Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CV 406269
Banke, J.
I. Introduction
Michael John Walton appeals, in pro per, from a judgment denying his amended petition for writ of mandate challenging resolutions passed by the Lake County Board of Supervisors (Board) authorizing the sale of certain tax-defaulted properties owned by Walton. Walton’s opening brief is not a model of clarity, but his principal contentions appear to be (1) the trial court abused its discretion in ordering an expedited briefing schedule and trial date and (2) the time to enforce the unpaid improvement bonds on the defaulted properties had expired under Streets and Highway Code section 3115 and therefore the Board erred in authorizing the sale of the properties. We conclude the trial court acted well within its discretion in issuing the expedited scheduling order and the limited record Walton has provided on appeal does not begin to establish any abuse of discretion by the Board in passing the challenged resolutions. We therefore affirm the judgment.
II. Background
On March 8, 1976, the Board of Directors of Lake County Sanitation District adopted Resolution of Intention No. 76-83, relating to the acquisition and construction of public improvements in Assessment District No. 1-4 pursuant to the Municipal Improvement Act of 1913 and providing for the issuance of serial bonds pursuant to the Improvement Bond Act of 1915. Notice of the assessments was duly given, and on March 28, 1977, the Board of Directors issued Resolution No. 77-112, determining which assessments had been paid in cash, which assessments remained unpaid and issuing bonds for those assessments in accordance with the Improvement Bond Act of 1915 (Division 10 of the Streets and Highways Code). The authorized bonds, “Series A, ” were to have an issuance date of April 2, 1977.
On October 9, 1984, the Board of Directors of Lake County Sanitation District adopted Resolution of Intention No. 84-381, relating to the acquisition and construction of public improvements in Assessment District No. 1-6 pursuant to the Municipal Improvement Act of 1913 and providing for the issuance of serial bonds pursuant to the Improvement Bond Act of 1915. Notice of the assessments was duly given, and on June 18, 1985, the Board of Directors issued Resolution No. 85-221, determining which assessments had been paid in cash, which assessments remained unpaid and issuing bonds for those assessments in accordance with the Improvement Bond Act of 1915 (Division 10 of the Streets and Highways Code). The authorized bonds, “Series 85-3, ” were to have an issuance date of June 27, 1985.
On April 21, 1987, the Board of Directors of Lake County Sanitation District adopted Resolutions Nos. 87-98 and 87-100, refunding the previously issued “Series 85-3” bonds pursuant to the Refunding Act of 1984 for 1915 Improvement Act Bonds (commencing with section 9500 of the Streets and Highways Code). On April 11, 1996, the Board of Directors adopted a resolution authorizing “Limited Obligation Refunding Improvement Bonds Reassessment and Refunding of 1995” for properties located in Assessment District No. 1-6 subject to the “Series 85-3” bonds.
At its January 24, 2006, meeting, the Board passed, on the consent calendar, Resolution No. 2006-23, authorizing the board chair to direct the tax collector to sell, at Internet auction, numerous properties, including property owned by Walton. At its November 21, 2006, meeting the Board similarly passed, on the consent calendar, Resolution No. 2006-216, authorizing the board chair to direct the tax collector to sell, at Internet auction, numerous properties, including additional parcels owned by Walton. At its November 18, 2008, meeting the Board passed, on the consent calendar, Resolution No. 2008-204, authorizing the board chair to direct the tax collector to sell, at Internet auction, numerous properties, including parcels owned by Walton.
On December 19, 2008, the Lake County Tax Collector gave notice to Walton of an Internet sale scheduled for February 7, 2009, through February 10, 2009.
During this period of time, Walton had filed multiple bankruptcy petitions-in December 1995, in June 1998, in October 2002, in April 2006, and in January 2007-which had suspended sales of the defaulted properties. No stays were in effect at the time of the scheduled February 2009 sale.
