Opinion
Plaintiffs James W. McMaster and Alice M. McMaster appeal from a judgment of dismissal entered after general demurrers of City of Santa Rosa (City) and Francis Realty, Inc. (respondent) to the second amended complaint were sustained and plaintiffs failed to further amend.
The crucial and ultimate issue presented in this appeal involves the concept of procedural due process in the context of the sale of tax delinquent property.
Since appellants failed to pay their property tаxes for the 1962-1963 fiscal year, ,the City, on July 5, 1968, conducted a tax sale wherein the property of appellants was sold to respondent Francis Realty, Inc. Subsequent to the sale the property was conveyed to respondent by a deed executed by the tax collector of the City.
Although it is clear from their second amended complaint that appellants’ property was listed on the 1967-1968 published notice of sale, they allege that both the July 5, 1968 sale and the subsequent deed to respondent are invalid because the City violated seven provisions of the City of Santa Rosa Code (“Ordinance”) which regulates the procedure with respect to delinquent taxes and tax sale of property.
Observing the rule that a general demurrer admits the truth of all the material factual allegations in the complaint
(Alcorn
v.
Anbro Engineering, Inc.
(1970)
The ultimate legal question, therefore, is whether the alleged defects or irregularities are of such nature as to deprive the City of jurisdiction tо consummate a valid tax sale of appellants’ property.
Resolution of this issue, in turn, involves a determination of the effect *601 of the state curative statute 1 and/or the built-in curative provision of the City’s Ordinance itself. 2
Appellants argue: (1) that the state curative statute is. inapplicаble to the present case; (2) that the built-in curative provision of the Ordinance —at best—creates only prima facie evidence of the regularity of the proceedings; and (3) that the curative provisions cannot cure the charged violations bеcause they are jurisdictional.
Appellants’ first argument is obviously mistaken. Section 1 of the curative state statute validating certain acts of taxing agencies and revenue districts explicitly provides that ‘“taxing agency’ includes the state, county and
city.”
(Italics added.) At the same time section 53 of the Charter of the City provides that all general laws of the state applicable to municipal corporations are applicable to the City unless they are in conflict with the charter, ordinances or resolutions of the City. Appellants fail to allege or show any such conflict. As far as the curative provision of the Ordinance is concerned, we note that although section 8.180 is couched in evidentiary terms, it has the same effect as a curative statute
(Hall
v.
Chamberlain
(1948)
Appellants’ third contention, in essence, is that the irregularities in the tax sale procedure were violative of the adequate notice requirement, inherent in due process of law; consequently, appellants claim they were jurisdictional violations whiсh could not be remedied by curative legislation. We disagree.
It is, of course, elementary that, although it is a matter of common
*602
knowledge that failure to pay property taxes can result in penalties, including loss of the property, the property mаy not be taken from its' owner without due process of law. The fundamental requisite of due process is
notice,
reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and to affоrd them opportunity to be heard
(Mullane
v.
Central Hanover Tr. Co.
(1950)
The cases make it explicit that the notice required by statute in tax sale proceedings is designed to afford the property owner protection and enable him to pay taxes
before the title passes from him (Sawyer
v.
Berkeley Securities Co.
(1929)
In the instant case, as we have pointed out, appellants were delinquent in their taxes for the 1962-1963 fiscal year. When this occurred certain provisions of the City’s Ordinance came into' play. 3 Thus, section 8.153 of the Ordinance provides for the publication of the delinquent list on or before June 8 each year. Section 8.154 provides that “With the delinquent list the tax collector shall publish a notice specifying: (a) that unless the taxes, penalties and costs are paid the real property on which they are a lien will be sold; (b) the time and place at which the property will be sold to the city by operation of law. (Ord. 554, Sec. 902).”
' Section 8.162 prоvides that “Not less than twenty-one nor more than twenty-eight days after the first publication of the delinquent list, at the *603 time fixed in the publication, the real property on which all taxes, penalties and costs have not been paid, except tax sold property and possessory interests, shall by operation of law and the declaration of the tax collector be sold to the city. The sale shall be in the tax collector’s office. (Ord. 554, Sec. 936)”
As a result, therefore, it must be concluded: (1) that prior to June 8, 1963 the City tax сollector published a delinquent list which included appellants’ property and a notice that unless the taxes, penalties and costs were paid the real property on which they were a lien would be sold, and the time and place at which the property would be sold to the City by operation of law; and (2) that not later than 28 days after the first publication of the delinquent list appellants’ property was sold by operation of law in the tax collector’s office to the City.
