assessment Deferral Agreement for Schymiczek’s consideration.
On October 4, 2001, Cuesta Title Company prepared amended escrow instructions in connection with the Schymiczek-Galbiso escrow, specifically putting Galbiso on notice that Parcel 56 was subject to an assessment lien in the amount of $63,356.48. On November 30, 2001, Galbiso approved a final title report which stated that an assessment in the amount of $63,356.48 had been recorded on July 31, 2001 against Parcel 56. On November 28, 2001, Galbiso was informed by letter that Schymiczek would not be able to secure a waiver of the special assessment and that he would not give any further extensions of the escrow period, which was scheduled to close on December 3, 2001.
On December 3, 2001, escrow closed and Galbiso became the owner of Parcel 56. She testified she was willing to close escrow based on the prior assurances from OPUD’s board that they would work with her. She believed that the lien could be worked out and resolved, as in other real estate matters.
OPUD offered Galbiso a proposed Assessment Deferral Agreement at the December 2001 board meeting. Galbiso did not sign the proposed deferral agreement for a number of reasons, including her concern that there was no guarantee it would actually be renewed year to year, it required her to agree to the validity of the special assessment for 44 sewer connections, it had an interest provision and she did not want to be continually paying interest on an excessive assessment, she did not understand how she might transfer the sewer connections to others, and it required full payment for 44 connections even though OPUD did not have capacity for more than three or four connections for Parcel 56. She was also confused how a property zoned for use as a single-family residence could be charged for 44 sewer connections.
On May 16, 2002, OPUD started billing Galbiso for the assessment on Parcel 56 and she began making monthly payments. Galbiso was willing to pay the monthly amounts for a period of time while attempting to resolve the assessment issues. On March 6, 2003, Galbiso purchased Parcel 57 at a county tax sale for $76,000. Parcel 57 was fallow farmland zoned for agricultural use. At the time of the purchase, Galbiso was aware that Parcel 57 was in the assessment district. On May 12, 2003, OPUD billed Galbiso for $12,917.52, the delinquent portion of its assessment on Parcel 57. Galbiso stopped making any assessment payments in the spring of 2003.
In October of 2003, Galbiso’s attorney requested that if OPUD was unwilling to reduce the assessment based on Galbiso’s intended use of the property (farming), a modified deferral agreement should be worked out. OPUD’s board of directors agreed to further negotiation regarding a deferral agreement. In October and November of 2003, proposed drafts were exchanged by counsel, but no agreement was reached. The final obstacle was apparently Galbiso’s insistence on a provision that preserved her right to assert any defense against the special assessment. When the parties were unable to come to terms on a deferral agreement, OPUD elected to pursue foreclosure of the assessment liens on Parcels 56 and 57.
Proceedings in Foreclosure Action
OPUD filed its Complaint for Foreclosure of Delinquent Assessment on September 30, 2003. It alleged the delinquent amounts due on Parcels 56 and 57, and sought the remedy of foreclosure of assessment liens pursuant to section 8830. An answer was filed by Galbiso on May 6, 2004. The answer included numerous affirmative defenses. On June 15, 2004, the trial court granted a demurrer without leave to amend as to the first, second and fourth affirmative defenses on the ground that any challenges to the validity of the special assessment were time-barred by statute (§ 10400).
The case was tried on February 7, 2005. At time of trial, both parties requested that the complaint be deemed to state a claim for declaratory relief on certain issues submitted by the parties. The court granted the request. Although no amended pleading was filed, the trial court summarized its understanding of the submitted issues as follows: (1) Did Galbiso’s property receive a benefit from the 1995 improvement district?; (2) Was the burden of the assessment proportional to the benefit?; (3) Was OPUD required to reassess the assessment due to change of circumstances?; (4) Did OPUD negotiate in good faith to complete the deferral agreement?; and (5) Can OPUD bring an action to foreclose under section 8830? On August 9, 2005, the trial court issued its findings and ruling after trial.
The trial court concluded, among other things, that Galbiso’s property received a proportional benefit from the sewer improvements; that no reassessment by OPUD was required by equitable considerations, changed circumstances or otherwise; that OPUD negotiated in good faith to complete a deferral agreement; and that OPUD was entitled to bring an action to foreclose under section 8830. On September 8, 2005, Galbiso filed a motion for new trial which was denied on September 30, 2005. A judgment granting foreclosure and determining the submitted issues was entered on December 19, 2005. Timely notice of appeal followed.
DISCUSSION
Galbiso raises numerous claims of error, which we briefly summarize as follows: (1) The trial court had no power or jurisdiction to grant foreclosure under section 8830 since that statute did not apply; (2) The trial court improperly sustained the demurrer to Galbiso’s affirmative defenses, which defenses had challenged the validity of the special assessment; (3) Equitable and other considerations required OPUD to reassess the property; (4) Enforcement of the assessment was improper because OPUD previously took official action (a board resolution) to remove Parcels 56 and 57 from the assessment district; and (5) Certain findings were not supported by substantial evidence. We will address each of these contentions in turn.
I. Whether Foreclosure Remedy Under Section 8830 Was Available
We begin with consideration of whether section 8830, the statutory premise for OPUD’s foreclosure action, was applicable under the facts of this case. As explained hereafter, we conclude that it was not, and hence we reverse that portion of the trial court’s judgment which ordered a foreclosure remedy.
A. Standard of Review and Rules of Statutory Construction
The question of whether the foreclosure remedy set forth in section 8830 is applicable in the present context is one of statutory construction, and therefore we undertake a de novo standard of review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Finnegan v. Schrader (2001) 91 Cal.App.4th 572, 579.)
