Toy v. City and County of S.F.Toy v. City and County of S.F.
Effective January 1, 2022,
Plaintiffs appeal, asserting various reasons why the trial court’s decision was error, most fundamentally that by defending the case the City waived the validation law. Plaintiffs also assert that their action was timely. We hold that the validation law was mandatory and jurisdictional, and that plaintiffs’ failure to comply with that law was fatal to their claim. We thus affirm, with no need to discuss the timeliness issue.1
The Law
Validation Actions
In Davis, supra, 14 Cal.5th 671, 684–685, our Supreme Court described validation actions and their 65-year history:
“An action under the validation statutes permits a public agency to obtain a judgment upholding its handling of an agency matter. (
Code Civ. Proc., § 860 .) We discussed the history of the validation procedure in Bonander v. Town of Tiburon (2009) 46 Cal.4th 646. There we said: ‘By 1961, the California codes contained a patchwork of provisions governing validation proceedings, with each set of provisions dedicated to a different statutory scheme. In that year, the Legislature sought to replace this patchwork with a general validation procedure. [Citation.] This procedure, which the Legislature codified asCode of Civil Procedure sections 860 through 870 , does not, in itself, authorize any validation actions; rather, it establishes a uniform system that other statutory schemes must activate by reference.’ (Bonander, at p. 656.) . . . . [¶] . . . .“Significantly, validation actions are not always brought by the agency involved in the matter.
Code of Civil Procedure section 863 authorizes private parties to bring validation actions, and the private party is often seeking to invalidate the matter in question. . . . Actions brought by private parties under section 863 are sometimes called reverse validation actions.“A validation action is ‘a proceeding in rem’ (
Code Civ. Proc., § 860 ), which means that the judgment binds all persons and entities having an interest in the agency matter in question. . . . Moreover, when the validation statutes apply, they supersede other mechanisms by which an interested private party might seek to challenge the same agency matter. Thispreclusion of alternative remedies is necessary if the validation statutes are to serve their purpose of once and for all determining the validity of the agency matter. Thus, Code of Civil Procedure section 869 provides in relevant part: ‘No contest except by the public agency or its officer or agent of any thing or matter under this chapter shall be made other than within the time and the manner herein specified.’ ”
Section 53759
In 2021, effective January 1, 2022 (Stats. 2021, ch. 216, § 1, Sen. Bill No. 323 (2021–2022 Reg. Sess.)), the Legislature enacted
“(a) Any judicial action or proceeding to attack, review, set aside, void, validate, or annul an ordinance, resolution, or motion adopting a fee or charge for water or sewer service, or modifying or amending an existing fee or charge for water or sewer service, shall be commenced within 120 days of the effective date or of the date of the final passage, adoption, or approval of the ordinance, resolution, or motion, whichever is later.
“(b) Any action under this section by a local agency or interested person shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure, except that the time limits of subdivision (a) shall apply. . . . [¶] . . . . [¶]
“(d) A water or sewer agency required to mail a written notice pursuant to paragraph (1) of subdivision (a) of Section 6 of Article XIII D of the California Constitution shall include in the written notice a statement that there is a 120-day statute of limitations for challenging any new, increased, or extended fee or charge. . . . [¶] . . . [¶]
“(f) This section shall only apply to a fee or charge for water or sewer service that has been adopted, modified, or amended after January 1, 2022.”
The Lawsuits
The Toy Action
On May 17, 2022, plaintiffs Jennifer Toy, Michele Dickstein, and Rose Aquilina filed a class action naming the City as defendant (the Toy Action). The complaint in the Toy action is not in the record, but as described in the briefing the action challenges a water rate resolution adopted by the San Francisco Public Utility Commission (SFPUC) in 2018, alleging that the resolution included costs for hydrant water flows and infrastructure in the water rates in violation of Proposition 219. We know nothing more about any pleadings in the Toy Action, but from the register of actions we know that the case has been vigorously litigated in the several years since its filing, generating a 28-page register of actions as of the filing of the record in this case.
