Card v. Community Redevelopment Agency

• Decision Date: 27 August 1976
• Citation: 61 Cal.App.3d 570,131 Cal.Rptr. 153
• Court: California Court of Appeals Court of Appeals
• Parties: David CARD et al., Plaintiffs and Respondents, v. COMMUNITY REDEVELOPMENT AGENCY OF SOUTH PASADENA, Defendant and Appellant. Civ. 47354.

Page 153

131 Cal.Rptr. 153

61 Cal.App.3d 570

David CARD et al., Plaintiffs and Respondents, v. COMMUNITY REDEVELOPMENT AGENCY OF SOUTH PASADENA, Defendant and Appellant.

Civ. 47354.

Court of Appeal, Second District, Division 3, California.

Aug. 27, 1976.

As Modified Sept. 22, 1976.

Graham A. Ritchie, Los Angeles, for appellant

Telanoff, Bobrowsky, Wallin & Dilkes, Peter L. Wallin and C. Edward Dilkes, Los Angeles, for plaintiffs and respondents.

COBEY, Acting Presiding Justice.

Defendant, the Community Redevelopment Agency of the City of South Pasadena (hereafter Agency), appeals from a judgment that, among other things, declares invalid the City's ordinance purporting to amend an existing redevelopment plan for the Monterey Hills area in the City and awarding to plaintiffs' attorneys legal fees in the amount of $20,400.

The essential basis for the judgment of invalidity is that the City actually adopted a new redevelopment plan under the pretext of amending an existing one. ¹

The Agency principally contends that: (1) the action should have been dismissed for failure of the plaintiffs to comply fully with the procedure required in validation actions and because all irregularities in the redevelopment proceedings under review were cured by the Third Validating Act of 1973; (2) the trial court lacked the requisite constitutional basis for invalidation; (3) the award of attorneys' fees was improper.

Background ²

The redevelopment plan for Monterey Hills Redevelopment Project No. 1, as adopted in 1959 by the City, was primarily a plan for the redevelopment of vacant land to upper income residential uses. At the time of the adoption of the challenged ordinance (No. 1644) on December 19, 1973, purporting to amend this plan, the Agency The downtown business area constitutes one-third of the added area. The remaining two-thirds lies immediately west of the downtown area and east and northeast of the original project area. It is composed of older single family homes with occasional multi-family residential and commercial uses. It is bifurcated north-south by the proposed Long Beach Freeway. It is contiguous to but physically separated from the original project area by some steep hills that prevent vehicular and other traffic across them.

                had virtually completed the original plan's implementation. 3  The purported amendments to the plan expanded for redevelopment purposes the boundaries of the original project area so as to include the City's downtown business area and an older residential area impacted by the proposed Long Beach Freeway and lying between the downtown business area and the boundaries of the original project
                

The proposed expansion in project area would not affect the original project area uniquely to that area as compared with the remainder of the City. The purported amendments actually constitute an entirely new and separate redevelopment plan and project of substantial magnitude, wholly different in concept, goals and territory from that of the original plan and project. The amended redevelopment plan represents an attempt through the use of the Community Redevelopment Law to increase commercial activity within the downtown business area and to cope with anticipated problems that the existence of the proposed freeway creates within the added residential area. ⁴

The Action is Properly Before Us

As we have indicated, the Agency contends that this action should have been dismissed pursuant to Health and Safety Code sections 33500, 33501 and Code of Civil Procedure section 869, and that the trial court abused its discretion in permitting plaintiffs' tardy compliance with the just-mentioned statutes. ⁵

Plaintiffs filed this action originally as an In personam taxpayers' suit pursuant to Code of Civil Procedure section 526a and in their complaint alleged that they were citizens, residents and taxpayers of the City and owners of real property assessed for taxes within the last year by the County of Los Angeles. The defendants originally named included the Agency, the City, the City Council and the members thereof, the Los Angeles County Tax Collector-Treasurer and the Los Angeles County Auditor. The last two mentioned defendants were included because plaintiffs sought to enjoin their paying over to the Agency certain tax increment revenues. ⁶

