Filed 3/22/21 Elder-Evins v. County of Sonoma CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ANNETTE SHARLENE ELDER-
EVINS,
Plaintiff and Appellant, A159318
v. (Sonoma County
COUNTY OF SONOMA, Super. Ct. No.
Defendant and Respondent. SCV-261282)
Appellant Annette Sharlene Elder-Evins (Appellant) appeals following
the trial court’s grant of a motion for judgment on the pleadings filed by
respondent County of Sonoma (Respondent). We remand with directions that
the trial court allow Appellant to file an amended complaint alleging a tax
refund cause of action under Revenue and Taxation Code section 5140 et
seq.1
BACKGROUND
In September 2017, Appellant filed the present action against Tuan
Phan and Respondent (as well as Doe defendants). The action followed
Respondent’s sale of Appellant’s real property on Leddy Avenue in the City of
Santa Rosa (Property) to Phan at public auction, due to unpaid taxes.
1All undesignated statutory references are to the Revenue and Taxation
Code.
1
Appellant alleged that the sale was based on erroneous tax assessments
made in 2009 and 2010 and that she had unsuccessfully sought cancellation
of the assessments. The complaint included a quiet title cause of action that
alleged Appellant is entitled “to equitable relief declaring her to be the title
owner of record of the Property and quieting [her] title therein against the
claim of defendant Phan.” The complaint also included a declaratory relief
cause of action seeking a declaration that Appellant “is the true and rightful
owner of the Property.”
In May 2019, Respondent moved for judgment on the pleadings. In
September, the trial court entered an order sustaining Respondent’s motion
without leave to amend.2 The court concluded the quiet title cause of action
was moot because it was undisputed at the time of the ruling that
Respondent had rescinded the tax sale and neither Respondent nor Phan
claimed an interest in the Property.3 The court also concluded Appellant’s
quiet title claim failed as to Respondent because the only basis for the claim
was Appellant’s assertion the taxes were improper, and the procedure to
raise that claim is a refund action following payment of the taxes. The trial
court held Appellant’s declaratory relief claim against Respondent failed for
the same reason—Appellant’s claim could only be adjudicated in a refund
action.
Appellant moved for reconsideration of the trial court’s order or, in the
alternative, relief from the judgment. The court denied the motion in
2 Respondent also sought summary judgment, but the trial court denied that
motion because Respondent failed to submit a separate statement of material
facts or any evidence.
3 Appellant does not challenge that aspect of the trial court’s ruling, nor does
she challenge the court’s entry of judgment in Phan’s favor in September
2019. Phan is not involved in the present appeal.
2
December 2019. Among other things, the court concluded Appellant had not
presented new facts or law not previously considered by the court.
The present appeal followed.
DISCUSSION
“ ‘A motion for judgment on the pleadings serves the function of a
demurrer, challenging only defects on the face of the complaint.’ [Citation.]
. . . We exercise our independent judgment in determining whether the
challenged complaint states a cause of action. [Citation.] ‘In the case of
either a demurrer or a motion for judgment on the pleadings, leave to amend
should be granted if there is any reasonable possibility that the plaintiff can
state a good cause of action.’ ” (Eckler v. Neutrogena Corp. (2015) 238
Cal.App.4th 433, 439.)
Appellant contends the trial court erred in granting Respondent’s
motion for judgment on the pleadings without leave to amend. She does not
argue the trial court erred in concluding her quiet title cause of action is
moot. Instead, she argues the court erred in concluding the tax assessments
at issue (for nuisance abatement at the Property) could only be challenged in
a refund action. And, in the alternative, she argues she should be granted
leave to amend to allege a refund cause of action. We conclude the trial court
did not err in concluding a refund action is the appropriate method to
challenge the tax assessments, but we remand with instructions that
Appellant be granted an opportunity to amend her complaint.
3
I. Appellant Has Not Shown the Trial Court Erred in Concluding Her
Claim Had to be Brought as a Refund Action
The trial court concluded Appellant’s complaint failed to state a claim
for declaratory relief because Appellant was required to pursue relief in a
refund action. We agree.4
Section 4807 bars actions interfering with the collection of property
taxes, providing, “No injunction or writ of mandate or other legal or equitable
process shall issue in any suit, action, or proceeding in any court against any
county, municipality, or district, or any officer thereof, to prevent or enjoin
the collection of property taxes sought to be collected.” Instead, a party
seeking to challenge the validity of a tax must pay the tax and then file a
refund action; this is known as the “ ‘pay first, litigate later’ doctrine.”