While the Toy Action was pending, on May 23, 2023, the City adopted Resolution 23–103 (the Resolution) increasing water rates for the period July 1, 2023 through June 30, 2026. Before adopting the Resolution, the SFPUC sent notices to all retail water ratepayers providing the information necessary to understand the rates as required by Proposition 218,2 and
The Aquilina Action
On October 3, 2023, Rose Aquilina, Ted Loewenberg, and Mark Roh filed a class action lawsuit that named one defendant, the City (the Aquilina Action). The complaint was styled “Refund, Declaratory Relief, and Equitable Relief, and Petition for Writ of Mandate,” and was based on the claim that the City violated “
On November 17, the City filed its answer to the complaint, which among other things asserted 23 separate defenses, including these four: (1) failure to state a claim; (2) “Plaintiffs’ suit is barred in whole or in part by statutes of limitations”; (3) “Plaintiffs’ suit [was] barred . . . by the limitations period under the Government Claims Act”; and (4) that the action sought remedies not authorized by law.
On June 6, 2024, the trial court certified classes in both cases.
On November 14, the parties filed cross-motions for summary judgment, the City’s motion addressing both the Toy and Aquilina Actions. And on January 13, 2025, the parties filed their opposition briefs.
That same day, the City filed a motion for judgment on the pleadings in the Aquilina Action, where the City asserted that plaintiffs’ complaint was untimely under
Plaintiffs filed opposition to the motion, including a memorandum of points and authorities that had five brief arguments totaling 15 pages. The first argument was that the “City Chose to Litigate Aquilina as an Alternative to Chapter 9 Validation Proceedings,” an argument that did not assert waiver; the second was that the Aquilina Action was timely filed; and the last three, totaling four pages, were these: “Validation Actions Allow for Alternative Forms of Notice to the Public”; “Publication of the Summons was Not Required Because the Gravamen of Plaintiffs’ Complaint was a Claim for a Refund”; and “If a Validation Action was Required, Good Cause Exists for Allowing Plaintiffs to Proceed with Publication Now.”
On June 3, plaintiffs filed a notice of appeal from the order granting judgment on the pleadings, noting that they “specifically appeal from any judgment in Case Number CPF-23-518342 entered subsequent to that order.”
As best we understand, there is no judgment, only the order, which is not appealable. (Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 653 [“[m]any ‘orders’ are not statutorily appealable, and an appeal must therefore be taken from a ‘judgment’ before the trial court’s decision may be reviewed . . . includ[ing] orders granting judgment on the pleadings”].) However, as confirmed in the context of a demurrer, “in the interest of judicial economy, we may construe the order as a final appealable judgment.
DISCUSSION
Standard of Review
As the parties agree, our review is de novo. “A motion for judgment on the pleadings, like a general demurrer, tests the allegations of the complaint . . . supplemented by any matter of which the trial court takes judicial notice, to determine whether plaintiff . . . has stated a cause of action. [Citation.] Because the trial court’s determination is made as a matter of law, we review the ruling de novo, assuming the truth of all material facts properly pled.’ [Citation.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166; Protect Agricultural Land v. Stanislaus County Local Agency Formation Com. (2014) 223 Cal.App.4th 550, 556 (Protect Agricultural) [affirming judgment on the pleadings based on the failure to bring a reverse validation action].)
