Judge Mark A. Young, Case Number: 24SMCP00303, Date: 2025-02-27 Tentative Ruling

Judge: Mark A. Young, Case: 24SMCP00303, Date: 2025-02-27 Tentative Ruling

Case Number: 24SMCP00303 Hearing Date: February 27, 2025 Dept: M

CASE NAME: Namvar, et al., v. Los Angeles County Assessor’s Office, et al.

CASE NO.: 24SMCP00303

MOTION: Demurrer to the Petition

HEARING DATE: 2/27/25

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.)

REQUEST FOR JUDICIAL NOTICE

Petitioners’ request for judicial notice is GRANTED.

ANALYSIS

Respondents Los Angeles County Assessor, Los Angeles County Treasurer and Tax Collector and Los Angeles County Auditor Controller demur to Petitioners Hooshang Sean Namvar’s and Nataly Shiva Namvar’s Petition for Writ of Mandate. Respondents assert that each claim for mandamus fails because Petitioners’ sole remedy is a tax refund action pursuant to Rev. & Tax. Code section 5140. Section 5140 states in full:

The person who paid the tax, his or her guardian or conservator, the executor of his or her will, or the administrator of his or her estate may bring an action only in the superior court, but not in the small claims division of the 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. No other person may bring such an action; but if another should do so, judgment shall not be rendered for the plaintiff.

Here, this action should be have been brought “at law” pursuant to section 5140 rather than a mandamus petition. “Ordinarily the aggrieved taxpayer’s remedy is not to seek administrative mandate pursuant to Code of Civil Procedure section 1094.5, but to pay the tax and file suit in superior court for a refund. [Citations.]’ [Citation.].” (William Jefferson & Co., Inc. v. Orange County Assessment Appeals Bd. No. 2 (2014) 228 Cal.App.4th 1, 11, quoting Little v. Los Angeles County Assessment Appeals Bd. (2007) 155 Cal.App.4th 915, 923 [tax refund action, rather than mandate petition, was exclusive remedy for challenging property tax assessment].) “Indeed, ‘[t]he exclusive means of review of tax proceedings in California has been the remedy of suit to recover alleged overpayments, and the power of the state to provide such suit as the exclusive remedy is unquestioned.’” (Id., quoting County of Sacramento v. Assessment Appeals Bd. No. 2 (1973) 32 Cal.App.3d 654, 671].) “Any action challenging the merits of an assessor’s base year value determination is a refund action that must be brought against the county . . . that collected the tax even if the action does not expressly seek a refund or disclaims the right to a refund.” (Id. at 12.) Moreover, a writ of mandamus will only issue when there otherwise is no speedy and adequate remedy of at law and a suit for a refund of taxes paid is an adequate remedy at law. (County of Sacramento, supra, 32 Cal.App.3d at 672.)

The Petition alleges three causes of action for writ of mandate to compel Respondents to: 1) properly record the stipulated value to the subject property from the date of the stipulation; 2) assess and enroll the property at the values ordered by the Appeals Board; and 3) remit to Petitioners a tax refund of at least $800,000.00. Each of these mandamus writs would compel the Assessor to remit a tax refund. The sole method of obtaining such relief is through a section 5140 claim. Petitioners demonstrate that they otherwise meet the requirements of a section 5140 action by exhausting their administrative remedies.

The California Supreme Court laid out the path for exhaustion of remedies in the property tax context as follows:

“The first step is the filing of an application for assessment reduction under section 1603, subdivision (a) . . . .” (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1307.) “The second step, which occurs after payment of the tax, is the filing of an administrative refund claim under section 5097, subdivision (a) . . . .” (Id.) “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 . . .’” (Id. at 1307-1308.) Accordingly, “application of the exhaustion principle means that a taxpayer ordinarily may not file or pursue a court action for a tax refund without first applying to the local board of equalization for assessment reduction under section 1603 and filing an administrative tax refund claim under section 5097.” (Id. at 1308.)

Respondents do not dispute that Petitioners are able to file a section 5140 claim, only that this mandamus proceeding is not available. In fact, they fully admit that Petitioners have complied with the first two steps. Therefore, the court is inclined to grant leave to amend for Petitioners to state single cause of action under section 5140. Accordingly, the demurrer is SUSTAINED with 30 days leave to amend.