Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC852143, Jeffrey B. Barton, Judge.
McDONALD, J.
In March 2005 defendant City of Poway (Poway) approved a resolution adopting a Reimbursement Agreement (RA) between Poway and Northpoint Development, Inc. The RA provided a mechanism to reimburse Northpoint for some of the costs of sewer improvements installed in connection with two subdivisions. The resolution found it was just and fair that the costs of the sewer system be borne by all who benefitted from the new sewer, including adjoining developers who in the future will use the sewer system in connection with development of their lands, and the RA therefore provided that Poway would assess adjoining developers for a share of the costs of the sewer improvements as a condition for development of their lands and would reimburse Northpoint as those assessments were collected.
In August 2005 plaintiffs Ed and Barbara Malone (together the Malones), who obtained approval for a tentative map to develop land adjoining the new sewer system and were subject to the assessments under the RA as a condition to development of their adjoining land, filed this action seeking to invalidate the resolution adopting the RA and enjoin the collection of assessments under the RA. The Malones alleged the RA was an invalid tax on the adjoining property owners because the bulk of the costs of the sewer improvements should have been borne by Poway, and the RA was a fraudulent effort to shift those costs from Poway to the adjoining property owners.
The court concluded the Malones' challenge to adoption of the RA was barred absent proof that equitable relief was available under the strictures of Maxwell v. City of Santa Rosa (1959) 53 Cal.2d 274 (Maxwell), and found the evidence insufficient to bring this matter within Maxwell. The court also concluded the Malones did not pursue a proper challenge to the amount of the assessment. Accordingly, the court entered judgment for Poway.
On appeal, the Malones assert they met the standards for relief as specified in Maxwell, and there are numerous other grounds for relief requiring reversal of the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On appeal, the Malones' factual recitation relies on numerous facts either not presented at trial or rejected by the trial court in its assessment of the evidence. The former are improper, and the latter offend the rule that the evidence must be viewed most favorably to the judgment. Accordingly, our factual background bears little resemblance to the facts recited by the Malones.
A. The RA and the Malones' Development
The RA
The RA was designed as a mechanism to reimburse Northpoint for some of the costs of sewer improvements. The sewer improvements were installed in connection with two subdivisions (the Old Coach Estates and Heritage Ranch Estates subdivisions) but provided sewer capacity in excess of the amount required for the two subdivisions. The excess sewer capacity was therefore available to provide sewer service to future developments on adjacent parcels. The RA provided that Poway would assess adjacent developers for a share of the costs of the sewer improvements as a condition to development of the adjacent lands and would reimburse Northpoint as those assessments were collected. Poway initially set a hearing to approve the RA in May 2003. However, at the request of the Malones (who owned one of the adjacent parcels) and others, Poway continued the hearing to allow them to study the proposed RA.
At the May 2003 hearing, the city council also considered and approved a motion authorizing Poway to contribute $150,000 toward the costs of the new sewer system. Poway contributed to the new sewer system because an existing pump station and sewer system serving a nearby older development (the St. Andrews development) was becoming expensive to maintain and Poway wanted to decommission that pump station and connect to the newly built system. This required an expansion of the pumping capacity for the pump station for the new sewer system, and Poway agreed to pay $150,000 for the expanded pumping capacity. The motion authorizing Poway to pay $150,000 as its contribution was approved at the 2003 hearing.
On March 1, 2005, Poway held another hearing on approval of the RA. The Malones appeared at that hearing and objected to the proposed assessment on the basis that the methodology employed to calculate the amounts owed by each adjacent parcel erroneously used the systems approach to calculating each developer's fair share of the costs. They asserted Poway should use a segmental approach instead of the systems approach for assessing costs. Under the systems approach, the assessed cost is determined by dividing the total cost of the entire system by the total number of units that will benefit from using the system, thereby creating a per unit cost, and then assessing each developer based on the total number of units in that development. Under the segmental approach, the system is broken into pieces (or segments) and costs are apportioned by measuring the portion of the system used by each unit and assigning that segment a percentage of the overall use of the system. The Malones had apparently been lobbying for adoption of the segmental approach during the hiatus between the initial and final hearings on the RA.