On February 6, 2009, one day before the scheduled sale, Walton filed the instant action, seeking a writ of mandate challenging the sale authorizations by the Board and seeking cancellation of the bonds and recalculation of the assessments owed on his properties. The named respondents, the County of Lake and the Lake County Tax Collector (Sandra Kacharos), filed a demurrer, which was dropped from the calendar when Walton filed an amended petition on April 15, 2009.
The named respondents, now the County of Lake, the Lake County Sanitation District, the Lake County Auditor and Controller, the Lake County Assessor, and the Lake County Tax Collector (Sandra Kacharos)-filed an answer to the amended petition denying the substantive allegations and then filed an ex parte request for an expedited briefing schedule and trial date on the ground the time to enforce some of the bonds underlying the assessments would expire September 2, 2009. At a hearing on June 18, 2009, at which Walton appeared, the court granted the request, set a briefing schedule and ordered trial on July 28, 2009. Walton, who had objected to the briefing schedule and trial date, subsequently filed an ex parte application for an order shortening time to hear a motion for “reconsideration” of the court’s scheduling order on the grounds the “government, ” specifically the City of Clearlake, was retaliating against him by asserting the sanitation on his property and its use as a business were illegal. Walton claimed this entitled him to present an “unclean hands” defense to the scheduling order. The court denied Walton’s application to shorten time. Two days later, Walton filed the motion for “reconsideration, ” with a hearing date of August 3, 2009.
Walton failed to file a trial brief in accordance with the briefing schedule. Respondents timely filed their brief on July 17, 2009. Walton also did not file a reply brief.
On July 22, 2009, Walton moved to amend his amended petition for writ of mandate. He wanted to add the Lake County Superior Court as a respondent because every judge was an employee of “defendants” and their conduct thus “constitute[d] a cause of action.” This motion carried a hearing date of August 17, 2009. Walton also filed a “peremptory challenge” to every judge on the Lake County Superior Court.
The trial court treated Walton’s “challenge” as a “statement of disqualification” and on August 3, 2009, reassigned the matter to another department. On August 5, 2009, the newly assigned judge denied Walton’s “challenge” and continued the motions for reconsideration and to amend to August 11, 2009.
On August 11, 2009, the trial court heard all pending matters. Walton withdrew his motion to amend his amended petition, and the court denied his motion for reconsideration of the scheduling order. The court also denied as untimely a motion for “judgment on the pleadings” Walton proffered the day of the hearing. The court then proceeded to hear the trial, which consisted of the submission of documentary evidence and arguments by the parties. On August 13, 2009, the court issued its ruling from the bench denying the amended petition and on August 14, 2009, filed its written judgment in favor of respondents. Walton filed a timely notice of appeal on October 13, 2009.
III. Discussion
Nature of Writ Petition, Standard of Judicial Review and Burden of Proof
The parties have exhibited some uncertainty as to the nature of Walton’s writ petition-that is, whether Walton sought ordinary mandamus relief under Code of Civil Procedure section 1085 or administrative mandamus under section 1094.5. Administrative mandamus applies when three statutory criteria are met: (1) a hearing in the underlying administrative proceeding was required by law; (2) evidence was required to be taken at the hearing; and (3) discretion in the determination of contested factual issues was vested in the administrative tribunal. (§ 1094.5; O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 585 (O.W.L.).) It is thus often said administrative mandamus applies to adjudicatory or quasi-judicial administrative decisions. (See Exxon Mobil Corp. v. Office of Environmental Health Hazard Assessment (2009) 169 Cal.App.4th 1264, 1276, fn. 10 (Exxon Mobil).) When all three statutory criteria of administrative mandamus are not met, review of a challenged governmental or administrative action must be by way of ordinary mandamus. (See O.W.L., supra, 168 Cal.App.4th at p. 585.) Thus, ordinary mandamus generally applies to legislative actions and to ministerial administrative actions. (See Exxon Mobil, supra, 169 Cal.App.4th at p. 1276, fn. 10.)
All further statutory references are to the Code of Civil Procedure.
