Alpha Beta Acme Markets, Inc. v. City of Whittier

• Decision Date: 07 May 1968
• Docket Number: No. 2,D,2
• Citation: 68 Cal.Rptr. 327,262 Cal.App.2d 16
• Court: California Court of Appeals Court of Appeals
• Parties: ALPHA BETA ACME MARKETS, INC., Plaintiff and Appellant. v. CITY OF WHITTIER, and Whittier Uptown Parking Districtefendants and Respondents. Civ. 31161.

Page 327

68 Cal.Rptr. 327

262 Cal.App.2d 16

ALPHA BETA ACME MARKETS, INC., Plaintiff and Appellant. v. CITY OF WHITTIER, and Whittier Uptown Parking District No. 2, Defendants and Respondents.

Civ. 31161.

Court of Appeal, Second District, Division 4, California.

May 7, 1968.

Turpit, Thompson & Miller and Wayne E. Thompson, Whittier, for plaintiff and appellant.

Wilson, Jones, Morton & Lynch, Robert G. Auwbrey, San Mateo, and Bewley, Lassleben & Whelen, Whittier, for defendants and respondents.

KINGSLEY, Associate Justice.

This is an appeal from an order of dismissal under Code of Civil Procedure section 581, subdivision (3) as to defendants City of Whittier and Whittier Uptown Parking District No. 2. The order of dismissal was based upon sustaining of demurrers to each of plaintiff's six causes of action as set forth in its first amended complaint upon representation of counsel for plaintiff that no facts could be added if leave to amend were granted.

On February 26, 1963, the City of Whittier adopted Ordinance No. 1598, which is 'The Whittier Improvement Procedure Code.' Ordinance No. 1598 is entitled as follows:

'An ordinance of the City of Whittier providing a procedure in relation to the acquisition, construction or maintenance of local improvements and the levy of assessments and the issuance of assessment bonds therefor.'

The ordinance, adopted under the powers of the city as a charter city, is a mosaic, composed of portions of the Street Opening Act of 1903, the Improvement Act of 1911 and the Municipal Improvement Act of 1913, together with some provisions original with the ordinance.

On May 11, 1965, defendant city adopted a Resolution of Intention, No. 3780, to form a special improvement district pursuant to Chapter V, Articles 1, 4 and 5 of Ordinance No. 1598 and to issue bonds and to levy an ad valorem assessment pursuant to Article 6 of Chapter VI of that ordinance. Section 240 of that ordinance (which is one of the sections included in Article 4 of Chapter V) provides as follows:

'When proceedings are taken pursuant to this article the Municipal Improvement Act of 1913 shall apply.'

There is no comparable section in Article 5. As we explain below, section 240 cannot be taken literally, since Ordinance 1598 contains provisions, herein important, which provide independent procedures for some matters covered by the 1913 Act. The proposed district was called 'Whittier Uptown Parking District No. 2.' ¹

On June 11, 1965, plaintiff filed a written protest concerning the inclusion of its property in the assessment district. On June 15, 1965, the city council overruled all protests and, on June 22, 1965, adopted Resolution No. 3799 entitled 'A resolution determining convenience and necessity, adopting engineer's report, ordering acquisitions and improvements, and declaring formation of Whittier Uptown Parking District No. 2.'

Article 6 of Chapter VI of Ordinance No. 1598, under which it was proposed to issue the bonds incorporates (by reference in section 392) the procedural provisions of Article 5 of Chapter VI, one of which provisions is contained in section 364. That section reads as follows:

'If proceedings are had pursuant to Article 4 of Chapter V of this Ordinance, then in the resolution ordering the acquisitions or improvements the Council shall determine the estimated cost of said acquisitions and improvements and of the expenses incidental thereto, and the total estimated amount of the bonds to be issued. The bonds shall be issued and sold and the proceeds shall be used to pay the costs and expenses of the project.'

In spite of that requirement, Resolution No. 3799 contains no estimate of the cost or expenses, nor any estimate of the amount of the bonds to be issued, except as the resolution adopts by reference (in paragraph 7 thereof) the engineer's estimate of costs and expenses. The amount of that estimate nowhere appears in Resolution No. 3799, and that resolution gives no hint at all of the estimated amount of bonds to be issued.