Poway approved Resolution No. 05-014 in March 2005, adopting the RA between Poway and Northpoint. Under the RA, Northpoint was entitled to be reimbursed by Poway for some of the costs of the sewer improvements, which monies Poway would collect from adjacent developers as a condition to approval of the development of the adjacent developers' lands. The resolution found the sewer improvements were designed to accommodate more sewer capacity than was needed by the two subdivisions and this excess capacity would benefit adjoining land developers by permitting them to use the new sewer's capacity to develop their adjoining properties more economically, and further found it was just and fair that the costs of the sewer system be borne by all who benefitted from the new sewer. Accordingly, the RA provided that Poway would impose sewer assessments on adjoining developers, for a share of the costs of the sewer improvements as a condition to approval of the development of the adjoining developers' lands, and would reimburse Northpoint as those assessments were collected.
After the RA was adopted in March 2005, the Malones sought to resurrect their objections to the methodology employed to decide on the amount to charge adjoining developers, as well as their objection that Poway's $150,000 contribution to the cost of the new system was inequitable, after the RA was adopted in March 2005. Poway, after noting these objections had already been discussed with the Malones on several earlier occasions, declined their request to revise or reevaluate the RA.
The Malones' Development
The Malones originally obtained approval in November 2003 for a tentative map to develop land adjacent to the property containing the new sewer system. One of the conditions for approval was that the Malones pay the assessments under the RA if the RA was approved by Poway. On August 16, 2005, Poway adopted Resolution P-05-53, which approved the Malones' amended tentative map to develop their land. Resolution P-05-53, which reiterated that a condition of approval was the Malones' payment of the assessments under the RA, specified that the Malones had 90 days (pursuant to Gov. Code, § 66020) to lodge any protest to the resolution.
We recite the procedural posture in some detail because it delimits the issues preserved for this appeal.
The Malones' action, filed August 9, 2005, sought to invalidate the resolution adopting the RA and enjoin the collection of assessments under the RA. The Malones alleged the RA was invalid as a disguised "special tax" on the adjoining property owners. The Malones alleged Poway's fair share of the costs of the expanded sewer system should have been over $900,000 (because of the sewer service it provided to the St. Andrews development), but that Poway instead negotiated a secret "side deal" with Northpoint pursuant to which Poway's payment would be reduced to $150,000 and the shortfall would be shifted from Poway to the adjoining property owners by assessing landowners under the RA. The Malones sought declaratory and injunctive relief precluding Poway from enforcing the RA against them.
Poway demurred to the complaint, arguing the exclusive avenue for seeking judicial review of an administrative action by a local agency is a timely petition for a writ of mandate under Code of Civil Procedure section 1094.5. Poway asserted the Malones' action was improper because (1) it was untimely and (2) it sought to avoid the evidentiary and legal limitations applicable to writ proceedings. Accordingly, Poway argued the Malones' action should be dismissed without leave to amend. The court concluded the complaint did not on its face demonstrate the adoption of the RA was a quasi-adjudicatory act to which the exclusive remedy of administrative mandamus applied, and the Malones had stated sufficient facts to state a claim under Maxwell. Accordingly, the court overruled the demurrer.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
In subsequent pretrial proceedings, Poway moved for judgment on the pleadings. Poway argued that, to the extent the Malones' lawsuit purported to challenge the amount assessed to the Malones' development, that assessment was imposed as a condition to the approval of the Malones' tentative map, and under the procedures outlined in Government Code section 66020, the Malones were required timely to pursue prelitigation protest procedures to preserve any claim as to the amount imposed. Poway asserted that because the Malones did not pursue those procedures, their purported attack on the validity of the sewer assessment for their project was barred. The Malones opposed this motion, apparently arguing the complaint did not allege that approval of their tentative map was based on an improper fee within the strictures of Government Code section 66020, and therefore compliance with those procedures was unnecessary. Instead, the Malones apparently argued, their complaint attacked the adoption of the RA as an unlawful effort to furnish revenue to Poway under the guise of a development assessment, and that such claims could be pursued regardless of whether the plaintiff complied with Government Code section 66020's procedures. The court agreed that, because of the nature of the claims raised by the Malones' complaint, it was unnecessary for the Malones to comply with the Government Code section 66020's procedures, and therefore denied the motion for judgment on the pleadings. However, the court sua sponte granted the Malones leave to amend should they want to recast their complaint as a petition for writ of mandate.