We begin with established principles of statutory construction. A statute should be interpreted so as to effectuate its apparent purpose. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) The legislative purpose is determined in the first instance by looking to the words used in the statute. (Industrial Risk Insurers v. Rust Engineering Co. (1991) 232 Cal.App.3d 1038, 1042.) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) A court must accord significance, if possible, to “every word, phrase and sentence in pursuance of the legislative purpose,” and “a construction making some words surplusage is to be avoided.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Id. at p. 1387.) “The act must be considered and applied in all of its parts, and each section must be reconciled with the others and be made effective if possible.” (Wulff-Hansen & Co. v. Silvers (1942) 21 Cal.2d 253, 260.)
B. Statutory Context and Scope of Section 8830
Significantly, section 8830 is a single provision of a larger act or statute known as the Improvement Bond Act of 1915. (§ 8500 et seq.) We therefore begin our analysis of section 8830 with a consideration of the scope and purpose of the act of which section 8830 is an integral part.
According to its own terms, the purpose of the Improvement Bond Act of 1915 is to provide “an alternative system for the issuance of bonds to represent and be secured by the assessments made to pay the costs and expenses of the work or improvements ….” (§ 8502, italics added.) Early judicial construction confirmed the intent was to provide “‘a method of issuing bonds to represent assessments, the assessments being levied under some other statute ….’” (American Co. v. City of Lakeport (1934) 220 Cal. 548, 553.) Although other special statutes regarding the creation of assessment districts for local improvements, including the Improvement Act of 1911 (§ 5000 et seq.) and the Municipal Improvement Act of 1913, authorized the issuance of bonds to secure assessments (see 37 Cal.Jur.3d (2001) Highways & Streets, § 127, p. 275), the Improvement Bond Act of 1915 allowed “‘for a more marketable type of security, bonds issued serially in even denominations, secured by assessments payable at the same time and in the same manner as general taxes.’” (American Co. v. City of Lakeport, supra, 220 Cal. at p. 553.) Under the 1915 act, the unpaid assessments would constitute a trust fund for the payment of principal and interest of the bonds (§ 8700). Moreover, when an assessment was delinquent under the Improvement Bond Act of 1915, the special methods of enforcement set forth therein became applicable (American Co. v. City of Lakeport, supra, 220 Cal. at p. 553), including (1) a sale for delinquency in which the real property is treated as “tax-defaulted” in the same manner as real property is tax defaulted for purposes of nonpayment of general city or county taxes (§ 8800 et seq.), and (2) a “cumulative remedy” of a foreclosure action in the superior court (§ 8830).
Although the Municipal Improvement Act of 1913 authorizes the issuance of bonds, the legislative body must determine whether to issue the bonds under the provisions of either the Improvement Act of 1911 or the Improvement Bond Act of 1915. (§ 10600.)
A legislative body or district that has authorized the levy of special assessments pursuant to other statutory schemes (e.g., the Improvement Act of 1911 or the Municipal Improvement Act of 1913) may determine that bonds shall be issued under the provisions of the Improvement Bond Act of 1915. (§§ 8570-8571.) As provided in section 8571, the resolution stating the intention to issue bonds under the Improvement Bond Act of 1915 must be explicit: “If the legislative body determines that bonds shall be issued as provided in this division to represent the expense of any proposed work or improvement, it shall, in the resolution of intention to do the work, do all of the following: [¶] (a) Declare that bonds shall be issued pursuant to Division 10 (commencing with Section 8500) to represent the expenses of the proposed work or improvement. [¶] (b) Specify the rate or maximum rate of interest which the bonds shall bear. [¶] (c) State the determination of the city pursuant to Section 8769.” Further procedures are set forth in the code for the issuance and sale of the bonds. (§§ 8620-8626.)
A “city” includes counties, cities, districts and agencies (§ 8503) and a “legislative body” is the board of the applicable entity (§ 8504).
Consistent herewith is section 10600, which authorizes a legislative body conducting proceedings under the Municipal Improvement Act of 1913 to determine and declare in its resolution of intention that “bonds shall be issued under the provisions of either the Improvement Act of 1911 or the Improvement Bond Act of 1915.”
Of importance to the precise issue before us, section 8502 expressly delineates when the Improvement Bond Act of 1915 is applicable and when it is not, as follows: “This division provides an alternative system for the issuance of bonds to represent and be secured by the assessments made to pay the costs and expenses of the work or improvements referred to in this division and the provisions of this division shall not apply to or affect any other provisions of this code. When any proceedings for the issuance of bonds are commenced under this division, the provisions of this division and no other shall apply to such proceedings.” (Italics added.)
It is clear from the above language and purposes of the Improvement Bond Act of 1915 that its provisions do not automatically apply to all special assessments. Rather, unless otherwise indicated, this alternative system for issuing and securing improvement bonds is available only if necessary steps are taken by the legislative body or district to commence proceedings for issuance of bonds under the provisions of the 1915 act. It follows that if such proceedings are not commenced, resulting in no issuance of bonds under the Improvement Bond Act of 1915, the special enforcement provisions thereof, including the foreclosure remedy, are not applicable.
This conclusion is further supported by the terms of the foreclosure provisions at issue. Section 8830 provides that when assessments have not been paid, the legislative body may bring a foreclosure action on its own behalf, on behalf of the bondholders, or it may appoint a trustee to do so on behalf of the bondholders (§ 8830, subds. (a) & (b)). By allowing these alternative methods of pursuing a foreclosure action, including an action for the benefit of the bondholders, the statute takes for granted the fact that bonds have been previously issued. Moreover, section 8834, which sets forth the brief factual elements that will suffice in alleging a foreclosure action under section 8830, specifically includes that “bonds upon the security of the assessment or reassessment were duly issued under this division ….” (§ 8834, subd. (d).) The same section provides the action must be brought “prior to the expiration of four years subsequent to the last maturity of the principal of bonds secured by the assessment or reassessment.” (§ 8834.) Thus, it is appears the subject foreclosure provisions presuppose the prior issuance of bonds under the Improvement Bond Act of 1915.