The Validation Law Applies and Plaintiffs Failed to Comply With It
As quoted above, “when the validation statutes apply, they supersede other mechanisms by which an interested private party might seek to challenge the same agency matter.” (Davis, supra, 14 Cal.5th at p. 685.) Validation law has long referred to
Plaintiffs did not seek approval of the form or method of service of any service of any summons on all interested individuals, and did not provide service by publication of any summons on all interested individuals within the 60 days required by
Katz elaborated on the significance of this: “In a validation action the thing that is the subject of the action is the matter to be validated, i.e., the ordinance, resolution, or other action taken by the public agency. The only way for the court to acquire jurisdiction over the matter is to ensure that notice is given to all interested persons so that the resulting judgment can be conclusive as against them. [Citation.] Notice is provided by publishing the summons in a particular form, within a specified [time], and specifying a date for response. Jurisdiction is not ‘complete’ until ‘after the date specified in the summons.’ ([
Contrary to their position below, where plaintiffs asserted their action was for a refund, and thus not subject to validation law, plaintiffs do not meaningfully argue that the validation law does not apply. Rather, plaintiffs first argue that by “Choosing to Litigate Aquilina as a Government Claims Action, City Waived Application of the Validation Procedures,” that the “City’s litigation conduct demonstrates its election under
We begin by setting forth the law of waiver, law that plaintiffs do not even mention. As we explained in California-American Water Co. v. Marina Coast Water District (2022) 86 Cal.App.5th 1272, 1292 (California-American): “Waiver means ‘the intentional relinquishment or abandonment of a known right.’ (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048, superseded by statute on another ground as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668; see Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) . . . Waiver ‘ “always rests upon intent.” ’ (City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107.) The intention may be express, based on the waiving party’s words, or implied, based on conduct that is ‘ “so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” ’ (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 598; see Waller, supra, 11 Cal.4th at pp. 31, 33–34.)” Waiver is, the Supreme Court has described, “an express relinquishment of a right or privilege” (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1). In short, waiver requires something express, some intentionality. And “ ‘the
Plaintiffs do not even attempt to show, much less show, such intentionality. In any event, what arguments they do make have no merit.
Plaintiffs cite no case addressing the issue of waiver in a validation action, indeed, their counsel admitting at the hearing he was not aware of any published decision concluding that a public entity defendant waived a plaintiff’s compliance with the reverse validation requirements by raising it too late in the trial court. And plaintiffs’ reliance on
Based on that, plaintiffs’ argument runs as follows: A “contest” means to “dispute or challenge through legal procedures.” (https://www.merriam-webster.com/dictionary/contest#legalDictionary as of 7/22/2026.) Courts use “contest” to mean dispute or challenge, as when a party waives a jurisdictional issue by “contesting the merits.” (State Farm General Ins. Co. v. JT’s Frames, Inc. (2010) 181 Cal.App.4th 429, 437.) Here, the City unquestionably “contested” plaintiffs’ challenge through legal procedures—filing an answer, conducting discovery, and seeking summary judgment.
Plaintiffs’ strained argument, focusing on the second sentence of
Plaintiffs rely primarily on City of Ontario v. Superior Court (1970) 2 Cal.3d 335. But if anything, that case hurts them, the Supreme Court there recognizing that “while [
Golden Gate Hill Development Co., Inc. v. County of Alameda (2015) 242 Cal.App.4th 760 (Golden Gate Hill) illustrates the mandatory nature of the reverse validation procedures. There, plaintiff sought a refund of school district taxes based on the argument that the underlying tax measures unlawfully imposed different taxes according to property type and size. (Id. at p. 764.) While the suit was filed within the statute of limitations for a tax refund claim, “the time period for a validation action ha[d] passed.” (Id. at p. 768.) Division Five of this court held that plaintiff’s refund “claim lack[ed] any legal basis, [] because the [measures adopting the challenged tax] were long ago deemed valid by operation of the validation statutes.” (Id. at p. 771, italics in original; to the same effect, see Campana v. East Bay Municipal Utility District (2023) 92 Cal.App.5th 494, 501–507.)
As noted, plaintiffs assert that
Second, plaintiffs suggest, without citation of authority, that summary judgment is an alternative “remedy” within the meaning of the second sentence of
In support of their waiver claim, plaintiffs cite Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 569, a case involving waiver of the right to compel arbitration. But Quach emphasizes that its analysis is specific to contractual agreements, noting “A defendant who instead litigates the case risks losing the contractual right to compel arbitration. One way a contractual right may be lost is by waiver.” (Id. at p. 569, italics added.) No court has held that arbitration waiver cases—about whether to enforce a private agreement between parties—applies to a plaintiff’s failure to follow procedures required by statute to protect the rights of other interested parties.
We cannot end our discussion of plaintiffs’ waiver argument without comment on plaintiffs’ reply brief. As noted, plaintiffs first argument in their opening brief, to which they devote a significant portion of that brief, asserted in bold-face that “By Choosing to Litigate Aquilina . . . City Waived Application of the Validation Procedures.” Now, in their reply brief, plaintiffs argue, also in bold-face, that the “City’s Conduct Establishes Forfeiture.” Forfeiture, of course, is different from waiver. (Goodwin v. Comerica Bank, N.A. (2021) 72 Cal.App.5th 858, 867, fn. 8
No reason is given by plaintiffs for this change of position, but as plaintiffs’ briefing impliedly acknowledges, waiver requires an intention that plaintiffs never even attempted to show. In any event, arguments made for the first time in a reply brief are improper and will not be considered. (American Indian Model Schools v. Oakland Unified School District (2014) 227 Cal.App.4th 258, 275.)
