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Galbiso v. Orosi Public Utility District

March 3, 2010

MARY JANE GALBISO, PLAINTIFF AND APPELLANT,
v.
OROSI PUBLIC UTILITY DISTRICT DEFENDANT AND RESPONDENT



APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. (Super. Ct. No. VCU228671).

The opinion of the court was delivered by: Kane, J.

CERTIFIED FOR PUBLICATION

OPINION

Plaintiff Mary Jane Galbiso (Galbiso) appeals from a judgment entered in favor of defendant Orosi Public Utility District (OPUD) after the trial court sustained OPUD's demurrer to Galbiso's complaint without leave to amend. Galbiso's complaint sought a preliminary injunction to prevent OPUD from conducting a "tax sale" of her two parcels for the collection of sewer assessments, and a writ of mandate to correct OPUD's alleged abuse of discretion in refusing to grant her request for a reassessment. The trial court concluded, among other things, that the complaint failed to allege a sufficient legal or factual basis to enjoin the tax sale or require a reassessment of Galbiso's parcels. On appeal, Galbiso contends her complaint adequately alleged one or more of her claims for relief and, in any event, leave to amend should have been allowed. We disagree and affirm the judgment.*fn1

FACTS AND PROCEDURAL HISTORY

This case is the latest in a series of legal battles between OPUD and Galbiso concerning the sewer assessments imposed by OPUD against Galbiso's real property and the efforts undertaken by OPUD to enforce those assessments. As background to the present case, we begin with a brief synopsis of the parties' previous appeals in this court.

A. The Two Prior Appeals

1. First Appeal -- The Foreclosure Action

In Orosi Public Utility Dist. v. Galbiso (Nov. 9, 2007, F049450) [nonpub. opn.; 2007 Cal.App. Unpub. Lexis 9109] (OPUD v. Galbiso), OPUD initiated a judicial foreclosure action to recover unpaid sewer assessments owed by Galbiso. At the time of trial, the case was expanded to include a number of assessment-related issues submitted by the parties for declaratory relief. OPUD prevailed in the trial court, Galbiso appealed, and we reversed the judgment in part.

As outlined in our nonpublished opinion in OPUD v. Galbiso, supra, F049450, the underlying facts of that case included the following: In 1995, OPUD formed a special assessment district, known as the Orosi 1995 Sewer Improvement District No. 1, to make improvements to its sewer system to be paid for by special assessments against property owners whose parcels would benefit from the improvements. A notice of assessment was recorded against the affected parcels in July of 2001. Galbiso was the owner of two parcels of undeveloped land, referred to as Parcels 56 and 57, located within the geographic boundaries of OPUD. She purchased Parcel 56 in 2001 and Parcel 57 in 2003. Galbiso first learned of the special assessments shortly before completing her purchase of Parcel 56 in 2001. She proceeded with the purchase, despite her awareness of the assessment, in hopes that the assessment issue would be worked out in a satisfactory way between her and the OPUD Board. (OPUD v. Galbiso, supra, F049450, at pp. *3-13.)

Galbiso believed the special assessments imposed against her properties were unreasonable, unfair and/or unenforceable because (1) they were based on a previous owner's abandoned proposal to build a multi-unit residential complex needing 88 sewer hookups, (2) Galbiso would use Parcels 56 and 57 for organic farming and she needed only one or two sewer hookups, not 88, and (3) although OPUD charged Galbiso for 88 sewer hookups, it could not actually provide sewer treatment capacity for that many residential units. Although efforts were made by both sides to resolve the matter through a deferral agreement or other compromise, OPUD ultimately took the position that Galbiso's land received the benefit of the sewer improvements, she knew about the assessments when she purchased the parcels, and she must pay the sums assessed. (OPUD v. Galbiso, supra, F049450, at pp. *10-12, 37-45.)

In 2003, OPUD filed its complaint to judicially foreclose and sell Parcels 56 and 57 for nonpayment of special sewer assessments, which case was numbered as Tulare County Superior Court case No. 03-207142. The remedy of judicial foreclosure was sought by OPUD in its complaint pursuant to section 8830 of the Streets and Highways Code,*fn2 which section is a part of the Improvement Bond Act of 1915 (§ 8500 et seq.). The assessment had been initiated under a distinct statutory scheme known as the Municipal Improvement Act of 1913 (§ 10000 et seq.; hereafter the 1913 Act). At the time of trial, both parties requested that the complaint be deemed to state a claim for declaratory relief on certain issues related to the assessments. The trial court granted that request. After completion of the trial, the trial court resolved all of the submitted issues in OPUD's favor, including that Galbiso's property received a proportional benefit from the sewer improvements; that no reassessment by OPUD was required based on changed circumstances; and that OPUD was entitled to bring an action to foreclose under section 8830. A judgment granting foreclosure and determining the submitted issues was entered, and Galbiso appealed. (OPUD v. Galbiso, supra, F049450, at pp. *12-13.)

On appeal from the judgment, we concluded that the trial court had no authority to grant judicial foreclosure under section 8830, since that section was inapplicable to the assessment proceedings involved in that case. In particular, we found that section 8830 did not apply because no bond proceedings were initiated under the Improvement Bond Act of 1915, of which section 8830 was a part. (OPUD v. Galbiso, supra, F049450, at pp. *14-29.) Accordingly, the portion of the judgment that had granted judicial foreclosure was reversed. In so holding, we noted that the remedy authorized by the applicable statutory scheme (i.e., the 1913 Act) was a tax sale, not judicial foreclosure. (OPUD v. Galbiso, supra, F049450, at p. *29.) We affirmed the balance of the judgment, including the trial court's determination of issues submitted for declaratory relief. (Id. at pp. *30-57.) In regard to those issues, we explained, among other things, that Galbiso's challenge to the validity of the original assessment was barred by the statute of limitations, and that OPUD was not required to reassess her property or take other corrective action based on changed circumstances or equitable considerations, although OPUD had discretion to do so. (Id. at pp. *36- 50 & fn. 17.)

