Judge: Robert B. Broadbelt, Case: 21STCV17921, Date: 2022-08-29 Tentative Ruling

Case Number: 21STCV17921    Hearing Date: August 29, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant California Franchise Tax Board

RESPONDING PARTY:       Plaintiff Alicia Gamarra

(1)   Demurrer to Amended Complaint

MOVING PARTY:                Plaintiff Alicia Gamarra

RESPONDING PARTY:       Unopposed

(2)   Ex Parte Application

The court considered the moving, opposition, and reply papers filed in connection with the demurrer.  The court notes that Plaintiff has submitted two oppositions: (1) “Objection and Rejection to, FTB Notice of Demurrer, Points and Authorities and OTA Opinion,” filed on May 11, 2022, and (2) “Objection, Strike from the Record and filing of FTB Notice of Demurrer, Points and Authorities and OTA Opinion,” filed on May 16, 2022.  While Plaintiff is authorized to submit only one opposition, the court exercises its discretion to consider both documents filed by Plaintiff.  

The court considered the moving papers filed in connection with Plaintiff’s document entitled “Judicial Request, EX PARTE Meeting Both counselors,” filed July 12, 2022.   

BACKGROUND

Plaintiff Alicia Gamarra (“Plaintiff”) filed the operative Amended Complaint in this action against defendant California Franchise Tax Board (“Defendant”) on March 1, 2022.  Plaintiff alleges that she has sued Defendant “for allegedly creating a contract with the Plaintiff” without Plaintiff’s consent.  (Amended Compl., p. 2:3-4.)  Plaintiff principally alleges that Defendant unlawfully executed a contract with Plaintiff and garnished Plaintiff’s wages despite Defendant not having legal authority “to enforce tax codes on Plaintiff.”  (Amended Compl., p. 4:7-9; Amended Compl., p. 4, ¶ 3.)  Plaintiff seeks monetary damages between $74,087.66 and $500,000.  (Amended Compl., p. 2, ¶ 1.) 

REQUEST FOR JUDICIAL NOTICE

The court grants Defendant’s request for judicial notice.  (Evid. Code, § 452, subd. (c), (h).)

DEMURRER

The court sustains Defendant’s demurrer to Plaintiff’s Amended Complaint because it fails to state facts sufficient to constitute a cause of action since Plaintiff’s sole remedy to recover money collected by Defendant is to file a suit for refund.  (Code Civ. Proc., § 430.10, subd. (e); California Constitution, Art. XIII, § 32 [“After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature”]; Rev. & Tax. Code, § 19322 [requirements to submit a claim for refund].)

The court also sustains Defendant’s demurrer to Plaintiff’s Amended Complaint because Plaintiff seeks monetary damages (see Amended Compl., p. 2, ¶ 1) and it fails to state facts sufficient to constitute a cause of action for damages since Defendant is immune from liability for acts or omissions “in the interpretation or application of any law relating to a tax.”  (Code Civ. Proc., § 430.10, subd. (e); Gov. Code, §§ 815, 860.2, subd. (b); Mitchell v. Franchise Tax Bd. (1986) 183 Cal.App.3d 1133, 1136-1137.)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)  To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Here, the court finds that (1) Plaintiff has not met her burden to articulate how she could amend the complaint to render it sufficient against Defendant, and (2) the court has already given Plaintiff an opportunity to amend her Complaint by sustaining Defendant’s demurrer to Plaintiff’s original Complaint and granting Plaintiff leave to amend (February 22, 2022 order, p. 3:8-11), but Plaintiff has failed to cure the defects in her Amended Complaint.  The court therefore sustains Defendant’s demurrer without leave to amend.

EX PARTE APPLICATION

On July 12, 2022, Plaintiff filed a document entitled “Judicial Request, EX PARTE Meeting Both counselors,” which states a hearing date of August 29, 2022.   

The court finds that Plaintiff has not satisfied the requirement of California Rules of Court, rule 3.1202, subdivision (c), that an applicant for an ex parte order must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or other statutory basis for granting relief ex parte.  The court therefore denies Plaintiff’s ex parte application. 

ORDER

            The court sustains defendant California Franchise Tax Board’s demurrer to plaintiff Alicia Gamarra’s Amended Complaint without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court orders defendant California Franchise Tax Board to lodge and serve a proposed judgment of dismissal within 10 days of the date of this order.  (Code Civ. Proc., § 581, subd. (f)(1).)

The court denies plaintiff Alicia Gamarra’s ex parte application.

The court sets an Order to Show Cause re dismissal (after sustaining demurrer without leave to amend) for hearing on _____________________, 2022, at 11:00 a.m.

The court orders defendant California Franchise Tax Board to give notice of this order.

IT IS SO ORDERED.

DATED:  August 29, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court