The Malones' written opposition to the motion for judgment on the pleadings is not part of the record on appeal, and we therefore must rely on the trial court's ruling on the motion to discern the Malones' arguments below.
The matter proceeded to trial on the allegations of the Malones' original complaint. Poway's trial brief contended that, to the extent the Malones' action challenged the resolution adopting the RA, it was barred by limitations (because the complaint was not filed within the 90-day limitations period applicable to petitions for administrative mandamus) and by the absence of an administrative record. Poway also contended that, to the extent the Malones' action sought to challenge the imposition of a development fee on their development, that action was barred by noncompliance with prelitigation protest procedures imposed by the Government Code. Poway finally contended that, even if the action was not procedurally defective, the evidence would show Poway's city council acted within its discretion when it adopted the RA. The Malones' trial brief asserted (1) the adoption of the resolution was not a quasi-adjudicatory determination and therefore the strictures of administrative mandamus did not apply, and (2) equitable relief--governed by the four-year statute of limitations--could be obtained under Maxwell by way of injunction, mandamus, or declaratory relief. The Malones also asserted they were not required to comply with the prelitigation protest procedures for various reasons. The Malones also argued the RA did not fairly and reasonably apportion costs and was therefore invalid and should be enjoined.
Poway moved for an order clarifying whether the trial court's statement that the Malones could amend to state a claim for mandamus was a requirement that the Malones amend their complaint. The Malones, arguing an amendment was unnecessary, asserted that because the resolution adopting the RA was a quasi-legislative rather than quasi-adjudicatory function, the Malones' attack on the resolution was not limited to a claim for administrative mandamus (which would have been time-barred by the attendant 90-day limitations period) but was instead subject to challenge by traditional mandamus with its four-year limitations period. The Malones also argued that, because Maxwell permitted a challenge to the validity of the resolution by a complaint seeking declaratory and injunctive relief, it would be superfluous to amend the complaint because the same relief would be available to the Malones under either their complaint or by a writ of traditional mandate. Accordingly, the Malones declined the opportunity to amend the complaint.
The Malones also asserted that, even if the resolution was the type of action governed by administrative mandamus, the 90-day limit never commenced (because the resolution was defective as a matter of law) or was tolled until Poway rejected the Malones' request to reconsider the resolution.
C. The Judgment
The court found that, although a challenge to adoption of a reimbursement agreement ordinarily must proceed by a petition for writ of administrative mandamus and that such a challenge would be time barred here, Maxwell provides a limited exception and permits a challenge by petition for traditional mandamus where there is evidence the agency acted fraudulently, or imposed a manifestly or grossly unjust assessment amounting to an abuse of discretion. The court concluded the Malones' allegations--that Poway manipulated the consultant's recommended cost allocation to reduce Poway's share of the costs and shifted those costs by increasing the Malones' share of the costs--qualified as the type of conduct reviewable under Maxwell, but the evidence did not factually support those allegations. The court also rejected other collateral challenges to the RA as outside the scope of the pleadings, or as outside the scope of Maxwell, or as unsupported by the evidence.
II
ANALYSIS
On appeal, the Malones raise numerous contentions. We conclude that three of the Malones' contentions are raised for the first time on appeal and therefore constitute new claims not preserved for appeal. We conclude several of the Malones' other claims improperly attempt to raise collateral issues outside the limited scope of their pleadings, and therefore may not be raised. Finally, as to those claims that are properly raised and framed by the Malones' pleadings, we conclude the evidence supported the trial court's judgment and the court did not abuse its discretion by denying the Malones' effort to amend their complaint after trial.