(California State University, Fresno Assn., Inc. v. County of Fresno (2017) 9
Cal.App.5th 250, 263 (CSU Fresno).)
In the present case, the parties agree the taxes at issue were imposed
by the City of Santa Rosa as assessments for nuisance abatement on the
Property.5 Although Appellant contends the assessments were improper
4 Although the declaratory relief cause of action in the complaint does not
request relief regarding the nuisance abatement cost assessments, we
construe Appellant’s argument on appeal as a request to amend the
complaint to seek such relief.
5 A 2016 unpublished federal decision held that “cities in California cannot
attach liens or impose special assessments to collect outstanding nuisance
fines or penalties,” in contrast to nuisance abatement costs. (Mechammil v.
City of San Jacinto (9th Cir. 2016) 653 Fed. Appx. 562, 565.) Respondent
states that, pursuant to that decision, it “removed the Santa Rosa charges for
penalties and interest from [Appellant’s] property tax roll.” We cannot rely
on that assertion in reviewing the ruling on Respondent’s motion for
judgment on the pleadings. Nevertheless, Appellant’s complaint does not
allege the Property is still subject to penalties associated with the nuisance
4
because the abatement never occurred (see p. 6, post), she does not dispute
that, if the City incurred abatement costs, Government Code section 38773.5,
subdivision (a), authorized it to “make the cost of abatement of a nuisance
upon a parcel of land a special assessment against that parcel.” Subdivision
(c) of that statute provides that “[a]ll laws applicable to the levy, collection
and enforcement of municipal taxes shall be applicable to the special
assessment against that parcel.” (Govt. Code, § 38773.5, subd. (c).) And
section 4801, in the same part of the code as the section 4807 prohibition on
actions interfering with tax collection, provides that “As used in this part,
‘taxes’ includes assessments collected at the same time and in the same
manner as county taxes.” Respondent argues these various provisions,
considered in combination, require any challenge to a nuisance abatement
assessment to be brought as a refund action. We agree.
The decision in Kahan v. City of Richmond (2019) 35 Cal.App.5th 721,
is instructive. At issue in that case was the City of Richmond’s “ ‘special
assessment’ lien against [a] property for unpaid garbage collection fees.” (Id.
at p. 727.) The court of appeal concluded the “delinquent garbage fees” were
subject to the refund action procedures. (Id. at pp. 737–738.) The court
emphasized the broad definition in section 4801 and noted that Government
Code section 25831, subdivision (d), provided that the fees “may be collected
at the same time and in the same manner as ordinary county ad valorem
property taxes are collected . . . .” (Kahan, at p. 737.) The court of appeal
held the plaintiff “failed to state a cause of action because he failed to allege
compliance with the procedures of the Revenue and Taxation Code.” (Kahan,
at p. 738.)
abatement and she does not request leave to amend the complaint to so
allege.
5
To similar effect is the decision in Hanjin Internat. Corp. v. Los Angeles
County Metro. Transportation Auth. (2003) 110 Cal.App.4th 1109 (Hanjin).
The issue there was whether a special benefit assessment for transit was a
tax for the purposes of the statutory time period for filing an administrative
refund claim. (Hanjin, at p. 1112.) The court of appeal concluded it was, in
light of the definition in section 4801 and statutory language in Public
Utilities Code section 33017 providing that the assessments “shall be levied
and collected by the county at the same time and in the same manner as
taxes are levied and collected.” (Hanjin, at p. 1113.)
Appellant argues Kahan is distinguishable because in that case “the
plaintiff did not challenge whether the delinquent garbage fees were
authorized, it challenged the method of collection of those fees by designating
garbage fees as special assessments. [Citation.] [¶] Here, on the other hand,
[Appellant] questions—and has repeatedly questioned—the City’s authority
to designate the costs of abatement as a special assessment when it did not
abate any nuisance on her property.” She also asserts, “For years, her
position has been that the City took no action on her property and incurred
no costs whatsoever.” Thus, Appellant’s claim is a factual dispute regarding
the propriety of the assessment. But Appellant cites no authority such a
claim need not be presented in a refund action. It would fundamentally
undermine the “pay first, litigate later” doctrine if any factual dispute about
the propriety of an assessment were to render the refund action procedure
inapplicable.