Here, Walton’s petition was precipitated by the Board’s adoption of Resolution No. 2008-204, authorizing the board chair to direct the tax collector to sell numerous properties on which taxes and assessments were owed, including property owned by Walton. This was not an adjudicatory decision, let alone an adjudicatory decision meeting the three requirements for review by way of administrative mandamus under section 1094.5. There was not, for example, any requirement that the Board take evidence at the meeting, nor was this a situation where the Board was called upon to determine contested facts and exercise its discretion in conjunction therewith.
“In traditional mandamus actions, the agency’s action must be upheld upon review unless it constitutes an abuse of discretion.” (O.W.L., supra, 168 Cal.App.4th at p. 585, citing Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 230.) “ ‘When reviewing the exercise of discretion, “[t]he scope of review is limited, out of deference to the agency’s authority and presumed expertise: ‘The court may not reweigh the evidence or substitute its judgment for that of the agency. [Citation.]’ ” [Citation.] “In general... the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support....” [Citation.] When making that inquiry, the “ ‘ “court must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” [Citation.]’ ” [Citation.]’ [Citation.]” (O.W.L., supra, 168 Cal.App.4th at pp. 585-586, quoting American Board of Cosmetic Surgery v. Medical Board of California (2008) 162 Cal.App.4th 534, 547-548, fn. omitted; accord, SN Sands Corp. v. City and County of San Francisco (2008) 167 Cal.App.4th 185, 191 (SN Sands) [judicial review in ordinary mandamus proceeding “ ‘ “is limited to an examination of the proceedings before the agency to determine whether its actions have been arbitrary and capricious, entirely lacking in evidentiary support, or whether it failed to follow proper procedures or failed to give notice as required by law” ’ ”]; Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1004 (Neighbors in Support).) “ ‘Although the traditional formulation articulated in the mandate cases [citations] does not specifically include “unlawful or contrary to established public policy, ” it [also] cannot be doubted the mandate cases would authorize judicial intervention’ where the challenged action was ‘shown to be unlawful or indisputably contrary to established public policy.’ ” (Neighbors in Support, supra, at p. 1004, quoting Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal.App.3d 368, 386.)
The burden of proof to establish an abuse of discretion in an ordinary mandamus proceeding is, of course, on the petitioner. (Branciforte Heightsm, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914, 934.) Accordingly, Walton had the burden of establishing an abuse of discretion by the Board in adopting the challenged resolution authorizing the sale of his properties to satisfy the unpaid assessments.
The standard of review applied by an appellate court in an ordinary mandamus action often is the same as the standard applied by the trial court. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361 [reviewing court exercises “independent judgment” in determining whether the agency action was “consistent with applicable law”]; SN Sands, supra, 167 Cal.App.4th at p. 191; Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 145 [“because ‘trial and appellate courts perform the same function in mandamus actions, an appellate court reviews the agency’s action de novo.’ ”].) In some mandamus proceedings, the trial court is called upon to make findings of fact. In such cases, “ ‘the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed.’ [Citation.]” (California Correctional Supervisors Organizations, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 827.)
Respondents’ Answer to the Petition Did Not Need to Be Verified
We address the issues Walton raises on appeal in the order the alleged errors occurred in the trial court, or in other words, in procedural order. Since Walton’s petition for a writ of mandate was a verified pleading, he contends the respondents’ answer also had to be verified. While the general rule is that a pleading that responds to a verified pleading, including a writ petition, must also be verified (§§ 446, subd. (a), 1089), there is a statutory exception for responsive pleadings filed by governmental entities and government officers and employees sued in their official capacities. (§ 446, subd. (a); see Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d 334, 342 [verification exception for public entities and officials provided by section 446, subdivision (a), applies to answers in writ proceedings].)
Accordingly, there is no merit to Walton’s argument that respondents’ answer was required to be verified. Moreover, Walton made no challenge to respondents’ answer before trial and thereby waived any objection to the lack of a verification. (See Ware v. Stafford (1962) 206 Cal.App.2d 232, 237.)
