Plunkett v. City of Lakewood

Opinion

FLEMING, Acting P. J.

On 28 November 1972 the City Council of the City of Lakewood enacted pursuant to the California Community Redevelopment Law (Health & Saf. Code, § 33000 et seq.) Ordinance 72-18, a redevelopment plan for a portion of Lakewood around the Lakewood Center shopping area. On 10 April 1973, more than four months after the enactment of the plan, Donald R. Plunkett, on behalf of himself and all other Lakewood taxpayers, filed an action against the city, members of the city council, the city treasurer, and the Lakewood Center, seeking to declare the ordinance void, to enjoin further expenditure of city funds under the ordinance, and to obtain reimbursement for city funds already spent.

The trial court sustained a demurrer to the complaint without leave to amend on the ground the action failed to meet the 60-day filing requirement of Health and Safety Code section 33500: “No action attacking or otherwise questioning the validity of any redevelopment plan, or the adoption or approval of such plan, or any of the findings or

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determinations of the agency or the legislative body in connection with such plan shall be brought prior to the adoption of the redevelopment plan nor at any time after the elapse of 60 days from and after the date of adoption of the ordinance adopting the plan.”

Plunkett has appealed the judgment (order of dismissal) contending the allegations of his complaint removed the action from the time limitations of Health and Safety Code section 33500. His complaint alleged that Ordinance 72-18, though valid on its face, was a fraud perpetrated on Lakewood taxpayers by members of the city council in collusion with Lakewood Center with the intent to aid private interests with public funds; that members of the city council knowingly made a false finding that the redevelopment area was “blighted” within the meaning of Health and Safety Code sections 33031-33034 in order to invoke the Redevelopment Law. Plunkett argues that his complaint challenges an illegal expenditure of public funds, not the redevelopment plan itself, and therefore Code of Civil Procedure section 526a controls the timeliness of its filing rather than Health and Safety Code section 33500.

We think Plunkett has misread these sections. Code of Civil Procedure section 526a provides in pertinent part: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, had paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.”