As previously noted, the challenged ordinance was adopted on December 19, 1973 and plaintiffs' action was filed on February 14, 1974. Plaintiffs' action was therefore filed within the sixty-day period specified in the aforementioned Health and Safety Code section 33500. It was not, however, filed in the proper form for a At the time of the making of this motion the sixty-day period within which a copy of the special summons should have been published and proof of publication filed had long expired. But Code of Civil Procedure section 863 expressly provides, in effect, that dismissal shall not occur if 'good cause' for the failure to comply with these publication requirements is shown. This good cause exemption literally applies only to these publication requirements, but in City of Ontario v. Superior Court, 2 Cal.3d 335, 346, 85 Cal.Rptr. 149, 466 P.2d 693, our Supreme Court extended this exemption to a situation like the one before us--that is, where the plaintiff has not simply failed to comply with the publication requirements but has also failed to include in his complaint the allegations required for a validation action. Furthermore in Ontario our Supreme Court suggested that where a plaintiff seeks injunctive and declaratory relief, unavailable in a validation action--something which occurred in that case and also in this case--this circumstance may constitute 'good cause' for non-compliance with the validation procedure. (Id. at 344--346, 85 Cal.Rptr. 146, 466 P.2d 693.) Of course, in the earlier case of Community Redevelopment Agency v. Superior Court, 248 Cal.App.2d 164, 167--168, 170--175, 180, 56 Cal.Rptr. 201, another division of this court held that permitting tardy amendment of the summons and its subsequent publication was beyond the jurisdiction of the trial court in an action challenging, as here, the validity of a redevelopment plan for the reason that no good cause had been shown for plaintiff's failure to comply with the requisite validation procedure. In Ontario, supra, 2 Cal.3d at 346--347, 85 Cal.Rptr. 149, 466 P.2d 693, this case was distinguished on factual grounds inapposite here.

validation action In rem as permitted by the aforementioned Health and Safety Code section 33501 and as required by the aforementioned Code of Civil Procedure section 869. The summons originally issued was not in the special form enjoined and no publication thereof was made. (See Code Civ.Proc., §§ 861, 861.1.) Accordingly the Agency moved on July 8, 1974 (see Code Civ.Proc., § 1005.5) to dismiss the action.

We nevertheless believe that Community Redevelopment Agency is not controlling in this case. There the action involved was simply a validation action and nothing more, while here, as just indicated, plaintiffs sought specific In personam relief as well--namely, declaratory and injunctive relief.

In response to the Agency's aforementioned motion to dismiss the action plaintiffs filed a motion for relief under Code of Civil Procedure section 473 and included in their moving papers the necessary proposed amendments making the action a proper validation action. The trial court granted plaintiffs the relief requested on condition that publication of the summons in proper form be tardily made. In so acting, we think that the trial court did not abuse the discretion granted it by Code of Civil Procedure sections 473 and 863. We concede that neither the prior experience of plaintiffs' counsel in redevelopment litigation cited by him to the trial court nor the delay of over four months on the part of the Agency in raising this objection of improper procedure fully excuses plaintiffs' counsel from his initial noncompliance with a plainly mandated procedure and, further, that if the trial court had ruled otherwise on plaintiffs' motion for relief we would have left its ruling undisturbed. Seeking relief In personam under Code of Civil Procedure section 526a and seeking relief as well In rem pursuant to Code of Civil Procedure section 860, et seq., are not mutually exclusive remedies.

Nonetheless, as our Supreme Court pointed out in Ontario, supra, 2 Cal.3d at 347--348, 85 Cal.Rptr. 149, 466 P.2d 693, the policy enunciated in section 473 to dispose of cases on their merits, where reasonable and just to do so, rather than upon We turn now to the effect of the Third Validating Act of 1973 (Stats.1973, ch. 388, pp. 829, et seq.) upon the validity of the challenged redevelopment proceedings. The Act was adopted on September 5, 1973, and became effective on January 1, 1974. It validates, among other things, all acts and proceedings taken before its effective date by any public body under any law for the annexation or inclusion of territory into such public body. The term 'public body' in the statute expressly includes 'Redevelopment agencies.' Its validation of such acts and proceedings extends, however, only to constitutional limits and furthermore does not reach any such act or proceeding that was under challenge in any legal proceeding pending on January 1, 1974 or thirty days thereafter. As previously noted, the action before us was not filed until February 14, 1974; therefore the filing of this action did not prevent the application of this special validating statute to the redevelopment proceedings before us.

technicalities of procedure and the further policy that appellate courts should not interfere with the exercise of discretion by trial courts, unless that exercise has been Plainly wrong, dictate that we leave undisturbed the trial court's grant of relief to plaintiffs for their procedural default.

The trial court concluded that the ...