To the extent Appellant’s contention is a legal claim that assessments
for nuisance abatement costs are categorically not within the scope of the
section 4801 definition and the refund action requirement, the argument fails
because she provides no reason why the result in the present case on that
6
legal question should differ from that in Kahan. Appellant cites a federal
decision, Bidart Bros. v. Cal. Apple Commission (9th Cir. 1996) 73 F.3d 925,
that addressed whether a fee was a tax for purposes of the federal Tax
Injunction Act (28 U.S.C. § 1341). That court adopted a three-factor test for
making the determination. (Bidart, at p. 931.) However, Appellant cites no
authority that a similar analysis is required in determining the scope of the
section 4807 prohibition. (See Kahan, supra, 35 Cal.App.5th at p. 737 [“even
if the delinquent garbage fees are more appropriately categorized as ‘user
fees’ than assessments, Kahan cites no authority that these distinctions
apply to the Revenue and Taxation Code provisions which govern the
procedures that must be followed in pursuing a refund of a tax or
assessment”].)
Thus, Appellant has not shown she has alleged or can allege a valid
cause of action for declaratory relief against Respondent. (See Rickley v. Cty.
of Los Angeles (2004) 114 Cal.App.4th 1002, 1013 [“ ‘The rule in this state is
that injunctive and declaratory relief will not be granted where there is a
plain, complete, speedy, and adequate remedy at law. [Citation.] . . . Any
remedy that allows a taxpayer to challenge a tax already collected, and to
press any constitutional claims he or she may have, has been found to
constitute “ ‘a plain, speedy and efficient remedy,’ ” barring equitable
relief.’ ”].)
Finally, Appellant devotes substantial briefing on appeal to her
argument that Respondent below mischaracterized the taxes at issue as
property taxes and failed to acknowledge Appellant’s averment that she paid
the challenged assessment the first year. But Appellant has not shown
Respondent’s characterizations of the issues below require reversal of the
trial court’s ruling. And Appellant has not shown a reasonable possibility she
7
can amend her complaint to allege a fraud cause of action against
Respondent or any “civil rights violations.”6
II. Appellant Should be Granted Leave to Amend to Allege a Refund Cause
of Action
In the alternative, Appellant contends she should be granted leave to
amend her complaint to allege a tax refund cause of action. We agree.7
“[T]he Legislature has statutorily established a three-step process for
handling challenges to property tax assessments and refund requests. The
first step is the filing of an application for assessment reduction under section
1603, subdivision (a) . . . . The second step, which occurs after payment of the
tax, is the filing of an administrative refund claim under section 5097,
subdivision (a), which provides in relevant part that ‘[n]o order for a refund
. . . shall be made except on’ the timely filing of a verified claim for refund. . . .
The third and final step in the process is the filing of an action in superior
court pursuant to section 5140, which provides that a person who paid the
property tax may bring an action in superior court ‘against a county or a city
to recover a tax which the board of supervisors of the county or the city
council of the city has refused to refund on a claim filed pursuant to Article 1
(commencing with Section 5096) of this chapter.’ A court action may not ‘be
commenced or maintained . . . unless a claim for refund has first been filed
6 Appellant also contends the trial court erred in denying her motions for
reconsideration and for relief from judgment. But the arguments and
clarifications Appellant offered did not show the causes of action in her
complaint had merit, and she has not explained her failure to present such
matters in her opposition to Respondent’s motion for judgment on the
pleadings. (New York Times Co. v. Superior Ct. (2005) 135 Cal.App.4th 206,
212.)
7 This court obtained supplemental letter briefs from the parties on this
question.
8
pursuant to Article 1 . . . .’ (§ 5142, subd. (a).)” (Steinhart v. County of Los
Angeles (2010) 47 Cal.4th 1298, 1307–1308 (Steinhart); accord CSU Fresno,
supra, 9 Cal.App.5th at pp. 263–265.)
At the outset, we observe Appellant has shown she can amend her
complaint to allege a tax payment that would be the subject of a refund
action. Although Appellant did not allege a refund cause of action in her
complaint, she has consistently maintained throughout the litigation that she
partially paid the contested assessments. For example, in a September 2017
declaration submitted in support of her complaint, Appellant averred she
paid the contested assessment “the first year.” In her September 2019
declaration in support of her motion for reconsideration, she averred she
“paid the County $10,000 for the illegally-assessed fines in 2008.”