A. The New Claims
On appeal, the Malones assert the RA is invalid because it authorizes reimbursement to a party (Northpoint) not eligible for reimbursement because the RA covers the cost of sewer improvements installed for two subdivisions (the Old Coach Estates and Heritage Ranch Estates subdivisions) but a different entity (Environmental Development, Inc.) paid to install the sewer improvements in the Old Coach Estates subdivision. The Malones' second claim is that neither Northpoint nor Environmental Development, Inc., was eligible to recoup the costs because neither possessed a valid state contractor's license when the sewer improvements were installed.
Neither of these claims was litigated (or apparently even mentioned) below, and the only evidentiary support cited on appeal to support these claims are documents the Malones have requested we take judicial notice of for the first time on appeal. The courts decline efforts by an appellant to obtain reversal based on entirely new theories on appeal not factually developed below because, when new theories on appeal " 'contemplate[] a factual situation the consequences of which are open to controversy and were not put in issue or presented at trial the opposing party should not be required to defend against it on appeal. [Citations.]' " (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.) Because there are numerous unknowable facts that might undermine or rebut the Malones' new theories, we deny the request for judicial notice and do not further consider these theories.
For example, because these issues were not raised below, the legal relationship between Northpoint and Environmental Development, Inc., is entirely undeveloped, and the relationship between the two entities might have permitted Northpoint to assert a right to reimbursement for the entire sewer installation. Additionally, even assuming a legal predicate to entering a reimbursement agreement was that the sewer installation is done by one with a contractor's license, the parties had no occasion to present evidence on whether the system was actually installed by someone with a valid license. Although the Malones rely on Van Klompenburg v. Berghold (2005) 126 Cal.App.4th 345, 348, footnote 3 to assert this court may consider new legal theories on appeal, Van Klompenburg did not hold that legal theories may be raised for the first time on appeal when the theories involve potential factual disputes not presented or resolved below.
At oral argument the Malones for the first time asserted that the RA constituted an assessment, fee or charge subject to the provisions of Article XIIID of the California Constitution, and that under the recent opinion of the California Supreme Court in Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, the constitutional requirements for approval of the RA were not satisfied. We note that Section 1 of Article XIIID provides: "Nothing in this article or Article XIIIC shall be construed to: [¶] . . . [¶] (b) Affect existing laws relating to the imposition of fees or charges as a condition of property development." We conclude Article XIIID and Silicon Valley are not relevant to the instant case.
B. The Collateral Claims
The Malones raise a series of other claims as grounds for reversal that, although first mentioned below, were not framed by their pleading. For example, the Malones argue Poway's Municipal Code section 13.24.030 provides a developer is only eligible to enter a reimbursement agreement if the application is submitted for approval before construction commenced, and Northpoint's failure to do so rendered it ineligible to seek a reimbursement agreement. The Malones also argue approval of the RA was invalid because the amount assigned by the RA as the Malone property's share of the assessment was excessive for two principal reasons (e.g. it was calculated using the systematic rather than the segmental valuation, and it failed to assess a portion of the costs to the St. Andrews subdivision for the benefits reaped by that subdivision), and therefore was in violation of Poway's Municipal Code sections 13.24.040 and 13.24.070.
The Malones assert on appeal, and apparently also asserted below in their objections to the statement of decision, that the amounts charged were excessive for the additional reason that Poway had already paid $150,000 to Northpoint to defray part of the costs of the expanded pump station but this $150,000 was not deducted in reduction of the final costs apportioned by the RA. However, this issue was not framed by the pleadings, and the only evidence cited by the Malones on appeal to establish that this amount was not in fact deducted from the total costs of the project is the Malones' expert's opinion that the costs allocated by the Harris report to the pump station and sewer main were erroneous. However, this appears to have been the type of factual issue that could have been (or perhaps was) tendered to the city council when it considered the RA, and would therefore be encompassed within the set of issues that may not be pursued except by a petition under section 1094.5 for administrative mandamus. Accordingly, we do not further consider the Malones' claim that Poway abused its discretion by approving an RA that overcompensated Northpoint by $150,000.