Plaintiffs next devote several pages in their brief to various arguments that refer to “jurisdiction.” The first asserts that “Validation Requirements Do Not Affect the Court’s Fundamental Jurisdiction”, going on to cite some boilerplate principles involving jurisdiction. Three pages later plaintiffs assert that “Section 53759 Contains No Clear Marker of Legislative Intent to Limit the Fundamental Jurisdiction of the Courts,” and on the next page that “Section 863’s Publication Requirement Does Not Affect a Court’s Fundamental Jurisdiction.” The arguments reflect a myopic reading of the law.
It is probably enough to note plaintiffs’ express acknowledgment below, that “in a validation action, the ‘only way for the court to acquire jurisdiction over the matter is to ensure that notice is given to all interested persons so that the resulting judgment can be conclusive as against them,’ ” citing Katz, supra, 144 Cal.App.4th at p. 1032. Indeed, as Katz went on to hold, “Failure to publish a summons in accordance with the statutory requirements
As Katz put it a page earlier, rejecting the plaintiff’s argument there, apparently the same argument plaintiffs make here: “Plaintiff first contends that the summons provisions are not ‘jurisdictional,’ by which plaintiff seems to mean that the specifics of the summons requirements may be mandatory but failure to comply does not deprive the trial court of jurisdiction to proceed. . . . The argument is a misstatement of the law.” (Katz, supra, 144 Cal.App.4th at p. 1031.)
But beyond Katz, many courts have held that compliance with the reverse validation requirements is required for a court to have jurisdiction. (See, for example, San Diegans for Open Government v. City of San Diego (2015) 242 Cal.App.4th 416, 428; Coachella Valley Mosquito and Vector Control Dist. v. City of Indio, supra, 101 Cal.App.4th at p. 18; Arnold v. Newhall County Water Dist. (1970) 11 Cal.App.3d 794, 800.)5
Plaintiffs assert that good cause exists for their failure to comply with the validation procedures. The trial court considered the identical claim below, and held that plaintiffs’ claimed showing “does not remotely qualify.” We agree completely.
A trial court’s decision on the issue of good cause “ ‘rests almost entirely in the discretion of the court below, and appellate tribunals will rarely
Plaintiffs fundamentally rely on City of Ontario, where the issues included whether various statutes were the subject to the validation procedures, and it was in resolving that issue that the Supreme Court used the adjectives “complex and debatable.” (2 Cal.3d at p. 345.) Such adjectives do not apply here.
Lastly, plaintiffs contend in a brief two-page argument that “Belated Publication Can Perfect In Rem Jurisdiction.” Maybe so. But not here.
Card v. Community Redevelopment Agency (1976) 61 Cal.App.3d 570, the case plaintiffs rely on, is distinguishable. The issue there arose in the context of a
The trial court’s conclusion that there was no good cause was amply supported and, at a minimum, did not constitute an abuse of discretion. (See Community Redevelopment Agency, supra, 248 Cal.App.2d at p. 175 [“[P]laintiffs appear to argue that their failure to publish a proper summons within the 60-day time limit fixed by section 863, was cured by the publication of a ‘corrected’ summons after the ruling of the court on defendants’ motion to dismiss. There is no merit in this contention.”].)
DISPOSITION
The judgment (order) is affirmed.
RICHMAN, J.
We concur.
STEWART, P. J.
DESAUTELS, J.
(A173560P)
Trial Judge: Ethan P. Schulman, Judge
Counsel:
Driscoll & Omens, Donald P. Driscoll and Adryane R. Omens for Plaintiffs and Appellants.
David Chiu, City Attorney, Sara J. Eisenberg, Chief City Attorney, and Alexander J. Holtzman, Deputy City Attorney, for Defendant and Respondent.