In its supplemental brief, Respondent argues any refund action would
be barred because Appellant did not file an administrative refund claim.
(See, e.g., Steinhart, supra, 47 Cal.4th at p. 1308.) In response, Appellant
points to the September 2017 declaration, in which she averred that she
“argued that the charges were without voter approval, or signature or
consent. I constantly objected to the charges and went to several different
agencies yearly seeking to have the validity hearing.” She asserts in her
supplemental brief, “These statements, which are incorporated into the
Complaint, constitute allegations that sufficiently assert exhaustion of
administrative remedies through making a claim with the County for a
refund.” Appellant also attached a document to her letter brief that she
characterizes as “a demand for refund [she] submitted to the City of Santa
Rosa on September 16, 2009.” She asserts she “submitted a similar claim” to
Respondent and she “has documentary evidence and witnesses to help her
show that she repeatedly demanded a refund and directed her requests to
9
various individuals and departments.” Finally, a January 2019 letter to
Appellant from Respondent’s Office of the County Counsel reflects that
Appellant unsuccessfully sought refund of the “nuisance abatement penalties
that were already paid.”8
It is not clear whether any of Appellant’s objections and demands
constituted a timely “claim for refund” within the meaning of section 5142,
subdivision (a) and section 5096 et seq. It is also not clear whether Appellant
was required to file an application for assessment reduction under section
1603, subdivision (a) and, if so, whether she did so. (See Williams & Fickett
v. County of Fresno (2017) 2 Cal.5th 1258; Steinhart, supra, 47 Cal.4th at
p. 1308.) We note Respondent’s supplemental brief flatly asserts, “Appellant
failed to exhaust her administrative remedies pursuant to . . . section 5097
regarding her 2008-2009 property tax payment.” However, Respondent’s
failure to acknowledge and address any of Appellant’s administrative efforts
is puzzling, because Appellant has consistently taken the position that she
repeatedly and unsuccessfully sought relief through administrative channels.
Some of those efforts are reflected in the January 2019 letter from
Respondent’s own Office of the County Counsel, which also represents
Respondent in the present appeal. Thus, Respondent’s supplemental brief
provides no basis to conclude Appellant’s efforts failed to comply with the
statutory requirements.
Absent more specific allegations regarding what actual administrative
steps Appellant took to challenge the tax assessments and obtain a refund,
this court cannot conclusively determine whether Appellant can state a
8We grant Appellant’s June 12, 2020 Request for Judicial Notice of the letter,
but we consider it only as corroboration of Appellant’s assertion that she can
amend her complaint to allege she made a refund claim.
10
viable tax refund action. We conclude, however, that Appellant has
demonstrated a “ ‘reasonable possibility’ ” she can do so. (Eckler v.
Neutrogena Corp., supra, 238 Cal.App.4th at p. 439; see also Sanai v. Saltz
(2009) 170 Cal.App.4th 746, 768, quoting Lemoge Electric v. County of San
Mateo (1956) 46 Cal.2d 659, 664 [“ ‘Great liberality should be exercised in
permitting a plaintiff to amend.’ ”].) We remand with directions that the trial
court provide Appellant an opportunity to file an amended complaint alleging
a refund cause of action. The viability of such an amended complaint may be
determined in further proceedings below.9
DISPOSITION
The trial court’s judgment is reversed insofar as it precludes Appellant
from filing an amended complaint alleging a refund cause of action under
section 5140 et seq., and the matter is remanded to provide Appellant an
opportunity to plead such a cause of action. In all other respects, including
dismissal of the quiet title and declaratory relief causes of action in
Appellant’s complaint, the judgment is affirmed. The parties shall bear their
own costs on appeal.
9 Appellant argues Respondent waived any defenses or is judicially estopped
from asserting defenses based on her non-compliance with statutory
requirements for presenting refund claims. However, given that the
complaint did not allege a section 5140 refund cause of action, Respondent
could not have been expected to argue Appellant’s failure to comply with
statutory prerequisites for such an action in its motion for judgment on the
pleadings.
11
SIMONS, Acting P.J.
We concur.
BURNS, J.
SELIGMAN, J.*
(A159318)
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
12