We commented in passing that (1) OPUD could have reassessed Galbiso's parcels (i.e., it was not barred from doing so, as it previously believed), and (2) OPUD "presumably" had discretion to proceed with a tax sale under the applicable assessment statute. (OPUD v. Galbiso, supra, F049450, at pp. *29, *49-50 & fn. 17.)

2. Second Appeal -- Action to Enforce Brown Act and Public Records Act

The second appeal arising out of the parties' ongoing controversy was Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063. In that case, which was commenced in Tulare County Superior Court as case No. 217318, Galbiso brought suit to prevent OPUD from proceeding with a 2006 tax sale of Parcels 56 and 57. She alleged, among other things, that OPUD's Board of Directors' resolution approving the tax sale was invalid under the Ralph M. Brown Act (Gov. Code, § 54950 et seq.; hereafter the Brown Act), and that OPUD had also violated the California Public Records Act (Gov. Code, § 6250 et seq.; hereafter the Public Records Act). Galbiso additionally sought to quiet title or to obtain declaratory relief relating to Parcels 56 and 57 on the ground that the assessment, or the lien securing the assessment, was invalid.

Prior to trial, the parties settled. OPUD agreed that it would not take any action to commence or to proceed with a tax sale of Galbiso's parcels until after the conclusion of the appeal in the foreclosure action (i.e., the first appeal -- see above), and that it (OPUD) would refrain from specified conduct that Galbiso's complaint alleged was in violation of the Brown Act and the Public Records Act. In exchange, Galbiso agreed to dismiss her lawsuit with prejudice. As part of the settlement, the parties reserved the issue of statutory attorney fees under the Brown Act and the Public Records Act for determination by the trial court in a subsequent hearing. Thereafter, when the trial court denied her motion for recovery of statutory attorney fees, Galbiso appealed. (Galbiso v. Orosi Public Utility Dist., supra, 167 Cal.App.4th at pp. 1068-1075.) In that published opinion, we reversed the trial court's order denying attorney fees under the Brown Act and the Public Records Act and remanded the case to the trial court. (Galbiso v. Orosi Public Utility Dist., supra, at p. 1090.)

B. The Present Case

In November of 2007, in a somewhat remarkable turn of events, Galbiso was elected to the OPUD Board of Directors. Her election, however, did not awaken a spirit of greater cooperation or compromise between the parties. If anything, as reflected by subsequent developments, the parties' positions regarding the assessments on Parcels 56 and 57 had become even more entrenched.

On November 9, 2007, our opinion in the first appeal, OPUD v. Galbiso, supra, F049450, was issued. As discussed above, in that opinion we reversed the portion of the judgment that granted judicial foreclosure. We also briefly noted, in passing, that OPUD could have reassessed Galbiso's parcels (i.e., a legal basis existed for doing so), and that OPUD "presumably" had discretion to proceed with a tax sale under the applicable assessment statute. (Id. at pp. *29, *49-50 & fn. 17.) In the months that followed our opinion in OPUD v. Galbiso, Galbiso offered a particular formula for reassessment of her parcels in connection with a global settlement proposal to OPUD, while OPUD, after considering and rejecting Galbiso's proposal, pursued a tax sale. Specifically, in May of 2008, Galbiso made a written request to OPUD that it reassess Parcels 56 and 57 according to their agricultural use. That request was summarily denied and, instead of approving the proposed reassessment, a majority of OPUD's Board of Directors voted on May 13, 2008 (in Resolution No. 2008-02) to hold a tax sale of Galbiso's parcels to collect the delinquent assessments. The tax sale was noticed for July 1, 2008.

Galbiso filed her complaint in the present case on June 27, 2008. The complaint, filed as Tulare County Superior Court case No. VCU228671, included several causes of action for injunctive relief to prevent the tax sale from going forward. On June 30, 2008, the trial court issued a temporary restraining order to maintain the status quo until a hearing could be held on Galbiso's request for a preliminary injunction. On August 15, 2008, the trial court denied the requested injunctive relief. Thus, OPUD was allowed to proceed with the tax sale on August 18, 2008, as scheduled. Galbiso paid the delinquent assessments due on one parcel before the tax sale, and she paid the delinquent assessments due on the other parcel shortly after the tax sale. She therefore was able to keep or redeem both parcels.

OPUD then filed a general demurrer to Galbiso's complaint. The complaint had alleged the following purported claims for relief: (1) Enjoin Tax Sale (the statutory time limit for a tax sale allegedly expired); (2) Enjoin Tax Sale (OPUD allegedly made a binding election to pursue other remedies); (3) Nullification of Tax Sale (OPUD allegedly did not comply with Brown Act); (4) Declaratory Relief (OPUD's Brown Act violation allegedly necessitated declaratory relief); (5) Petition for Writ of Mandate (OPUD's decision to conduct tax sale beyond the statutory time limit was allegedly an abuse of discretion); and (6) Petition for Writ of Mandate (OPUD's rejection of Galbiso's request for reassessment was allegedly an abuse of discretion). On August 28, 2008, the trial court sustained OPUD's demurrer to the entire complaint without leave to amend. A judgment of dismissal was entered on September 12, 2008. Galbiso's timely notice of appeal followed.

DISCUSSION

I. Standard of ...


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