From the above survey of the relevant provisions, we conclude that the foreclosure remedy set forth at section 8830 is not available in all special assessment cases. Rather, the subject foreclosure statute applies only if bond proceedings were commenced under the Improvement Bond Act of 1915, which proceedings have resulted in, or in due course will reasonably result in, the actual issuance of bonds.
C. Section 8830 Was Inapplicable in This Case
In the present case, the assessment district was organized and the special assessment levied pursuant to the provisions of the Municipal Improvement Act of 1913. OPUD did not commence proceedings thereafter for the issuance of bonds. None of the resolutions of the board of OPUD expressly determined that bonds “shall be issued” under the provisions of the Improvement Bond Act of 1915 or otherwise. (§§ 8570 & 10600.) No bonds were ever issued nor were affirmative steps taken to do so. Under these facts, it is clear that the foreclosure provision set forth at section 8830 of the Improvement Bond Act of 1915 was not applicable.
Keller’s report indicated that bonds were initially discussed as a possible funding source. OPUD never pursued that possibility, however, which Keller testified was due to the fact that other funds were available that would result in a cost savings.
The trial court was persuaded otherwise because section 8830 sets forth foreclosure as a “cumulative remedy.” However, when section 8830 is read in context with other provisions of the Improvement Bond Act of 1915 (e.g., §§ 8502 & 8834), it is plain that the “cumulative remedy” language refers only to the remedies provided for under the Improvement Bond Act of 1915 itself. In other words, in cases in which the Improvement Bond Act of 1915 is applicable, the legislative body would be able to avail itself of all the remedies set forth therein, including conducting a tax sale of the property (§ 8800 et seq.) and filing an action for judicial foreclosure under section 8830 (§ 8830 subds. (a) & (b)).
For bonds issued regarding assessments that were confirmed before 1978, a third available remedy was for the city or district to issue a special tax to cover delinquent amounts in the bond redemption fund. (§ 8809.)
The cases cited by OPUD do not convince us otherwise. In Hammond v. City of Burbank (1936) 6 Cal.2d 646, a suit by bondholders where bonds had issued under the Improvement Bond Act of 1915, the Supreme Court held, among other things, that the remedies provided under the Improvement Bond Act of 1915 were not in the alternative, but were cumulative. (Id. at p. 660.) In Gustine City v. Silveira (1944) 67 Cal.App.2d 403, a foreclosure action in which bonds were previously issued under the Improvement Bond Act of 1915, the property owner argued on appeal that the city had three mutually exclusive alternative remedies under the 1915 act -- i.e., (1) To sell the property under a tax sale, (2) To levy a special tax, or (3) To bring foreclosure proceedings -- but “as the city had previously exercised one of such alternatives and levied a special tax in addition to paying off the bonds, it lost its right to foreclose.” (Id. at pp. 408-409.) The Court of Appeal disagreed, concluding based on Hammond that foreclosure was a cumulative remedy to other remedies set forth in the statute. (Ibid.) In summary, neither Hammond nor Gustine stand for the proposition that the foreclosure remedy provided under the Improvement Bond Act of 1915 is applicable in cases where no bond proceedings were commenced or bonds issued under its provisions. Instead, both cases merely affirm the proposition that where bonds are issued under the Improvement Bond Act of 1915, the remedies enumerated therein are cumulative. (See also Wulff-Hansen & Co. v. Silvers, supra, 21 Cal.2d at p. 263 [foreclosure remedy is cumulative “not solely for the benefit of the city, but as an aid and assistance to the city in discharging its duty to the bondholders” under the 1915 Act].)
In the same vein, OPUD turns our attention to the following excerpt from the case of Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676: “In summary, although the bewildering array of acts governing special assessments in general and sewer improvements in particular, each with its own distinctive scheme of procedure, might well benefit from a comprehensive legislative reexamination with a view to simplification and unification, we find nothing in the present cluster of statutes which would preclude a local legislative body from proceeding in this area under any of the available acts, including the Municipal Improvement Act of 1913.” (Id. at p. 686.) The above quote was in answer to the plaintiff’s contention therein that the sewer assessment district in that case was “void” because it should have been commenced under a different statutory scheme that was more specific to sewer improvements. The Supreme Court’s holding merely confirmed that a legislative body may proceed to form a sewer improvement district under any of the available statutory schemes, including the Municipal Improvement Act of 1913. It did not suggest that whenever an assessment district is organized under one statutory scheme, the provisions of other schemes will automatically be applicable.
Finally, OPUD correctly notes that the formation of an assessment district under the Municipal Improvement Act of 1913 does not preclude the applicability of the Improvement Bond Act of 1915. In this regard, OPUD points out there are several situations in which the acts are intended to overlap. For example, both acts state that where special assessments are commenced under the Municipal Improvement Act of 1913, the legislative body may determine and declare that bonds will be issued under the provisions of the Improvement Bond Act of 1915. (See §§ 8570 & 10600.) Under section 10600, “the proceedings shall be subject to all of the curative clauses and powers of reassessment” that are provided for in the Improvement Act of 1911 or the Improvement Bond Act of 1915. This wording of section 10600 has been construed to incorporate the curative clauses and powers of reassessment of the 1911 and 1915 acts into the specified proceedings under the Municipal Improvement Act of 1913 (Harrison v. Board of Supervisors (1975) 44 Cal.App.3d 852, 864), even if bonds have not been issued. (Brenkwitz v. City of Santa Cruz (1969) 272 Cal.App.2d 812, 817.)
