Code of Civil Procedure sections 860 to 870 authorize a public agency or an interested private party to bring a “validation action” in superior court to determine the validity of certain public agency actions. The action is an in rem proceeding, so the judgment validating or invalidating the public agency’s actions is conclusive against all other persons and not just the litigants.
While a validation action is a powerful remedy, it is subject to unique procedural requirements. For example, because the judgment will be binding against all other persons, the plaintiff in a validation action must draft a special summons that invites all unknown, interested defendants to come forward and file an answer in the case. If the plaintiff fails to properly serve the summons by publication within 60 days of filing, the case is subject to mandatory dismissal by the court. Because this requirement, and others like it, have made validation actions challenging for unwary litigants in the past, this article focuses on the more unusual procedural twists required in validation actions.
Overview Of The Validation Statutes
The Legislature enacted the validation statutes in 1961 as a uniform procedure for conclusively determining the validity of certain public agency actions. The validation statutes do not state what matters may be brought as validation actions. Rather, other statutes throughout the codes authorize certain matters to be determined as validation actions. Government Code section 53511 is the broadest authorization for validation actions, and it allows a plaintiff to bring a validation action to determine the validity of any local agency’s bonds, warrants, contracts, obligations, or “evidences of indebtedness.” Other authorizations for validation actions are more limited than Section 53511. For example, state law allows validation actions to determine the validity of redevelopment plans (Health & Safety Code, § 33501, subd. (a)), the formation of certain special districts (Gov. Code, § 58200), assessments, bonds, and contracts made under the Municipal Improvement Act of 1913 (Streets & Highways Code, § 10601); and bonds issued or special taxes levied under the Mello-Roos Community Facilities Act of 1982 (Gov. Code, § 53359). Dozens of additional authorizations exist in the codes.
Either the public agency or, in the case of a “reverse validation action,” an interested private party, may initiate a validation action. Because a pending validation action creates uncertainty surrounding the public agency action sought to be validated, the action is entitled to trial preference over all other civil actions so that the matter may be “speedily” determined. (Code Civ. Proc., § 867.)
Because of the conclusive effect of a validation action and the requirement that the matter be determined quickly, the validation statutes impose a number of unique procedural requirements that can surprise litigants.
The 60-Day Statute of Limitations
The statute of limitations in a validation action is generally just 60 days. Some statutes authorizing the use of a validation action prescribe an even shorter statute of limitations. For example, Government Code section 53359 provides for a 30-day statute of limitations for actions to determine the validity of special taxes levied under the Mello-Roos Community Facilities Act of 1982. The validation statutes also provide that any appeal must be made within 30 days after the notice of entry of judgment.
As several cases have observed, one consequence of this short statute of limitations is that in cases where a validation action could have been filed but was not, a public agency’s actions are de facto “validated” 60 days later when the statute of limitations runs.
Naming the Parties
In the case of a reverse validation action, the plaintiff must name the public agency as a defendant and serve it with a summons and complaint in the regular manner.
Because a validation action is an in rem proceeding conclusive against all persons, the plaintiff must ALSO give notice of the lawsuit to all persons who have an interest in the matter sought to be validated. Accordingly, the plaintiff must name “all persons interested in the matter of _____” (the matter sought to be validated) as a defendant in the action.
Preparing the Summons
The summons used in a validation action is unlike any other. Simply using the Judicial Council’s form summons will not satisfy the statutory requirements, a mistake made by plaintiffs in several reverse validation cases.
The summons must contain a thorough description of the matter sought to be validated, as well as a notice to all interested persons that they may contest the validity of the matter by appearing and filing a written answer to the complaint. The summons must also state that persons who contest the legality or validity of the matter will not be subject to punitive action, such as wage garnishment or seizure of their real or personal property. In all other respects, the summons must conform to the general requirements in Code of Civil Procedure section 412.20.
Publishing the Summons
The plaintiff prepares the summons in a validation action with the intent that it will initially be served by publication, a method of service virtually never used in the first instance in other types of civil litigation. One area ripe for error is that the summons must state a specific response date by which all interested persons must file an answer. Plaintiff must be very careful in calculating the response date in the summons because there are a number of timelines that must be considered. Most importantly, the plaintiff must remember that in the case of a reverse validation action, the timeline for publishing the summons is relatively short. Plaintiff must file the proof of service of the summons by publication within 60 days after filing the complaint. If the proof of service is not filed, the action is subject to dismissal on motion of the public agency unless the plaintiff can show good cause.
The plaintiff must also consider that the validation statutes require the plaintiff to obtain a court order allowing publication of the summons. Because of the current congestion in court dockets, a noticed motion for publication of the summons would ordinarily be heard after the 60-day time limit. Thus, an ex parte application for an order allowing publication of the summons may be necessary.
Finally, the plaintiff must observe that the validation statutes require publication of the summons once a week for three weeks, with service considered complete on the twenty-first day after publication began. This is a different timeline than the one generally applicable to publication of a summons. Further, the specific response date provided in the summons must be 10 or more days after the completion of publication of the summons, meaning that the date specified in the summons must be at least 31 days after the first publication of the summons.
According to case law, if plaintiff gives all interested persons too little time to respond, then grounds exist for the court to quash the summons and, if 60 days have elapsed from the filing of the complaint, dismiss the action with prejudice.
The “Harmless Error” Rule
While the validation statutes are full of procedural twists, they also contain a “harmless error” rule that provides that any error or omission which does not affect the substantial rights of the parties should be disregarded. However, there is an apparent split of authority as to the meaning of this “harmless error” rule. The court in Community Youth Athletic Center v. City of National City (2009) 170 Cal.App.4th 416 held that this rule allows the court to disregard procedural defects in the plaintiff’s publication of the summons. In contrast, the court in Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024 held that the “harmless error” rule applies only to insubstantial errors made by the public agency in taking the action sought to be validated and not to procedures in the validation action.
A validation action is a unique remedy that provides a conclusive determination as to the validity of a public agency’s actions. Practitioners are cautioned, however, to beware of the procedural pitfalls discussed in this article and to review Code of Civil Procedure sections 860 to 870 carefully before filing a validation action.