Since appellants dо not allege any failure on the part of the City to comply with any of these sections, it must be conclusively presumed that the City did, in fact, perform the duties thereby imposed and that appellants received the only notice to which they were entitled by law.
Nоtwithstanding receipt of this notice, appellants now point to claimed “jurisdictional” irregularities occurring thereafter which they contend vitiate the sale to respondent.
The cases have not established a clear-cut definition of what does or does not constitute a “jurisdictional defect.” Perhaps the most definitive expression is that contained in
Miller
v.
McKenna
(1944)
The test seems to be that if a particular requisite of the ordinance could have been omitted by the legislative body in the first place, then a failure to comply with it is not jurisdictional
(Gray
v.
Jones
(1950)
We, therefore, turn to the alleged violations and test them in the light of these established principles.
*604 A. Tax Roll and Tax Bill Defects.
Appellants allege that the assessor failed (1) to enter on the tax roll the fact that the property had been sold and the date of sale, and (2) failed to indicate on the tax bills subsequent to 1963-1964 that appellants’ property had been sold and the date of sale.
These precise claims were raised and rejected by the court in
Bank of Lemoore
v.
Fulgham
(1907)
B. Notice of Sale Defects.
1. Contents of the Notice.
Appellants set forth four separate defects as to the contents of the published notice of sale in 1968. Thus, they assert: (1) failure to specify the place of sale; (2) failure to state when appellants’ property was to be sold; (3) failure to set forth the minimum amount of acceрtable bid; and (4) the absence of a date on the notice of sale.
None of these defects is of jurisdictional stature for it has long been established that the form and content of tax delinquency notices are “details which are subject to legislative оr administrative discretion, and defects therein are related to the mode of the exercise of the power, which being merely directory, may be made effective by a curative act. [Citation.]”
(City of Compton
v.
Boland
(1945)
2. Failure to Mail Notice.
In addition to the required publication of notice of sаle, the City Ordinance provides in section 8.160 that “Within five days after publication of the notice of sale of tax sold property and at least twenty-one days before the date of sale, when tax sold property is to be sold at public auction, the tax collector shall mail to the last assessee either a copy of the publication or a notice of sale.”
It is alleged that the City failed to mail such notice to' appellants. It is this omission to which appellants address their major due procеss, argument. Although this precise defect was once determined by the Court of Appeal to be nonjurisdictional, that decision was supplanted by the opinion of the Supreme Court, after it had granted a hearing
(Tannhauser
v.
Adams
(1947)
We share the same view, however, as expressed by the trial judge in his scholarly memorandum opinion that the reasoning of the Court of Appeal in
Tannhauser
was sound and remains sound; namely, that publication of notice is all of the “due process” notice to- which the delinquent taxpayer is entitled, and that “As far as the mailing of additional notices оf sale prior to the sales to and from the State, or the mailing of any additional notices at all is concerned, such notices could have been done away with or not required by the legislature in the first instance without doing violence to due process.” (
Having satisfied ourselves that appellants were not deprived of due process, we call to mind and repeat the very salutary public policy which is the genesis of validating or curative legislation: “The purpose of the validating statute is to rehabilitate tax-deeded property and procure its return to the tax rolls. The accomplishment of the purpose is conducive to equality in assessments for the support of government and therefore to stability in government. It is a matter of public importancе, therefore, that the validating act be applied to- effectuate the legislative purpose so long as constitutional mandates are observed.”
(City of Compton
v.
Boland, supra,
The judgment is affirmed.
Taylor, P. J., and Rouse, J., concurred.
Notes
The curative state statute (Stats. 1968, Reg. Sess., ch. 480) provides, inter alia, as follows:
“Section 1. As used in this aсt ‘taxing agency’ includes the state, county, and city ....
“Sec. 3. Every act and proceeding heretofore taken by any taxing agency ... or the officers thereof relative ... to tax sales or certificates of tax sales, tax deeds or other conveyances, are hereby confirmed, validated and declared legally effective.
“Sec. 4. (a) This act is limited to the correction of defects, irregularities and ministerial errors which the Legislature originally could have omitted from the statutory requirements of law undеr which the acts hereby confirmed, validated and declared legally effective were taken.
“(b) This act is limited to the validation of acts and proceedings to the extent to which the same can be effectuated under the State and Federal Constitutions."
Section 8.180 reads as follows: “The deed, duly acknowledged or proved, is conclusive evidence, except against actual fraud, of the regularity of all other proceedings, from the assessment of the assessor to the execution of the deed, both inclusive. (Ord. 554, Sec. 1000)”
Although these precise sections were not referred to by the parties in their briefs, we take judicial notice of them. (Evid. Code, § 452, subd. (b).)