We conclude that both of these challenges were beyond the limited scope of the pleadings. Both the timeliness of Northpoint's application for approval of the RA and the fairness of the amounts each property was properly to be assessed under the RA were matters that could have been raised at the time the city council considered its resolution to adopt or reject the RA. Accordingly, absent the special circumstances outlined in Maxwell, the exclusive avenue for judicially challenging the city council's decision to approve the RA was by a petition for administrative mandamus raising the alleged untimely application or alleged unfair apportionment of costs. A petition under section 1094.5 is the exclusive method for seeking judicial review of quasi-adjudicatory administrative decisions of local agencies. (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1211.) The decision to approve or reject the RA was the type of action that required the City to hold a noticed hearing (Poway Municipal Code § 13.24.050) at which it must make numerous factual determinations (id. at § 13.24.060), and therefore was a quasi-adjudicatory administrative decision by a local agency. (See, e.g., McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785 [legislative action involves formulation of a general rule to be applied to all future cases while adjudicatory action involves application of existing rules to specific set of facts, and latter action is reviewable under administrative mandate provisions].) The Malones' failure to timely challenge adoption of the RA by a petition under section 1094.5 barred them from asserting the city council's decision to approve the RA lacked evidentiary support. (See § 1094.6, subd. (a).)
The Malones moved after trial to amend their pleadings to assert the RA was invalid under Poway's Municipal Code sections 13.24.030 and 13.24.040, purportedly as an amendment to conform to proof. We conclude below the trial court's order denying their request to amend was not an abuse of discretion.
The Malones argue they may assert the alleged untimely application for the RA in a declaratory relief action, notwithstanding their failure either to raise the issue at the hearing on the resolution approving the RA or to timely pursue a petition for administrative mandate, because those requirements apply only when the local agency action constitutes a quasi-adjudicatory proceeding and not when the action involves legislative action. However, the cases relied on by the Malones are inapposite because each of those cases involved challenges to legislative actions adopting generalized policies. (See Californians for Native Salmon etc. Assn. v. Department of Forestry (1990) 221 Cal.App.3d 1419, 1429 [declaratory relief action proper vehicle to challenge overarching policies of agency because it does not represent "unwarranted control of discretionary, specific agency decisions"]; cf. Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722-1724 [declaratory relief action deemed proper vehicle to challenge adoption of agreement between cities and county limiting ability of entities to amend general plans]; Mefford v. City of Tulare (1951) 102 Cal.App.2d 919, 922 [declaratory relief action deemed proper vehicle to challenge adoption of ordinance governing future subdivisions even though no particular subdivision had been denied under the ordinance].) The resolution challenged here did not adopt general policies applicable throughout Poway, but instead approved the RA based on the local agency's findings that the specific agreement qualified for approval under existing general policies.
The Malones did not, and because of the expiration of the limitations period could not, pursue a petition for administrative mandamus. Instead, they were able to resurrect an otherwise untimely challenge to the adoption of the RA, and to avoid dismissal on demurrer, by limiting their pleadings to a claim the resolution was invalid under Maxwell. In Maxwell, the court evaluated whether an assessment adopted by a local agency, when adopted in compliance with all procedural requirements after an evidentiary hearing by the local agency, could nevertheless be challenged by a lawsuit seeking declaratory and injunctive relief when the lawsuit alleged there was evidence outside the administrative record to show the local agency acted fraudulently or in bad faith when it adopted the assessment. The court held that although an agency's decision to adopt an assessment is generally not subject to collateral attack, this general rule will not bar equitable relief when there is evidence the local agency engaged in conduct amounting to fraud. (Maxwell, supra, 53 Cal.2d at pp. 277-278.) Maxwell concluded that, because the plaintiffs alleged the local agency acted fraudulently and in bad faith because the agency predetermined how much it would pay and then assessed the local district for the balance without any intent to investigate or consider whether the amount assessed was related to the actual benefits conferred, the plaintiffs had pleaded a claim that would (if proven) entitle them to equitable relief. (Id. at pp. 279-281.)
