Howard v. City of Los Angeles

• Decision Date: 17 July 1956
• Citation: 299 P.2d 294,143 Cal.App.2d 195
• Parties: Lindsay Coleman HOWARD, Plaintiff and Appellant, v. CITY OF LOS ANGELES and County of Los Angeles, Defendants and Respondents. Civ. 21617.
• Court: California Court of Appeals Court of Appeals

Page 294

299 P.2d 294

143 Cal.App.2d 195

Lindsay Coleman HOWARD, Plaintiff and Appellant, v. CITY OF LOS ANGELES and County of Los Angeles, Defendants and Respondents.

Civ. 21617.

District Court of Appeal, Second District, Division 1, California.

July 17, 1956.

Franklin W. Peck, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Spencer L. Halverson, Deputy City Atty., Los Angeles, for respondent, City of Los Angeles.

Harold W. Kennedy, County Counsel, Gordon Boller, Deputy County Counsel, Los Angeles, for respondent, County of Los Angeles.

WHITE, Presiding Justice.

Plaintiff appeals from the judgment dismissing his action after the demurrer to his amended complaint was sustained and he refused to further amend. The object of the action is to recover taxes on certain jewelry for the years 1953 and 1954 paid by appellant to the City of Los Angeles and County of Los Angeles. The facts alleged in the complaint are deemed true and the following is a summary of the pertinent allegations.

The jewelry was purchased by appellant in 1943 while he and his wife were residents of Beverly Hills in Los Angeles County. An action for divorce and other relief was commenced by his wife in April 1951, while both parties were still residents of Los Angeles County. In June of the same year appellant moved to, and became a resident of, Ventura County. In July 1952, his wife appealed from the portion of the interlocutory judgment of divorce which awarded said jewelry to appellant as his sole and separate property, and in August 1952, pursuant to court order staying execution in accordance with Section 943 of the Code of Civil Procedure, she delivered all of said jewelry to the Clerk of Los Angeles County.

Taxes for the years 1953 and 1954 were assessed to said County Clerk and paid by appellant under protest. The District Court of Appeal affirmed the judgment that appellant was the owner of the jewelry. Howard v. Howard, 128 Cal.App.2d 180, 275 P.2d 88. The remittitur was issued and filed with the Clerk of the Superior Court of Los Angeles County on December 20, 1954. Thereafter appellant procured an order to show cause and a further order of court directing delivery of the jewelry to him. On March 4, 1955, all of said jewelry was delivered to him and removed by him to Ventura County. If appellant 'had not been prevented from removing said jewelry to the county of his residence and where he maintains his home, namely, said Ventura County, he would, in June, 1951, have moved it to said County of Ventura'.

We have purposely omitted the statements of contentions and conclusions alleged in the complaint as the demurrer does not give to them the status of admitted facts, as urged by appellant. Connecticut Gen. L. Ins. Co. v. Johnson, 8 Cal.2d 624, 628-629, 67 P.2d 675.

Much of appellant's briefs is based upon the assumption that the impounding of the jewelry with the Clerk of Los Angeles County removed it from the domicile of its owner in Ventura County. However, since the record on the instant appeal fails to disclose that the jewelry was outside of Los Angeles County at any time between 1943 and 1955, we need not consider the arguments based upon that assumption.

The question to be decided is not what effect the removed of jewelry from the residence of its owner would have upon its situs for taxation, but the effect, if any, of the removal of the owner from the tax situs of his jewelry. Appellant's change of...