The term “curative clauses” generally refers to those sections which provide that by their issuance, the bonds are conclusive evidence of the regularity of all prior proceedings (see, e.g., § 8655 [Improvement Bond Act of 1915], and § 10610 [Municipal Improvement Act of 1913]), thereby “curing” defects other than constitutional defects. (See City of Plymouth v. Superior Court (1970) 8 Cal.App.3d 454, 461-462; and 37 Cal.Jur.3d (2001) Highways & Streets, § 129, p. 280.) Since bonds were not issued in this case, the curative clauses were clearly not applicable.
These general observations do not alter our conclusion. We agree that a legislative body creating an assessment district under the Municipal Improvement Act of 1913 may elect to issue bonds under the Improvement Bond Act of 1915. The respective statutes clearly authorize such action (see §§ 8570 & 10600). However, as already noted, that legislative election to issue bonds never occurred in this case. Further, we agree that pursuant to the terms of section 10600, the proceedings indicated therein will be subject to the specifically referenced provisions of the Improvement Bond Act of 1915. However, section 10600 only refers to the “curative clauses” and “powers of reassessment,” not to any other provisions. Obviously, particular provisions of one act may be made applicable to proceedings under another act when so provided by statute. The problem for OPUD, however, is that no such statutory authorization exists which would allow the court to apply the foreclosure provision of the Improvement Bond Act of 1915 in the present context. In short, OPUD has failed to support its broad assertion that “[t]he 1915 Act expressly incorporates … the 1913 Act, just as the 1913 Act expressly incorporates … the 1915 Act.”
We conclude that in the absence of a statutory exception to the general rule embodied in section 8502, that section controls the scope and applicability of the Improvement Bond Act of 1915. Specifically, the provisions of the 1915 act “shall not apply to or affect any other provisions of this code” but shall apply “[w]hen any proceedings for the issuance of bonds are commenced under this division.” (§ 8502.) Since proceedings for issuance of bonds were never commenced by the legislative body (OPUD) in this case, the provisions of the 1915 act -- including the foreclosure remedy -- were not triggered.
Of course, OPUD had other avenues open to it. The enforcement procedures set forth in the Municipal Improvement Act of 1913 were, and presumably still are, fully available to OPUD. Although the 1913 act does not have a judicial foreclosure remedy, it provides a procedure for a tax sale of the delinquent property pursuant to sections 10405 through 10430 thereof.
D. Disposition Regarding Foreclosure Remedy
We conclude that the trial court had no authority under section 8830 to order a judicial foreclosure in this case because that statute was clearly inapplicable, and accordingly we reverse the judgment insofar as it granted a foreclosure remedy. Additionally, the trial court’s award of attorney fees based on section 8831 (also part of the Improvement Bond Act of 1915) is reversed for the same reason.
The Municipal Improvement Act of 1913 does not include a foreclosure remedy or a provision for recovery of attorney fees in connection therewith.
II. Whether Other Issues Were Correctly Decided
We now direct our attention to a number of other disputed issues which are the subject of this appeal. In connection with our review thereof, where we are called upon to determine the correct rule of law to be applied or to interpret legal concepts and their underlying values, our standard of review is de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.) To the extent we review questions of fact, the trial court’s determinations are given deference under the substantial evidence standard. (Ibid.)
A. Galbiso’s Challenge to Validity of the Assessments Was Time-Barred Pursuant to Section 10400
“[T]he power to specially assess property to pay for public improvements is based upon existence of a special benefit to the assessed property.” (Harrison v. Board of Supervisors, supra, 44 Cal.App.3d at p. 856.) In light of this principle, it is well established that a special assessment may be set aside as invalid if the record establishes “that the assessment as finally confirmed is not proportional to the benefits to be bestowed on the properties to be assessed or that no benefits will accrue to such properties.” (Dawson v. Town of Los Altos Hills, supra, 16 Cal.3d at p. 685; and see Harrison v. Board of Supervisors, supra, 44 Cal.App.3d at pp. 856-857.) However, any such challenge to the validity of an assessment imposed under the Municipal Improvement Act of 1913 must be filed within 30 days after the assessment is levied. (§ 10400.) The period for challenging the assessment is brief in order to prevent the possibility of attacks on the validity of assessments long after they are levied, and to consummate proceedings without delay in order to provide assurance to bond buyers and insure the marketability of assessment bonds. (See Allis-Chalmers v. City of Oxnard (1980) 105 Cal.App.3d 876, 883.)
In 1996, after the assessment district was formed and the assessment was levied herein, the California voters passed Proposition 218 as a constitutional amendment regarding special assessments. Among its provisions, section 4 of Article XIII D of the California Constitution states as follows: “An agency which proposes to levy an assessment shall identify all parcels which have a special benefit conferred upon them and upon which an assessment will be imposed. The proportionate special benefit derived by each identified parcel shall be determined in relationship to the entirety of the capital cost of a public improvement, the maintenance and operation expenses of a public improvement, or the cost of the property related service being provided. No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel. Only special benefits are assessable, and an agency shall separate the general benefits from the special benefits conferred on a parcel.” (Cal. Const., art. XIII D, § 4, subd. (a).) Additionally, Proposition 218 provides that “[i]n 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.” (Cal. Const., art. XIII D, § 4, subd. (f).) Preexisting assessments which were imposed exclusively to finance the capital costs of “sidewalks, streets, sewers, water, flood control, drainage systems or vector control” were exempted from the approval process and procedures set forth in section 4. (Cal. Const., art. XIII D, § 5.) Although the parties have not directly raised the issue, it appears the exemption provision would apply in this case.