We assume that, under the limited circumstances described in Maxwell, a local agency's action may be challenged even though a lawsuit challenging that same action, had it been brought as a petition for administrative mandamus, would have been subject to dismissal because of the lapse of the limitations period for challenging the local agency's action. However, we reject the Malones' effort to simultaneously preserve this lawsuit from dismissal--by claiming the challenges were not subject to the procedures and limitations applicable to administrative mandamus actions because the pleading was limited to raising only those challenges that fell within Maxwell's narrow parameters--but then seek to broaden the claims to litigate the precise types of challenges that would otherwise be barred by noncompliance with the procedures and limitations applicable to an administrative mandamus action. Accordingly, we conclude that all challenges beyond the confines of Maxwell, including the Malones' claims that the evidence at trial showed the application for the RA was untimely or that the evidence at trial showed the RA unfairly apportioned the costs of the sewer improvements, are time barred by Code of Civil Procedure section 1094.6, subdivision (a).
C. The Evidence Supports the Judgment
The trial court, examining the limited issues properly raised by the Malones' complaint, concluded the evidence did not support the Malones' claim that the resolution adopting the RA should be invalidated under Maxwell, supra, 53 Cal.2d 274. On appeal, the Malones claim (1) the trial court misapplied Maxwell, and (2) the only competent evidence showed the assessments were manifestly or grossly unjust and therefore approval of the RA amounted to an abuse of discretion within the scope of Maxwell.
The Malones first assert the trial court incorrectly construed Maxwell to require that, as a prerequisite to a court's declaration invalidating a special assessment, the plaintiff must show the members of the local agency that adopted the assessment engaged in some form of fraud or misconduct. The trial court below held a claim falls within Maxwell's exception when there is evidence of a "higher level of culpability on the part of [the local agency]." The Malones appear to argue that Maxwell does not impose that requirement but instead contains language permitting a court to invalidate the assessment even without evidence of misconduct. We conclude the trial court correctly construed Maxwell. The Maxwell court held that, although an agency's decision to create an assessment district is generally not subject to collateral attack, this general rule would not bar equitable relief if the plaintiff alleged, as did the plaintiff in Maxwell, there was evidence outside of the record showing the local agency engaged in misconduct amounting to fraud. (Maxwell, supra, 53 Cal.2d at p. 277.) Although the Malones' argument appears to rely on the language in Maxwell suggesting equitable relief would also be available if the local agency imposed a manifestly or grossly unjust assessment or engaged in arbitrary or unreasonable action amounting to an abuse of discretion (id. at pp. 277-278), this language was dicta as Maxwell specifically noted it was unnecessary to decide whether a cause of action for equitable relief was stated based on those latter allegations because the plaintiffs had brought themselves within the fraud exception to the general rule against collaterally attacking the local agency's action. (Id. at pp. 281-282.)
Moreover, although the Malones appear to assert relief is available under Maxwell merely on proof of an arbitrary action or abuse of discretion by the agency without concomitant proof of misconduct, the Maxwell court explained and qualified the arbitrary action or abuse of discretion exception when it noted that, under those exceptions, the assessment must be sustained unless the evidence showed the agency " 'refused to decide upon the merits . . . [and] instead thereof it willfully based its order upon illegal considerations . . . which in effect amounted to a fraud upon the rights of the plaintiff.' " (Maxwell, supra, 53 Cal.2d at pp. 281-282 & fn. 3.) We agree with the trial court that a plaintiff who has not pursued an administrative mandamus action in compliance with the applicable procedures and limitations may rely on Maxwell to attack a local agency's assessment only where there is evidence outside the ordinary administrative record showing some form of culpable misconduct by the agency when it took the challenged action.
