Cavalier Acres, Inc. v. San Simeon Acres Community Services District

Opinion

ABBE, J.

Respondent Cavalier Acres, Inc. (Cavalier) filed this action to recover the sum of $7,590 paid by it on February 9, 1982, to appellant, San Simeon Acres Community Services District (District), for an additional sewer and water connection fee for 22 motel units being constructed by respondent. In May 1979 Cavalier had paid District the sum of $6,710, the then full amount of the sewer and water connection fee for the motel units. Cavalier commenced construction prior to January 6, 1982. On January 6, 1982, District adopted resolution number 102, modifying the charges for water and sewer connections, which had the effect of increasing the fee for Cavalier by $7,590. Cavalier paid the additional charges under protest, sued, and recovered judgment for the additional fee on its motion for summary judgment. We affirm.

Appellant raises two points on appeal. (1) That its affirmative defense of the failure of Cavalier to comply with the appropriate claims statute respecting the bringing of a lawsuit against a public entity was valid. (2) That the District may adopt a sewer and water connection fee increase by use of resolution rather than by ordinance. We find neither contention to have merit.

Pursuant to the California claims statute (Gov. Code, § 900 et seq.), Cavalier filed a timely claim for recovery of the additional fee paid. We consider the factual circumstances set forth in the claim as inadequate to support some of the pertinent allegations in the complaint. Cavalier contends this is immaterial as it is exempt from filing a claim because of District’s admitted failure to comply with Government Code section 53051 requiring the governing board of each public agency to file information concerning the public agency and members of the governing board. In

Lopez

v.

Southern Cal. Permanente Medical Group

(1981) 115 Cal.App.3d 673 [171 Cal.Rptr. 527], the court pointed out that a complaint filed against a public entity may not allege a cause of action not mentioned in the claim. Although the claim may have been defective here,

Wilson

v.

San Francisco Redevel

[801]