In her answer to OPUD’s foreclosure complaint, Galbiso raised three affirmative defenses alleging that the special assessments were invalid. The first affirmative defense asserted the assessments were void and unenforceable due to lack of special benefit to Galbiso’s property; the second affirmative defense claimed the assessments were void and unenforceable because the assessment formula did not correlate to any benefit received by Galbiso; and the fourth affirmative defense asserted the assessments were invalid due to failure to comply with requirements of due process. OPUD filed a demurrer to the above defenses on the ground that any challenge to the validity of the special assessments was time-barred pursuant to section 10400, since Galbiso (or her predecessors in interest) failed to contest the validity of the assessments within 30 days of the levy of the assessment. The trial court sustained the demurrer to said affirmative defenses without leave to amend.
Section 10400 states, in relevant part, as follows: “The validity of an assessment or supplementary assessment levied under this division shall not be contested in any action or proceeding unless the action or proceeding is commenced within 30 days after the assessment is levied.” The limitations period set forth in this section applies not only to causes of action but also to affirmative defenses which challenge the validity of an assessment. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212-1218.) It also applies to all persons, not merely to those who were the original property owners at the time the assessment proceedings were commenced. (Id. at p. 1214.)
The statute specifies that the period begins to run when the assessment is “levied.” (§ 10400.) Where an assessment is established under the provisions of the Municipal Improvement Act of 1913, as was the case here, it is officially “levied” when the legislative body adopts the resolution confirming the report and assessment. (§ 10312; Fahey v. City Council (1962) 208 Cal.App.2d 667, 676-679.) In September of 1995, the board of directors of OPUD adopted a resolution confirming the assessment and engineer’s report, and ordering the improvement to commence. The passage of this resolution in 1995 commenced the 30-day limitations period under section 10400.
The parties focused their statute of limitations analysis on the subsequent modification of the original assessment. In February of 2001, OPUD passed a resolution reducing the assessments, based on an updated report from its engineer. Notice of the adjusted assessment was recorded on July 31, 2001. Although, as noted above, the correct date for computing the limitations period was the original levy of the assessment in 1995 (see Schuetram v. Granada Sanitary Dist. (1964) 229 Cal.App.2d 25, 31-32 [subsequent modification did not extend period for challenging assessment]), even if the date of July 31, 2001 is used, the result is the same. Galbiso’s affirmative defenses were not asserted until May of 2004, long after the limitations period had expired. Consequently, we hold that the trial court properly sustained the demurrers to Galbiso’s defenses in which she had challenged the validity of the assessments.
Although Galbiso’s defenses attacking the validity of the original assessment were fully disposed of in the trial court’s ruling sustaining OPUD’s demurrer, the court’s posttrial findings nevertheless briefly addressed the issues relating to the validity of the original assessment. The trial court concluded the assessment was valid because the improvements resulted in a special benefit to Parcels 56 and 57, and the assessment imposed was proportional to said benefit. Inasmuch as such challenges were time-barred, as discussed above, it is unnecessary for us to address such matters further. We now turn to consideration of whether events occurring after the time period for challenging the original assessment would nevertheless require OPUD to reassess Galbiso’s parcels.
Even assuming such issues were not time-barred, we conclude that the trial court’s conclusions were supported by substantial evidence. (See our discussion in Part I D hereafter.)
B. OPUD Was Not Required to Reassess the Property or Take Other Corrective Action Based on Changed Circumstances
Galbiso contended at trial that even if the statute of limitations prevented a challenge to the original assessment, OPUD was obliged by equitable and other considerations to reassess the property or take other corrective action, based on the holding in Furey v. City of Sacramento (1979) 24 Cal.3d 862 (Furey). The trial court disagreed, finding that Furey was distinguishable. We conclude the trial court’s decision was correct.
In Furey, a special assessment district was created for the establishment of sewer improvements in an area of Sacramento County that was intended by planning agencies for transition from agriculture to urban development. The assessment district was formed in 1961 under the provisions of the Improvement Act of 1911 (§ 5000 et seq.), and the improvements were constructed in 1961-1965 to provide adequate sewer disposal facilities for the anticipated residential and commercial use of over 4,000 acres of planned residential development. In April of 1965, the assessment on the project was confirmed, assessments were allocated against the several property owners and bonds were issued. The plaintiffs, who were property owners in the assessment district, paid all the assessments when due. (Furey, supra, 24 Cal.3d at pp. 866-867.) In 1972, the City of Sacramento (which had annexed the area) amended its zoning ordinances to set aside the land as permanent agricultural and open space. (Id. at p. 868.) The effect of this amendment was to essentially foreclose administrative discretion regarding any use of the plaintiffs’ property other than those permitted under the agricultural open space designation. (Id at p. 871.) In short, the landowners who paid the special assessments were subsequently deprived of all beneficial use of the improvements, due to intervening government action.
After the city’s action, one of the plaintiffs sought approval to develop his property, but the planning commission would not consider his application in light of the land’s designation as open space. Another plaintiff requested a reassessment of the costs of the subject improvements be undertaken and that amounts paid toward the sewer improvements be refunded. The request was unsuccessful. The plaintiffs then filed separate actions for inverse condemnation, declaratory relief and mandate, which were consolidated. The plaintiffs alleged that so long as use of the land was restricted by the amended zoning ordinance, the sewer improvements in question would be of no benefit to their land, even though they paid the assessments. (Furey, supra, 24 Cal.3d at pp. 871-872.)
