Judge: Mark A. Young, Case: 23SMCP00421, Date: 2023-11-22 Tentative Ruling

Case Number: 23SMCP00421    Hearing Date: April 10, 2024    Dept: M

CASE NAME:           Prang, et al., v. AAB, et al.

CASE NO.:                23SMCP00421

MOTION:                  Demurrer to the First Amended Petition

HEARING DATE:   4/10/2024

Legal Standard

            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

Analysis

Request for Judicial Notice

Real Parties-in-Interest Hooshang Sean Namvar, Shiva Nataly Hornnian and Believers LLC’s (“RPIs”) request judicial notice of 1) The People of the State of California, v. Schenter; 2) Notice of Board Action; 3) Assessment Appeals Board Rules; 4) Claim for Refund; 5) Hearing Transcript; and 6) Petition for Writ of Mandamus, Hooshang Namvar v. County of Los Angeles Assessment Appeals Board, 20SMCP00257. These documents are either court records (Evid. Code § 452(d)), or administrative records (§ 452(c)). The request is therefore GRANTED.

Demurrer

Petitioner Jeffrey Prang, as the Los Angeles County Assessor, seeks a writ of mandate, pursuant to Code of Civil Procedure (CCP) sections 1085, 1094.5 and Rev. & Tax. Code section 1615, directing the Los Angeles County Assessment Appeals Board No. 6 (the “Board”) to reverse its finding that Petitioner was bound by, and the Board was without authority to reconsider, Petitioner’s value recommendation of $3,774,000 and to schedule a hearing on appeal application number 2012-006911 to determine the base year value of the Subject Property (416 North Rockingham Avenue, Los Angeles, CA, 90049) as of April 20, 2007. (FAP p. 1.) Petitioner challenges this determination because a former member of the Petitioner’s staff corruptly and fraudulently lowered the assessed value of the Property in exchange for bribes. (Id.)   The RPIs demur to the First Amended Petition, asserting that the claims are time barred and fail to state a claim.

Statute of Limitations for Writ of Mandate Under Section 1094.5

As to the writ of mandate under section 1094.5, the Petition is barred by the applicable statute of limitations. A demurrer on the grounds of the statute of limitations does not lie where the complaint merely shows that the action may be barred. (Valvo v. University of Southern California (1977) 67 Cal. App. 3d 887, 895.) Instead, the complaint must affirmatively, upon the facts stated, show that the right of action is necessarily barred. (Ibid.) If on the face of the complaint the action appears barred by the statute of limitations, then a plaintiff has an obligation to anticipate the defense and plead facts to demonstrate that the statute of limitations does not bar the claim.  (Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.)

CCP section 1094.6 provides for 90 days to file a section 1094.5 petition concerning judicial review of any decision of a local agency, such as the Board. (CCP §1094.6(a)-(b).) CCP section 1094.6 provides, in relevant part, “[j]udicial review of any decision of a local agency . . . may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section.”  (CCP § 1094.6 (a).) “Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final.”  (§ 1094.6(b).)

The Board made its final decision on February 9, 2023. (FAP ¶ 28.) Petitioner therefore had 90 days from the final decision (May 10, 2023) to file this Petition. This petition was untimely filed on July 31, 2023, approximately six months and three weeks after the final decision. Accordingly, the demurrer is GRANTED without leave to amend as to the section 1094.5 writ claim.

Statute of Limitations for Writ of Mandate Under Section 1085

RPIs fail to demonstrate that the FAP’s allegations demonstrate that a traditional mandamus claim would be barred by the statute of limitations. RPIs argue that since the writ under section 1094.5 is barred by section 1094.6, that the writ under section 1085 is likewise barred. This does not follow and the cited authority does not support this proposition. (See Morton v. Bd. of Registered Nursing, (1991) 235 Cal. App. 3d 1560, 1566-1567 [held that the traditional mandate claim under section 1085 was not the appropriate vehicle to challenge an agency's discretionary quasi-judicial disciplinary action, the appropriate vehicle would be for an administrative mandate under section 1094.5, and the statute of limitations barred the section 1094.5 writ]; Beach & Bluff Conservancy v. City of Solana Beach, (2018) 28 Cal. App. 5th 244, 257-263 [similarly, a challenge to the Commission’s quasi-judicial certification decision must be brought as a section 1094.5 writ as expressly required by Pub. Res. Code § 30801, and not traditional mandamus under section 1085].) These cases do not suggest that an otherwise proper section 1085 writ would be barred where a petitioner failed to timely bring writ under section 1094.5. Here, Rev. & Tax. Code section 1615 would provide a 6-month time limit to bring this action. It is not reasonably in dispute that this action was brought within that 6-month period. Further, RPIs fail to explain why the amended Petition would not relate back to the original petition that initiated this action within 6 months of the final determination.

RPIs cite no other argument or authority which would show that a section 1085 writ would be time-barred here. RPIs otherwise do not argue that the section 1085 claim would substantively fail to state a claim for traditional mandamus.

Accordingly, the demurrer is OVERRULED as to this claim.

Review under Rev. & Tax Code § 1615

RPIs argue that section 1615 claim substantive fails. Indeed, this section does not provide any affirmative cause of action or relief. By its express terms, Section 1615 only precludes government officials or agencies from bringing any actions or proceedings after six months from a decision of the County Board of Equalization or an Assessment Appeals Board. Therefore, there can be no cause of action stated under section 1615. Accordingly, the demurrer is SUSTAINED without leave to amend as to this cause of action.

Other Issues

RPIs other contentions about the Petition or the truth of the underlying facts are not applicable to the instant demurrer. For example, RPIs do not demonstrate that they were actually entitled to a series of “controlling litigation” letters from the Assessor’s Office such that the instant claims would fail. (See 18 CCR 309(e); United Enterprises, Ltd v. Assessment Appeals Bd (1994), 22 Cal. App. 4th 152.) RPIs also do not explain how any purported failure to send these letters would affect the validity of the instant writ concerning the February 2023 Board determination. The undisputed record shows that any issue with delays in the Board hearing were waived by RPIs’ stipulation that the Board would have authority to determine the issue. (See FAP ¶ 21.) At best, RPIs’ argument might support RPIs’ writ concerning their amount of their property taxes while the appeals were pending, but not the validity of Petitioner’s writs before the Court.  The Court also would not find Petitioner’s request for findings of fact a prerequisite to this writ. It is undisputed that the Board enumerated findings of fact.