Burke v. City and County of San Francisco

• Citation: 258 Cal.App.2d 32,65 Cal.Rptr. 539
• Parties: Bernard BURKE, James E. Cooke and Mortlmer H. Herzstein, Plaintiffs and Appellants, v. The CITY AND COUNTY OF SAN FRANCISCO, the Board of Supervisors of the City and County of San Francisco, Defendants and Respondents. Civ. 24076.
• Decision Date: 18 January 1968
• Court: California Court of Appeals

Page 539

65 Cal.Rptr. 539

258 Cal.App.2d 32

Bernard BURKE, James E. Cooke and Mortlmer H. Herzstein, Plaintiffs and Appellants, v. The CITY AND COUNTY OF SAN FRANCISCO, the Board of Supervisors of the City and County of San Francisco, Defendants and Respondents.

Civ. 24076.

Court of Appeal, First District, Division 3, California.

Jan. 18, 1968.

Herzstein, Maier & Carey, San Francisco, for appellants.

Thomas M. O'Connor, City Atty. of the City and County of San Francisco, George E. Baglin, Deputy City Atty. of the City and County of San Francisco, San Francisco, for respondents.

DRAPER, Presiding Justice.

This action for declaratory relief was dismissed after the sustaining of demurrer to the complaint without leave to amend. Plaintiffs appeal.

Plaintiffs own real property in the Diamond Heights section of San Francisco. Believing the improvements on their lands to be assessed at too high a figure for the 1965--66 tax year, they applied to the supervisors, sitting as a board of equalization, for reduction. The assessment was reduced by 15%. Plaintiffs paid, under protest, the tax due upon this reduced assessment. They then brought this action for declaratory relief, and also commenced a mandamus proceeding (Code Civ.Proc. § 1094.5) to review the action of the board of equalization.

Insofar as the present complaint for declaratory relief is directed to the 1965--66 assessment, the demurrer was properly sustained. The mandamus proceeding, which raised this precise issue, admittedly has been determined adversely to plaintiffs. No appeal was taken, and the judgment is now final. The time for filing an action to recover the taxes paid under protest has passed (Rev. & Tax Code, § 5138). We do not understand appellants to contend that any justiciable issue remains as to the 1965--66 assessment and tax.

They urge, however, that the true issue is not the 1965--66 taxes, but 'whether the assessment practices of the respondents and their assessors comply with the Constitution and Laws of California,' without regard to any specific assessment. This assertion appears only in the briefs, and not in the complaint.

Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly applicable to one for declaratory relief (Foster v. Masters Pontiac Co., 158 Cal.App.2d 481, 322 P.2d 592). The distinguishing characteristic of the action for declaratory relief is that it may be brought before an actual invasion of rights has occurred (2 Witkin, Cal.Proc., § 447).

But there are limits to the availability of the remedy. It will not lie to determine a matter which is or has become moot (Pittenger v. Home Savings & Loan Assn., 166 Cal.App.2d 32, 36, 332 P.2d 399). Nor is resort to it warranted when '(t)here is no more than a conjecture or supposition * * * that at some time in the future a controversy may arise' (Merkley v. Merkley, 12 Cal.2d 543, 547, 86 P.2d 89, 91). The controversy must be justiciable, as distinguished from a difference or dispute of a hypothetical or abstract character, and it must be definite, concrete and of a character which admits of specific and conclusive relief by judgment (Monahan v. Department of Water & Power, 48 Cal.App.2d 746, 751, 120 P.2d 730; see also Wilson v. Transit Authority, 199 Cal.App.2d 716, 724, 19 Cal.Rptr. 59; Conroy v. Civil Service Comm., 75 Cal.App.2d 450, 456, 171 P.2d 500).

The complaint before us alleges that Russel L. Wolden was the assessor of San Francisco until May 28, 1966. Concededly, he was removed on that...