The Supreme Court emphasized the unique nature of the case as follows: “Although as we have pointed out the need for government flexibility to meet the needs and requirements of each emerging generation precludes fulfilling, in all but the most extreme cases, the expectations of value brought about by earlier official moods and actions, we think that entirely different considerations must govern when those moods and actions have operated to bring about substantial financial commitment on the part of taxpayers included in a special assessment district who are precluded by later governmental action from realizing substantially all special benefits generated by the district.” (Furey, supra, 24 Cal.3d 862 at pp. 872-873.) These unique circumstances were such that relief was clearly appropriate: “Here … it is alleged that the effect of the governmental action in question is to remove for an indefinite time, if not forever, the possibility of deriving any significant benefit whatsoever from the subject improvement.… [T]he alleged effect of those limitations in removing all practical special benefit must, in the circumstances of this case, be held to give rise to a right to appropriate relief.” (Id. at p. 876.)
In considering the means by which relief might be obtained, Furey noted that under the Improvement Act of 1911 there are provisions to allow reassessment where events or determinations occurring after the original assessment operate to render the original assessment unjust. (Furey, supra, 24 Cal.3d 862 at p. 873.) Acknowledging that such provisions are discretionary, the court also considered that a land use regulation may not be applied to one otherwise subject to it if to do so would result in a taking of property without just compensation: “‘the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking under the guise of taxation of private property for public use without compensation.’ [Citations.]” (Id. at p. 874 -- citing Norwood v. Baker (1898) 172 U.S. 269, 279.) This consideration necessitated a remedy, including potential relief by means of reassessment: “Although it is true that in most cases the determination of special benefit is made at the time of the confirmation and spreading of the assessment [citations], we believe that in circumstances such as those here alleged, wherein both the undertaking of the public improvement and the action foreclosing any realistic access to the special benefits generated by it have resulted from government initiative, a present reexamination of the relationship between assessment and benefit is constitutionally required.” (Furey, supra, 24 Cal.3d 862 at pp. 874-875.)
Moreover, under the circumstances presented, the Supreme Court held that the 30-day statute of limitation for challenging the original assessment (§ 5660) could not be raised as a bar against the plaintiffs and the judicial challenge was considered “timely in all respects.” (Furey, supra, 24 Cal.3d 862 at pp. 876-877.) In so holding, the court cited with approval a federal district court decision that had allowed property owners to seek exemption in 1972 from a special assessment imposed in 1968, even though all exemptions were supposed to be applied for contemporaneously with the notice of assessment, because it could not have been contemplated that a sewer moratorium would be imposed in 1972 that would deprive them of the benefit of the improvement. (Id. at pp. 876-877 -- citing Smoke Rise, Inc. v. Washington Suburban San. Com’n. (D.Md. 1975) 400 F.Supp. 1369.)
In deciding the particular remedy that was appropriate under the circumstances, Furey concluded that if the allegations were proven at trial the city’s open space regulation could not be applied to the plaintiffs because of “the effect of those same regulations upon [the] plaintiffs’ ability to realize the special benefits generated by the assessment district in which they have been included and to which they have substantially contributed.” (Furey, supra, 24 Cal.3d 862 at p. 877.) Of course, in the event the trial court ordered exemption from the zoning restriction as a remedy, there would be no need to also require that the city undertake a reassessment. Nevertheless, Furey instructed the trial court to allow a reasonable opportunity for reassessment to occur pursuant to the city’s discretion. It concluded as follows: “We hold, therefore, that if the allegations made in the complaints before us are demonstrated at trial, relief would lie by way of declaratory relief or mandate precluding the application of the subject land-use regulations to [the] plaintiffs. We also believe, however, that prior to the issuance of any judgment the trial court should afford [the] defendants a reasonable opportunity to make use of the reassessment procedures to which we have adverted above … or to take other appropriate action directed toward ameliorating in equitable fashion the gross inequities which here appear.” (Id. at p. 877-878.)
That is, reassessment was necessary as a matter of law only if the zoning amendment was applied, without exemption, to the property owners. (Cf. Furey, supra, 24 Cal.3d 862 at p. 866 [in absence of reassessment, amended ordinance could not be applied] and pp. 874-875 [reassessment required if amended ordinance was applied].)
In her appeal, Galbiso argues that under the principles set forth in Furey, OPUD is required to grant a reassessment concerning Parcels 56 and 57. Galbiso’s position is that Furey confers a right to an equitable reassessment, even after the statute of limitation expires for challenging the validity of an assessment, whenever “changed circumstances” occur that allegedly undermine the relationship between the original assessment and the special benefit to the property. Such changed circumstances are claimed to be demonstrated here in light of the following: First, the original assessment on Parcels 56 and 57 was based on Willow Springs’s initial request in 1995 for 88 sewer connections, which connections were intended to be used in a planned residential development which Willow Springs hoped to build on the two parcels. Shortly thereafter, Willow Springs sold the property and its plans to develop it were evidently abandoned. Although the trial court found there was no evidence that OPUD was aware (at the time of the assessment confirmation proceedings) that Willow Springs had abandoned its development plans, a significant change of circumstances had nevertheless occurred because the basic rationale for the assessment figure on Parcels 56 and 57 was the originally intended 88 connections. Second, by the time Galbiso was in escrow for the purchase of Parcel 56 in 2001, and when request was made to remove or exempt the property from the assessment district, a de facto sewer moratorium (a waiting list) continued to exist in that there was only available treatment capacity to allow for three or four new connections, thus her potential ability to make use of the “right” to 88 hookups was at least significantly hindered or subject to substantial delays. Third, OPUD knew that Galbiso did not intend to develop the property and merely wanted to farm it, thus she would obviously not need or use more than a few connections, and certainly not the quantity she was being charged for in the assessment.