Thereafter, on January 25, 1966, the council adopted Resolution No. 3858, entitled 'A resolution providing for the issuance of bonds and directing levy of ad valorem assessments to pay the principal and interest thereof.' Therein, for the first time, there appears a statement as to the total amount of bonds to be issued ($850,000), and a direction as to the form and other details of a portion (600,000) therein ordered to be sold. This resolution is apparently an attempt to comply with the provisions of section 369 of Ordinance No. 1598, which section is also applicable to the type of bond herein involved.

Plaintiff's original complaint was filed on February 23, 1966, which was eight months after the adoption of Resolution No. 3799 but less than thirty days after the adoption of Resolution 3858. That complaint was in three counts. A demurrer to it was sustained with leave to amend. Plaintiff then filed its amended complaint. A demurrer to that pleading was also sustained and, plaintiff electing not to amend further, a judgment of dismissal was entered. Plaintiff has appealed.

The order of dismissal was based on the sustaining of demurrers to each of plaintiff's six causes of action as set forth in the amended complaint. The demurrer was sustained on the ground that plaintiff's action was barred by the statute of limitations contained in section 10400 of the Streets and Highways Code and section 168 of the Whittier Improvement Procedure Code (Ordinance No. 1598). The demurrer was also sustained on the ground that plaintiff failed to offer evidence in support of its written protest to the formation of the parking district.

The issues on appeal are whether plaintiff's complaint states a cause of action and whether or not the complaint is barred by the appliciable statute of limitations. We conclude that the action was barred by the statute of limitations. As a result, we need not determine whether or not it stated a cause of action had it been timely filed.

I

The briefs discuss, at length, which of several possible statutes of limitation is applicable to plaintiff's complaint. For reasons set forth below, we conclude that neither section 329.5 of the Code of Civil Procedure nor section 10400 of the Streets and Highways Code is applicable to this action. We further conclude that, as between sections 168 and 169 of Ordinance No. 1598, it is section 168 which applies and that that section bars the present action.

II

As above indicated, we reject the application of section 329.5 of the Code of Civil Procedure. That section reads as follows:

'The validity of an assessment or supplemental assessment against real property for public improvements, the proceedings for which are prescribed by the legislative body of any chartered city, shall not be contested in any action or proceeding unless the action or proceeding is commenced within 30 days after the assessment is levied, or such longer period as the legislative body may provide. Any appeal from a final judgment in such an action or proceeding shall be perfected within 30 days after the entry of judgment.'

But that section applies only where the municipality has not provided its own statute of limitations or where (as was not the case here) the municipality attempts to give less than 30 days for a taxpayer's suit. Since we have, in the case at bench, a specific provision in the municipal procedural ordinance (Ordinance No. 1598) which is within the legislatively permitted scope, it is to that specific provision that we look. (Brill v. County of Los Angeles (1940) 16 Cal.2d 726, 108 P.2d 443; Estate of Jacobs (1950) 100 Cal.App.2d 452, 223 P.2d 898.)

Likewise, we reject the application of section 10400 of the Streets and Highways Code. That section reads as follows:

'LEVYING AND COLLECTING THE ASSESSMENT

' § 10400. Contest of validity; limitation of actions; time for appeal. The validity of an assessment or supplementary assessment Levied under this division (division 12 of the Streets and Highways Code known as the Municipal Improvement Act of 1913) shall not be contested in any action or proceeding unless the action or proceeding is commenced within 30 days after the assessment is levied. Any appeal from a final judgment in such an action or proceeding shall be perfected within 30 days after entry of judgment.' (Emphasis added.)

We think that this statute is inapplicable here for the same reason as section 329.5 of the Code of Civil Procedure is inapplicable. Although, as we have pointed out above, this proceeding was begun under a portion of the Whittier Code that provides, in section 240, 'When proceedings are taken pursuant to this article (Article 4 of Chapter V) the Municipal Improvement Act of 1913 shall apply,' we think that that incorporation by reference incorporates only those procedural matters that are not covered specifically by the Whittier ordinance. As we have seen, Ordinance No. 1598 contains its own statutes of limitations. It is to those that we look.

III

As between the two limitation...