The trial court concluded the Malones had failed to show, by a preponderance of the evidence, that Poway's approval of the assessment was the result of culpable misconduct (within the meaning of Maxwell) rather than based on the evidence considered by the city council, and therefore found against the Malones' Maxwell-based challenge. Although the Malones assert there is no evidentiary support for this conclusion, their appellate brief contains no citation of any unrebutted evidence of culpable misconduct. To the contrary, a reputable independent firm (Harris and Associates) with expertise in the area of evaluating the financing of public infrastructure improvements was retained to evaluate the appropriate amount to charge each new unit benefitted by the sewer improvements. The Harris evaluation used the systems approach, a commonly acceptable method of assessing an appropriate amount to charge to the benefitted parcels, to reach a per unit assessment for dividing the costs among the benefitted units. The amount ultimately assessed to the Malones on a per unit basis was approximately $5000, which Poway's City Engineer concluded was a fair and reasonable amount to charge.
The Malones assert on appeal the city engineer's opinion testimony was incompetent because it lacked any foundation. However, on appeal, the Malones have not directed our attention to where in the record they objected to the testimony (for lack of foundation) or the court's ruling. Failure to object below waives any claim of error from the admission of evidence (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 662), and we do not further consider the Malones' argument as to the admission of this evidence.
Because Poway's city council considered and approved an RA that used an appropriate methodology to impose an assessment in an amount within the bounds of a reasonable charge, and there is no evidence the Malones lodged contemporaneous objections raising significant obstacles or problems to the RA (apart from the methodology or amount) ignored by Poway's city council when it approved the RA, the evidence supports the trial court's judgment that there was no evidence to support the Malones' claim of misconduct by Poway's city council within the meaning of Maxwell.
D. Denial of the Motion to Amend Was Not an Abuse of Discretion
After trial, the Malones moved to amend their complaint, alleging that amendment was proper to conform to proof at trial. The substantive effect of the proposed amended complaint was to abandon the Malones' theory the RA was invalid because of misconduct by Poway's city council within the meaning of Maxwell, and to replace it with two new theories for invalidating the approval of the RA: the RA should have been rejected by Poway's city council for violating Poway Municipal Code section 13.24.030 because it was submitted after work on the sewer system commenced; and the RA should have been rejected by Poway's city council because the use of the systemic rather than segmental methodology for determining the amounts charged to each parcel violated Poway Municipal Code section 13.24.040's requirement that the amount assessed to each parcel bear a reasonable relationship to the benefit conferred on the parcel. The trial court denied the motion to amend.
We conclude the trial court's order denying the Malones' motion to amend to conform to proof was not an abuse of discretion. A motion to amend to conform to proof is within the discretion of the trial court and its ruling will not be reversed absent an abuse of discretion. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.) Posttrial amendments should not be allowed when new and substantially different issues would be introduced into the case, against which issues the adverse party had no opportunity to defend or that would otherwise be prejudicial to the adverse party. (Lavely v. Nonemaker (1931) 212 Cal. 380, 385; McNamara v. Steckman (1927) 202 Cal. 569, 572.)
Both of the proposed new theories--whether Poway's city council improperly approved the RA because it was untimely or because the RA imposed an unfair amount for each property--involved matters that could have been raised (in the case of the alleged untimeliness) at the time the city council considered its resolution to adopt or reject the RA, or were in fact raised (as to the methodology employed and the amount assessed) and resolved adversely to the Malones at the time the city council adopted the RA. Either of those claims would present issues for the city council to resolve in its quasi-adjudicatory administrative decision making capacity after holding a noticed hearing (Poway Municipal Code § 13.24.050) at which it was required to make numerous factual determinations (id. at § 13.24.060). Because the decision on both untimeliness and the assessed amount involved application of existing rules to a specific set of facts, rather than the formulation of general rules to be applied to all future cases presented, it represented a quasi-adjudicatory administrative decision by a local agency (McGill v. Regents of University of California, supra, 44 Cal.App.4th at p. 1785), and therefore the exclusive avenue for judicially challenging the city council's decision to approve the RA was by a petition for administrative mandamus raising the alleged untimely application or alleged unfair apportionment of costs. (Saad v. City of Berkeley, supra, 24 Cal.App.4th at p. 1211.) Accordingly, an amendment to conform to proof to raise new theories would have prejudiced Poway by eliminating its ability to marshal evidence (e.g., the administrative record on which its city council relied when it decided to approve the RA) and to interpose the statute of limitations defense under Code of Civil Procedure section 1094.6, subdivision (a).