OPUD responds that Furey is distinguishable because here the public entity did not take action which precluded Galbiso from realizing the benefits of the assessed improvements, including use of 88 connections. Although there was (and is) a waiting list, landowners who have requested connections have, in all but a few cases, eventually received approval once further treatment capacity has become available. In contrast, Galbiso has never asked to be placed on the sewer connection waiting list and has simply chosen not to pursue development of the land. Moreover, according to OPUD, the equities are not in Galbiso’s favor because she purchased both parcels knowing they were subject to the special assessments and that OPUD was not willing to waive them. In so doing, she willingly took her chances that a satisfactory resolution would be worked out with the board concerning the assessments. When she thereafter refused to sign a proposed deferral agreement, and OPUD took steps to enforce the assessments after she failed to make payments when due, she had no basis to complain that it was somehow OPUD’s fault.
On balance, we agree that this case is distinguishable from the unique facts and circumstances presented in Furey. Most importantly, our case is not analogous to the situation of a landowner who paid a special assessment for the construction of improvements to benefit his land and thereafter was prevented by action of the government (or public entity) from ever realizing or enjoying the benefit of such improvements. Galbiso would have us broaden or extend the holding of Furey to require equitable reassessment, even after expiration of the statutory period for challenging assessments, whenever changed circumstances impact the relationship between the assessment and the special benefit to the property. However, we do not believe Furey was intended to be lifted from its factual context, as evidenced by that opinion’s repeated emphasis on the pivotal circumstance of governmental action that precluded use by the property owner of the special benefits. (Furey, supra 24 Cal.3d at pp. 866, 872-873, 875-877.) Additionally, we concur with the following findings of the trial court that are fully supported by the record: “Here, [Galbiso] testified she never asked OPUD for a sewer connection. Unlike the governmental bodies in Furey, OPUD has not prevented her as a matter of law from connecting her property to OPUD sewer lines. No governmental action has deprived her of the benefits of the 1995 Improvement District. [Galbiso’s] own decision has caused her to use the property for agricultural rather than subdivision uses. The benefits of the improvement district are still available to the property. [Galbiso] has not used them by her own choice.” For all of these reasons, the trial court correctly held that Furey does not require OPUD to grant a reassessment or to take other corrective action in this case.
The trial court’s ruling noted there are practical reasons that improvement districts, after the statutory period for making challenges expires, should generally be able to stand by final (confirmed) assessments that were levied based on information provided when the assessment district was formed: “[Galbiso] ignores that public utility districts, like OPUD, cannot subsidize private development. In incurring debt for development of its facilities at the request of developers, public utility districts … must rely on representations made by applicants in their petitions. Districts cannot be forced to subsidize a development simply because a developer subsequently jettisons a project. Districts should also not be forced to pass the additional costs to other users in the district[,] particularly when the property benefited is still available to bear its proportional burden.”
Galbiso also refers to Solvang Mun. Improvement Dist. v. Board of Supervisors (1980) 112 Cal.App.3d 545. That case, however, does not support reassessment because it involved a type of assessment that was designed to fluctuate based on changes in the assessed value or usage of the property. (Id. at p. 553.) The present case, by contrast, is a fixed assessment.
C. OPUD’s Initial Resolution to Allow the Parcels to Be Removed or Exempted from Special Assessment Did Not Mandate Remedial Action
Galbiso contends that OPUD’s initial decision to allow the property to be removed from the assessment district, which was never explicitly reversed, necessitates equitable reassessment or other corrective action. At the September 2001 meeting attended by Galbiso and Schymiczek (when the sale to Galbiso was in escrow), OPUD’s board of directors considered Schymiczek’s request for relief and passed a motion to allow the subject property to be removed or exempted from the assessment district. Further, as pointed out by Galbiso, it appears that OPUD later backed away from this decision (although it never formally reversed its approval of the motion) after its legal counsel could not find a basis for making such changes and indicated that the assessment was “final.”
In passing, we note that OPUD did have discretion to grant at least one form of relief -- i.e., that of reassessment. Although the Municipal Improvement Act of 1913 does not have its own procedural mechanism for reassessment, section 10600 thereof has been construed to incorporate all the curative clauses and powers of reassessment provided under the Improvement Act of 1911 and the Improvement Bond Act of 1915. (Harrison v. Board of Supervisors, supra, 44 Cal.App.3d at p. 864; and see Brenkwitz v. City of Santa Cruz, supra, 272 Cal.App.2d at p. 815.) This broad incorporation of reassessment powers would, we believe, necessarily include the reassessment provisions in the Improvement Act of 1911 (as referenced in Furey) which give discretion to the legislative body to grant reassessments “to relieve owners” and allow such relief “at any time before the assessments levied … are fully paid and discharged.” (§ 5550; and Furey, supra, 24 Cal.3d at pp. 873-874.) Moreover, the Municipal Improvement Act of 1913 contains its own provisions for making changes to an assessment. (See §§ 10310.4 & 10351.)
Contrary to Galbiso’s suggestion, OPUD was not irrevocably bound by its initial decision for several basic reasons. First, the wording of the September 2001 motion, as approved, indicates it was preliminary in the sense that further steps or review were contemplated, including advice of counsel. Second, no authority is cited by Galbiso to show that OPUD’s board would not have inherent authority to reconsider a decision before that action was implemented or final, which reconsideration obviously occurred here by implication. Third, the statutory scheme expressly provides that the legislative body has broad authority to correct or amend its proceedings or other actions (see §§ 10310.4 & 10351). Fourth, significant changes would ordinarily require a process and a period of time in which such actions are proposed, notice is given, and changes are confirmed by resolution. (See §§ 10351-10355.) In light of these considerations, we conclude that OPUD’s board was not bound by passage of the subject motion and it had discretion to reconsider and correct its course of action, as it implicitly did.
Galbiso argues further that approval by OPUD’s board of directors of the September 2001 motion proves or confirms the need for ameliorative action (such as reassessment) in this case, because when the board actually considered the circumstances regarding the assessment, it was willing to grant relief. We disagree. As already pointed out, the decision in September 2001 was preliminary and it did not irrevocably obligate a particular outcome. OPUD could, and did, make a course correction thereafter.