The Trial Court Acted Well within Its Discretion in Setting an Expedited Briefing Schedule and Trial Date
Walton also challenges the trial court’s order setting an expedited briefing schedule and trial date. A trial court has the inherent power to efficiently manage its calendar, and we review calendaring orders, like that challenged by Walton here, solely for a manifest abuse of discretion. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [“courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them”]; Walker v. Superior Court (1991) 53 Cal.3d 257, 267 [“courts have inherent authority to control their own calendars and dockets”].)
The trial court acted well within its discretion in setting an expedited briefing schedule and trial date. As of the date of the scheduling and trial setting order, six months had passed since the passage of the last of the Board’s resolutions which are the basis of Walton’s writ petition, and trial was set out another month and a half. Walton thus had adequate time to prepare his case. Furthermore, respondents claimed any delay of trial beyond September 2 would impair the tax collector’s ability to sell the defaulted property. The trial court therefore had sound basis for its scheduling order, and we reject Walton’s argument that he was unfairly subjected to an expedited briefing schedule and trial date.
Appellant Failed to Carry His Burden of Proof
Turning to the substantive arguments Walton advances on appeal, we conclude he has not provided an appellate record that even begins to support any of his claims of error.
In the trial court, Walton tendered five documents as the “evidence” supporting his request for mandamus relief: (1) the “administrative record” which consisted of copies of Resolution No. 98-57 and the minutes of the Board meeting at which it was passed, Resolution No. 2006-23 and the minutes of the Board meeting at which it was passed, Resolution No. 2006-216 and the minutes of the Board meeting at which it was passed, and Resolution No. 2008-204 and the minutes of the Board meeting at which it was passed; (2) a notice of assessment; (3) another notice of assessment; (4) a declaration and pages of a transcript; and (5) a document entitled “comparative market analysis.”
Exhibits (1), (2) and (3) were admitted into evidence. The trial court sustained the respondents’ objections to Exhibits (4) and (5). Walton makes no challenge to the trial court’s evidentiary ruling on appeal, and accordingly, has waived any issue in this regard. (See People v. Rundle (2008) 43 Cal.4th 76, 121 [where appellant failed to renew arguments made in trial court on appeal, arguments were waived], overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 844 & fn. 3 [although appellant’s opening brief on appeal characterized many of the trial court’s rulings as erroneous, it failed to present argument (with citation to appropriate legal authorities) that rulings were erroneous; accordingly, appellant forfeited all such contentions].)
As the appellant, Walton has the burden of providing this court with a record on appeal supporting his claims of error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [“a party challenging a judgment has the burden of showing reversible error by an adequate record”]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [“appellant... has not met her burden of showing error by an adequate record”]; see also Cal. Rules of Court, rule 8.204(a)(1)(C).) While Walton designated a lengthy clerk’s transcript on appeal, he did not designate as part of the record his three exhibits the trial court admitted into evidence. His Exhibit (1) is before us, but only because the respondents asked that the “administrative record” be transmitted to this court.
Accordingly, in determining whether Walton carried his burden of proof to establish the propriety of mandamus relief, our review is confined to Exhibit (1). As noted above, Exhibit (1) consists solely of copies of Resolution No. 98-57 and the minutes of the Board meeting at which it was passed, Resolution No. 2006-23 and the minutes of the Board meeting at which it was passed, Resolution No. 2006-216 and the minutes of the Board meeting at which it was passed, and Resolution No. 2008-204 and the minutes of the Board meeting at which it was passed. These documents do not even remotely suggest the Board abused its discretion in any way by passing the challenged resolutions authorizing the county tax collector to conduct a sale of the defaulted properties. Accordingly, Walton has failed to carry his burden on appeal to demonstrate error in the denial of his writ petition.
IV. Disposition
The judgment is affirmed.
We concur: Margulies, Acting P. J.Dondero, J.