APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Reversed with directions. (Super. Ct. No. 37-2007-000764040-CU-EI-SC).
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant Community Youth Athletic Center, a nonprofit entity (plaintiff), filed this "reverse validation" action under Code of Civil Procedure*fn1 section 863 to challenge the validity of an ordinance that amends a 1995 redevelopment plan enacted by the City of National City and its Community Development Commission (CDC; together, the City). (Health & Saf. Code, § 33000 et seq., the Community Redevelopment Law.) The challenged City ordinance, No. 2007-2295 (the ordinance), extends the time period for treating approximately 700 parcels of real property, including that owned by plaintiff, as blighted and allowing eminent domain takings of them. Plaintiff's complaint alleges the procedures followed by the City in this respect are not supported by the law or the facts, and seeks declaratory relief, injunctive relief and damages, along with attorney fees and costs, under several statutory and constitutional theories. (42 U.S.C. § 1983; Cal. Const., art. I, § 7(a) (Takings clause); Gov. Code, § 6258 (Public Records Act).)
Pursuant to the statutory scheme for validation and reverse validation proceedings (§ 860 et seq., the "validation law"), plaintiff obtained a court order through noticed ex parte proceedings and then published the summons, which was directed toward the City and to "All Persons Interested in the Matter of the Amendment to National City's Redevelopment Plan as Adopted by [the ordinance]." Plaintiff encountered difficulties with the publication process in English and Spanish newspapers, when one of the newspapers unexpectedly changed its publication schedule, and ultimately, the summons that was published after some delay retained an incorrect date for responses by interested parties (i.e., the published summons contained the date for response as originally anticipated, thus advancing the allowable response period following publication, from Monday, November 19 to Friday, November 16, 2007). (§§ 861, 861.1, 863.)
Based on this defect, the City sought judgment on the pleadings and demurred to the complaint, arguing that the court lacked jurisdiction to proceed, and therefore the ordinance should remain in effect. In opposition, plaintiff claimed there had been substantial compliance with the statutory procedures, or in the alternative, it had shown good cause for its noncompliance, because of clerical or attorney error, and republication should be allowed. (§ 863.) Plaintiff also argued its constitutional and statutory theories were independent of the reverse validation claims and could not properly be disposed of in this manner.
The trial court granted the motion for judgment on the pleadings, concluding that all the claims pled related to the validity of the ordinance, were therefore all subject to the service requirements of the validation law, and no good cause for relief from noncompliance had been shown. Plaintiff appeals, arguing the court erred as a matter of law and abused its discretion by failing to recognize that good cause had been shown for relief, or in the alternative, that substantial compliance with statutory requirements of the validation law had been achieved. Plaintiff contends it has a right to pursue all its theories, including its constitutional theories and the cause of action under the Public Records Act, exclusive of the validation law. (In a separate petition for writ of mandate, Community Youth Athletic Center v. Superior Court of San Diego (D052630, filed March 6, 2008), plaintiff seeks to revive the Public Records Act claim, and it is not now before us; Gov. Code, § 6250 et seq.)
The standards for evaluating compliance with the publication requirements of the validation law include statutory interpretation rules and discretionary calls, as recognized in County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450 (Riverside). In that case, this court declined to reach the issue of whether substantial compliance or strict compliance standards for publication governed. Likewise, in Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1034-1035 (Katz), the court found it unnecessary to resolve that fine point of law. As we will explain, we take the same approach, declining to choose between strict and substantial compliance standards, since we are unable to find there was substantial compliance with the validation law sufficient to confer jurisdiction on the court to resolve this in rem proceeding.
Nevertheless, the governing standards require us to resolve this matter in light of the good cause provision of section 863. (City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 345-348 (Ontario).) On the undisputed facts, it is evident that the trial court used an incorrect legal standard and abused its discretion in failing to find there was good cause for relief from noncompliance with the publication requirements, and the court should have allowed leave to republish the summons. We reverse the judgment on the pleadings with directions accordingly.
BACKGROUND FACTS AND PROCEDURE
A. Ordinance and Complaint
In 1995, the City and its community development commission reenacted a redevelopment plan that authorized the use of eminent domain in the area where plaintiff's property is located, based on designations of blight. Plaintiff operates a boxing gym and athletic facility that serves at-risk youth as a community center. The City amended the plan in 2007 by holding public hearings and preparing reports under the provisions of the Community Redevelopment Law. (Health & Saf. Code, § 33000 et seq.) The City has preliminarily approved the construction of condominium developments in the blighted area, and the ordinance extended the time for eminent domain proceedings to be conducted there.
In September 2007, plaintiff brought this action seeking a judicial declaration that the ordinance was invalid on a number of specific grounds, for noncompliance with the procedures of the Community Redevelopment Law. In particular, plaintiff's first, fifth, and sixth causes of action allege that the City has failed to release its reports on the matter in a timely fashion, thus preventing the public from preparing any effective objections to the proposed redevelopment plan. The City has also sought to proceed with its plans without establishing and providing to the public the required substantial evidence of existing blight and alleviation of blight through the proposed redevelopment.
In its causes of action alleging constitutional violations, plaintiff contends it is being deprived of its property without due process of law, and the eminent domain law is being used for constitutionally illegitimate purposes, such as economic development.
Plaintiff contends these constitutional claims are independent of the statutory causes of action. The prayer requests a declaration that the City violated plaintiff's due process rights to a meaningful opportunity to be heard, an invalidation of the ordinance, and other relief.
B. Publication and Motion for Judgment on the Pleadings
After filing the complaint, plaintiff sought a court order for service by publication on the City entities as defendants, and "All Persons Interested in the Matter of the Amendment of [the ordinance] . . . ." Plaintiff notified the City of ex parte proceedings to obtain the publication order, and obtained an order signed by the presiding judge, when the trial judge was absent. Plaintiff then obtained a revised order after further delay was caused by the newspaper's change in publication schedule, and by the fires in San Diego in the fall of 2007, which closed the courthouses for a week in October.*fn2
In its ruling on the motion, the trial court outlined the sequence of events about the difficulties that followed: "[Pl. atty.]'s declaration relates how after the order for publication was signed he learned the chosen publication dates would not work because the newspapers no longer published summonses on Tuesdays. He spoke with opposing counsel about the need for a revised order with new publication dates and opposing counsel agreed to the proposed changes. Although [pl. atty.] states he and [city counsel] specifically discussed the November 16 date and agreed that the date did not need to change, [city counsel] has no recollection of discussing or consenting to the court acquiring jurisdiction on November 16. [Pl. atty.] states due to the confusion surrounding the last minute changes to the publication order he 'failed to recognize that the response date listed in the summonses was in error' and 'unwittingly failed to revise the response date in the revised order and in the summonses.' "
Thus, it is undisputed here that under the statutory procedures for publishing the summons, interested persons were told to file a responsive pleading by November 16, 2007 (a Friday), when the summons should have said November 19, 2007 (the following Monday). (Gov. Code, § 6063 [requiring 21 days for completion of publication, which occurred November 7, 2007]; §§ 12a ...