Burke v. City and County of San Francisco
| Court | California Court of Appeals |
| Writing for the Court | DRAPER; SALSMAN, J., and BRAY |
| 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 |
Page 539
v.
The CITY AND COUNTY OF SAN FRANCISCO, the Board of Supervisors of the City and County of San Francisco, Defendants and Respondents.
Page 540
[258 Cal.App.2d 33] 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 [258 Cal.App.2d 34] 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...
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Sanctity of Human Life Network v. Chp, No. C032534.
...bring an action for declaratory relief before an actual invasion of rights has occurred. (Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539.) However, the action must be based on an actual controversy with known parameters. If the parameters are as yet unkno......
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Wilson v. City, No. A123480.
...it must still demonstrate120 Cal.Rptr.3d 685that the controversy is justiciable. (See Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539.) And to be justiciable, the controversy must be ripe. ( Stonehouse Homes, at p. 540, 84 Cal.Rptr.3d 223.) " 'Whether a cl......
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City of Tiburon v. Northwestern Pac. R. Co.
...declaratory relief (Foster v. Masters Pontiac Co., 158 Cal.App.2d 481, 322 P.2d 592).' (Burke v. City, etc., of San Francisco (1968) 258 Cal.App.2d 32, 33--34, 65 Cal.Rptr. 539, 540. See also, Wilson v. Transit Authority, supra, 199 Cal.App.2d 716, 721, 19 Cal.Rptr. According to the allegat......
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Wilson v. City, No. A123480.
...has occurred, it must still demonstrate**685 that the controversy is justiciable. (See Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539.) And to be justiciable, the controversy must be ripe. ( Stonehouse Homes, at p. 540, 84 Cal.Rptr.3d 223.) " 'Whether a c......
-
Sanctity of Human Life Network v. Chp, No. C032534.
...bring an action for declaratory relief before an actual invasion of rights has occurred. (Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539.) However, the action must be based on an actual controversy with known parameters. If the parameters are as yet unkno......
-
Wilson v. City, No. A123480.
...it must still demonstrate120 Cal.Rptr.3d 685that the controversy is justiciable. (See Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539.) And to be justiciable, the controversy must be ripe. ( Stonehouse Homes, at p. 540, 84 Cal.Rptr.3d 223.) " 'Whether a cl......
-
City of Tiburon v. Northwestern Pac. R. Co.
...declaratory relief (Foster v. Masters Pontiac Co., 158 Cal.App.2d 481, 322 P.2d 592).' (Burke v. City, etc., of San Francisco (1968) 258 Cal.App.2d 32, 33--34, 65 Cal.Rptr. 539, 540. See also, Wilson v. Transit Authority, supra, 199 Cal.App.2d 716, 721, 19 Cal.Rptr. According to the allegat......
-
Wilson v. City, No. A123480.
...has occurred, it must still demonstrate**685 that the controversy is justiciable. (See Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34, 65 Cal.Rptr. 539.) And to be justiciable, the controversy must be ripe. ( Stonehouse Homes, at p. 540, 84 Cal.Rptr.3d 223.) " 'Whether a c......