Daar v. Alvord

Decision Date28 January 1980
Citation101 Cal.App.3d 480,161 Cal.Rptr. 658
CourtCalifornia Court of Appeals Court of Appeals
PartiesDavid DAAR, Daar & Newman, a Professional Corporation, Individually and on Behalf of All Persons and Entities Similarly Situated, Plaintiffs and Appellants, v. H. B. ALVORD, Tax Collector of the County of Los Angeles; Alexander Pope, County Assessor; Mark H. Bloodgood, Auditor-Controller of the County of Los Angeles; Board of Supervisors, County of Los Angeles, Defendants and Respondents. Civ. 55602.

Erwin Sobel and Miller & Daar and David Daar and Michael R. Newman, Beverly Hills, for plaintiffs and appellants.

John H. Larson, County Counsel, and Lawrence B. Launer and David L. Muir, Deputy County Counsels, Los Angeles, for defendants and respondents.

JEFFERSON, Associate Justice.

Plaintiffs in this action are David Daar, an individual, and Daar & Newman, a professional corporation. The action is brought individually, and on behalf of all persons and entities similarly situated, to obtain refunds of taxes alleged to be excessive and paid by taxpayers whose property was on the unsecured portion of the assessment roll in Los Angeles County for the fiscal year 1978-79. Named as defendants are H. B. Alvord, Tax Collector of the County of Los Angeles; Alexander Pope, County Assessor; Mark H. Bloodgood, Auditor-Controller of the County of Los Angeles; Board of Supervisors of the County of Los Angeles; the City Council of the City of Los Angeles, and the City of Los Angeles.

Plaintiffs' second amended complaint was framed in three causes of action: the first cause was to obtain a refund of taxes paid; the second sought declaratory relief; the third sought injunctive relief to prevent the defendants from expending those funds constituting the assertedly excessive taxes collected by defendants and, further, to require defendants to impound those funds pending resolution of the matter.

After a hearing on plaintiffs' application for a preliminary injunction, the trial court denied the injunctive relief requested on the ground that plaintiffs had an adequate remedy at law and had not established that, in the absence of injunctive relief, they would suffer irreparable injury. Plaintiffs have appealed from the trial court's judgment (order). 1

This case arose as the result of the dispute over the propriety of defendants' refusal to apply to the unsecured portion of the assessment roll in Los Angeles County for the fiscal year 1978-79, the one percent (1%) limitation on the taxation of real property established by the initiative (commonly known as Proposition 13) passed by California voters on June 6, 1978. 2 Plaintiff David Daar, as a taxpayer member of the general public, and plaintiff Daar & Newman, as an entity which paid unsecured property taxes as computed by defendants during the year in question, sought to enjoin defendants from "(s) pending, distributing or in any manner delivering to any taxing districts or agencies within the County of Los Angeles illegally and erroneously collected property taxes on the unsecured roll for the fiscal year July 1, 1978 to June 30, 1979, . . ." Plaintiffs also sought a mandatory injunction "(o)rdering the defendants and each of them to impound, set aside and segregate the illegally collected taxes to date . . . (or) to be collected in the future for the fiscal year July 1, 1978 to June 30, 1979. . . ."

The trial court's denial of preliminary injunctive relief constitutes the sole issue on this appeal. We note at the outset that " '(t)he authorities are numerous and uniform to the effect that the granting or denial of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute right therefor may be conflicting, rests in the sound discretion of the trial court, and that the order may not be interfered with on appeal, except for an abuse of discretion.' (Citation.) Discretion is abused in the legal sense 'whenever it may be fairly said that in its exercise the court in a given case exceeded the bounds of reason or contravened the uncontradicted evidence.' (Citations.)" (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527, 67 Cal.Rptr. 761, 770, 439 P.2d 889, 898.)

On this appeal, plaintiffs rely upon Code of Civil Procedure section 526a as authority for granting injunctive relief to them as resident taxpayers. That section provides: "An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities. (P) An action brought pursuant to this section to enjoin a public improvement project shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law."

In Blair v. Pitchess (1971) 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242, the California Supreme Court discussed the frequent use of Code of Civil Procedure section 526a to provide a remedy for taxpayers seeking to prevent illegal expenditure of tax funds or other illegal conduct by governmental officials. Noting that the section "authorizes actions by a resident taxpayer against officers of a county, town, city, or city and county to obtain an injunction restraining and preventing the illegal expenditure of public funds" (Id. at p. 267, 96 Cal.Rptr. at p. 48; 486 P.2d at p. 1248; fn. omitted), the court declared that "(t)he primary purpose of this statute, originally enacted in 1909, is to 'enable a large body of the citizenry to challenge governmental action Which would otherwise go unchallenged in the courts because of the standing requirement.' " (Id. at pp. 267-268, 96 Cal.Rptr. at pp. 48-49, 486 P.2d at pp. 1248-49.) (Emphasis added.) In the ensuing discussion, the Blair court emphasizes the remedial nature of section 526a, the necessity for liberally interpreting its scope, and its utility in preventing illegal conduct by the government involved.

Defendants counter plaintiffs' reliance upon Code of Civil Procedure section 526a with the long established principle, recognized both in the California Constitution and in the Revenue and Taxation Code, which precludes taxpayers from enjoining the collection of taxes. Article XIII, section 32, of the California Constitution, provides: "No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. 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." 3

In conformity with the constitutional provision, the Legislature enacted section 4807 of the Revenue and Taxation Code, which provides: "No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against any county, municipality, or district, or any officer thereof, to prevent or enjoin the collection of property taxes sought to be collected." 4

In addition, the Legislature has provided a remedy for the taxpayer who claims to have paid taxes illegally imposed or erroneously collected. Revenue and Taxation Code section 5140 provides, in pertinent part for our purposes, that "(t)he person who paid the tax, . . . may bring an action in 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." 5

The decisional law has uniformly relied on the "adequacy of legal...

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9 cases
  • Leider v. Lewis
    • United States
    • California Court of Appeals Court of Appeals
    • January 14, 2016
    ...principles or statutes may prevent relief under section 526a where it might otherwise seem to be available. In Daar v. Alvord (1980) 101 Cal.App.3d 480, 161 Cal.Rptr. 658 (Daar ), the court held a taxpayer could not prosecute a section 526a action seeking injunctive relief to prevent county......
  • Chiatello v. City
    • United States
    • California Court of Appeals Court of Appeals
    • November 16, 2010
    ...(Cal. Const., art. XIII, § 32 (article XIII, section 32)), reinforced by numerous statutes to the same effect. In Daar v. Alvord (1980) 101 Cal.App.3d 480, 161 Cal.Rptr. 658, the Court of Appeal held that an action aimed at challenging and halting the collection of a local property tax woul......
  • Chiatello v. City
    • United States
    • California Court of Appeals Court of Appeals
    • October 21, 2010
    ...any tax" (Cal. Const., art. XIII, § 32 (article XIII, section 32)), reinforced by numerous statutes to the same effect. In Daar v. Alvord (1980) 101 Cal.App.3d 480, the Court of Appeal held that an action aimed at challenging and halting the collection of a local property tax would not evad......
  • Howard Jarvis Taxpayers Assn. v. City of La Habra
    • United States
    • California Court of Appeals Court of Appeals
    • August 27, 1999
    ...does not include activity characterized as illegal solely by reason of purportedly illegal tax collection." (Daar v. Alvord (1980) 101 Cal.App.3d 480, 485-486, 161 Cal.Rptr. 658, original italics; see also McKendry v. County of Kern (1986) 180 Cal.App.3d 1165, 1170, 226 Cal.Rptr. 45.) The t......
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