D. Other Findings Supported by Substantial Evidence and/or Claims of Error Nonprejudicial
Because challenges to the validity of the assessment are time-barred, as discussed earlier herein, we concluded it was unnecessary to the disposition of this appeal to address Galbiso’s contentions that the assessments were invalid or unenforceable due to (1) lack of substantial benefit to her parcels and/or (2) lack of proportionality between the assessment and the benefit accruing to the property. In response to the parties’ request, the trial court briefly addressed such issues in its findings and concluded that Gabliso’s contentions were without merit. Galbiso claims such findings were unsupported by substantial evidence. We disagree.
Even assuming Galbiso’s challenge to the assessment on these grounds was not barred by the statute of limitations, there was substantial evidence to support the trial court’s findings. The assessment district and improvements were initiated in response to a consent petition by several landowners, including Galbiso’s predecessor (Willow Springs), who sought, for the benefit of their lands, sewer improvements in the nature of “construction and/or acquisition of sewer lines, lift stations, conduits, and appurtenances.” Keller testified at trial that Parcels 56 and 57 were benefited by such sewer improvements in terms of closer proximity of available (usable) sewer lines to the parcels and, in reliance on Willow Springs’s request in its 1995 petition, sewer collection and flow capacity for an anticipated residential development on the property that would include 88 total connections. To accomplish this objective, some of the improvements involved a shifting or redirecting the flow of sewage from old lines to new lines to create increased capacity. True, additional sewer treatment capacity became unavailable in the moratorium period, and a waiting list for new connections was then implemented due to lack of adequate capacity at the wastewater treatment facility. However, the problem at the wastewater treatment facility was unrelated to the flow or collection capacity issues addressed by the assessment district. Nor has the waiting list been shown by Galbiso to preclude her from eventually enjoying the benefits of the improvements, as indicated above, if she so desired. In conclusion, substantial evidence supported the trial court’s determinations on these matters.
Keller testified that with benefit of the improvements, Parcels 56 and 57 would be able to connect to a sewer line at a distance of 400 feet, as opposed to a distance of 2¼ miles.
In a request filed by Galbiso on May 17, 2007, she submits subsequently discovered evidence and asks that we judicially notice certain matters and make specific findings of fact. Among other things, the items presented for judicial notice include maps of location of sewer lines before and after the improvements, and more recent documents relating to the ongoing delays involved for individuals on OPUD’s sewer connection waiting list. We deny the request for judicial notice and findings. As to the request to make findings of fact, we decline to do so since no exceptional circumstances are shown and such fact-finding discretion is only exercised to affirm the judgment. As we stated in In re Heather B. (2002) 98 Cal.App.4th 11, 14: “Code of Civil Procedure section 909 does authorize appellate courts to make findings of fact on appeal. That authority should be exercised sparingly, however, and absent exceptional circumstances, no such findings should be made. [Citation.] Further, such authority will not be exercised except to affirm the judgment. [Citations.] [The] [a]ppellant, however, would have us exercise this authority to do just the opposite, that is reverse the judgment.” (Fn. omitted.) As to the request for judicial notice, it is denied because the matters sought to be noticed would merely be cumulative in effect and we are not permitted to reweigh the evidence. (See Donovan v. City of Santa Monica (1948) 88 Cal.App.2d 386; Grove v. Lewis (1932) 125 Cal.App. 357; Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791.) Even if we granted judicial notice, the submitted documents would, at most, merely accentuate the existing conflict in the evidence, but they would not alter our conclusion regarding the existence of substantial evidence to support the trial court’s findings.
Galbiso contests the court’s findings on a number of other discrete factual issues. First, she disagrees with the court’s finding of when Galbiso first formed the intention to farm the property. We find this to be a nonmaterial issue that does not affect the correctness of the judgment. In any event, it is obvious that the trial court understood that it was her intention to farm the property. Second, Galbiso says there was no evidence that OPUD actually relied on Willow Springs’s petition or that OPUD was unaware, during the relevant time frame, that Willow Springs was not going to pursue the development. We disagree. The terms of the petition itself, subsequent resolutions of OPUD’s board, and the testimony of Keller and others supports OPUD’s reliance on Willow Springs’s petition. On the question of OPUD’s knowledge, the testimony of OPUD’s superintendent, Fred Boyles, was that he did not receive notice that Willow Springs was bankrupt or defunct. Keller gave the same answer, and added he was not aware that Willow Springs was not going forward, at least not until the September 2001 board meeting of OPUD attended by Schymiczek. Third, Galbiso challenges the trial court’s finding that a waiting list was developed in which connections were granted as capacity became available. Again, the trial court’s finding was amply supported by the record. The waiting list process was clearly established by OPUD’s board minutes and the testimony of both Keller and Fred Boyles. Fourth, Galbiso asserts the trial court erred in finding that notice was given concerning the original formation of the assessment district. We disagree. In view of the fact that Willow Springs petitioned for formation of the assessment district, there is no question that the original owner of the subject parcels was adequately notified.
Galbiso picks other sundry details in the court’s findings and asserts lack of evidentiary support, or takes issue with the manner in which the findings are expressed. We conclude these additional challenged details involve matters that are not material to our disposition or do not affect the judgment, and as such do not warrant our further consideration.
Finally, Galbiso argues this court should direct the trial court to impose attorney fees as sanctions under Code of Civil Procedure section 128.5 for alleged bad faith conduct on the part of OPUD. However, the record does not support the conclusion that sanctions of any sort are warranted in this case, much less required.
DISPOSITION
That portion of the judgment granting foreclosure and an award of attorney fees is reversed. The remainder of the judgment is affirmed. Galbiso is awarded costs on appeal.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.