Gilbert v. City of Sacramento

Opinion

SIMS, J. In this case, we hold that subdivision (c) of section 10404 of the Streets and Highways Code precludes the claim of a property owner that his property was assessed too much because a city gave him tardy notice of the confirmation of an assessment under the Municipal Improvement Act of 1913. (Sts. & Hy. Code, § 10000 et seq.; all further statutory references are to this code unless otherwise noted.)

Plaintiff appeals from a judgment of dismissal entered after defendants’ demurrer to the second amended complaint was sustained without leave to amend. Plaintiff contends it has stated a cause of action for declaratory relief. We disagree and shall affirm the judgment.

Facts and Procedural Background

The facts alleged in the second amended complaint, which we accept as true (Committee on Children's Television, Inc., v. General Foods Corp. (1983) 35 Cal.3d 197, 213 [197 Cal.Rptr. 783, 673 P.2d 660]) are as follows:

[1021]On or about December 18, 1984, the Sacramento City Council adopted resolutions which led to the creation of the Morrison Creek Assessment District under the Municipal Improvement Act. of 1913. On or about that same date the city clerk issued an informational notice to property owners which indicated the city was engaged in proceedings which would result in the creation of an assessment district. The notice indicated that February 12, 1985, was the date upon which a final determination resulting in an assessment would be made. The notice further provided: “A period of thirty (30) days will be allowed to pay assessments in cash.”

The matter was continued by the city council from time to time until March 12, 1985. On that date the city council passed and adopted various resolutions which created the Morrison Creek Assessment District. On the same day, the city issued a notice to pay assessments to the plaintiff. However, the notice was not postmarked in Sacramento until March 26, 1985, and was not received by the plaintiff until March 29, 1985. The notice stated “Assessments are due and payable immediately . . . and must be paid within the period expiring April 15, 1985.” The notice further stated, “Note: If your assessment is paid in cash by the close of business on April 15, 1985, it will be reduced . . . .” (Italics in original notice.)

The second amended complaint alleges that because the time actually afforded for payment in cash was only 20 days (Mar. 26 to Apr. 15) instead of 30 days as promised, plaintiff was unable to effect timely payment.1 If the 30-day period which had been promised had actually been afforded, such payment could have been made. Further, if the city had indicated that only 20 days would be allowed, then special provisions might have been made to arrange timely payment.