The Malones did not, and because of the expiration of the limitations period could not, pursue a petition for administrative mandamus and, by framing their challenge as coming under Maxwell, were able to obviate the defenses available to Poway in such a proceeding. Only after the trial court announced its tentative decision would be adverse to their position did the Malones seek to abandon their Maxwell claim and interpose the new theories. In Trafton v. Youngblood, supra, 69 Cal.2d 17, the court was presented with an analogous effort. In Trafton, the defendant (an attorney) received settlement funds on behalf of his client and retained $6800 to satisfy his attorney fees bill. When the client filed suit against the attorney to recover the $6800, the attorney defended by claiming there had been an account stated in the amount of $6800. After trial, the trial court issued a written decision in favor of the client that, in part, rejected the attorney's account stated defense. (Id. at pp. 20-23.) On appeal, the attorney argued his pleading and evidence encompassed a claim that he was entitled to retain a portion of the funds measured by the reasonable value of his services, and asserted the trial court abused its discretion by denying him leave to amend to raise this claim. The Trafton court, affirming the ruling against the attorney's posttrial motion, explained at pages 29 to 32:
"It is manifest to us that defendant deliberately pursued the trial tactic of asserting his claim for fees and costs as an account stated, so that the court would not determine their reasonableness but on the contrary would have to accept the asserted balance as already agreed to and no longer subject to judicial review or reevaluation. Only after the court filed its memorandum of decision and defendant realized that his defense tactics had backfired, did he then seek to change them so as to assert a defense which he had disclaimed and to seek the court's determination of a matter which theretofore he had carefully avoided being adjudicated. In short, having designedly tried the case on one theory, defendant, upon learning that he had lost, sought to reopen it on another in the hope of averting the inevitable adverse judgment. To the device which he invoked to attain this objective, we now turn our attention.
"Defendant's . . . contention is that leave should have been granted by the trial court in order to permit him to amend the answer so as to specifically plead an offset for the reasonable value of his services rendered and costs advanced. . . . [Defendant asserts that he . . . moved to amend . . . to conform to the proof and that the court erred in denying his motion. [¶] . . . [¶] As we said in Lavely v. Nonemaker[,supra, ] 212 Cal. 380, 385 . . ., 'amendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend. [Citations.]' [Citations.] [¶] During the trial of this cause defendant at no time raised an issue as to the reasonable value of his services and costs. Quite the contrary, he renounced any such issue. . . . [¶] The record clearly shows that the issue of reasonableness of services, by the explicit agreement of the parties, was not before the court. It is manifest, therefore, that the allowance of defendant's purported amendment to conform to the proof would have substantially prejudiced Trafton who had had no opportunity to offer evidence on such issue during the trial. [¶] We therefore conclude that the trial court did not abuse its discretion in rejecting the amendment."
Here, the Malones' pleading was limited to seeking relief under Maxwell, thereby obviating numerous potential defenses (e.g., the deference a court must accord to a quasi-adjudicatory administrative decision by a local agency, the statute of limitations defense under Code Civ. Proc. § 1094.5, and the potential application of Gov. Code, § 66020's procedures) and the Malones declined the court's earlier invitation to file an amended pleading that might have triggered those issues. (See fn 7, ante.) Only after it became apparent that this strategy had been unsuccessful did the Malones seek leave to alter their theories. Under Trafton, we conclude the trial court's denial of the Malones' motion for leave to amend was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. Poway shall recover its costs on appeal.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.