Koret of Cal., Inc. v. City etc. of San Francisco

• Decision Date: 27 October 1969
• Parties: KORET OF CALIFORNIA, INC., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Respondents. Civ. 25990.
• Court: California Court of Appeals Court of Appeals

Page 698

81 Cal.Rptr. 698

2 Cal.App.3d 87

KORET OF CALIFORNIA, INC., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Respondents.

Civ. 25990.

Court of Appeal, First District, Division 4, California.

Oct. 27, 1969.

Rehearing Denied Nov. 26, 1969.

Hearing Denied Dec. 17, 1969.

Taylor & Winokur, San Francisco, for appellant.

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

RATTIGAN, Acting Presiding Justice.

Koret of California, Inc., a corporation and San Francisco property taxpayer, appeals from an adverse summary judgment entered in its action to recover property taxes paid under protest. The action, and the precedent events which underlie it, are direct consequences of the judgment which ordered issuance of a writ of mandate affecting the property assessment situation in San Francisco, and which we have this day affirmed in Knoff et al. v. City and County of San Francisco, et al. (1 Cal.App.3d 184, 81 Cal.Rptr. 683). We refer to that decision (the 'Knoff decision') for all purposes relevant hereto.

Koret of California, Inc. (hereinafter 'plaintiff') commenced the action in October, 1967, against the City and County of San Francisco, Joseph E. Tinney as its assessor, its board of supervisors (as such and as its board of equalization) and its tax collector. The action sought recovery of protested taxes paid pursuant to deficiency assessments levied by the assessor upon plaintiff, in 1967, as 'escaped assessments' of its personal property for the tax years 1964--65, 1965--66 and 1966--67. The City and County (to whom we hereinafter refer in the singular as 'defendant') answered the complaint. Thereafter, both parties moved for summary judgment. Each motion was accompanied by a declaration in its support, to which the opposing party filed no counter-declaration in either instance. The trial court denied plaintiff's motion but granted defendant's; plaintiff appeals from the ensuing summary judgment entered in defendant's favor on the first, second and third (of four) causes of action set forth in the complaint. (Defendant's demurrer to the fourth cause of action was sustained without leave to amend; the fourth cause of action is not involved on the appeal.)

Plaintiff's position on the appeal is that the escaped assessments, upon the basis of which the protested taxes were paid, were void for various substantive reasons. Defendant, not meeting plaintiff's arguments on their merits, defendant the judgment upon the ground that the Knoff judgment required it. Neither party has advanced any argument addressed to the fact that this appeal is from a Summary judgment entered pursuant to section 437c of the Code of Civil Procedure. Having considered the record on appeal in light of this critical fact, we conclude that the law pertaining to summary judgments requires reversal of this one.

On appeal from the summary judgment (plaintiff having filed no affidavit in opposition thereto), the question is whether defendant's affidavit in support of its motion therefor, strictly construed, is sufficient to sustain a judgment in its favor. (Code Civ.Proc. § 437c; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785. See 2 Witkin, Cal. Procedure (1954) Proceedings Without Trial, § 77, p. 1714.) A factual deficiency in the affidavit cannot be remedied by resort to the pleadings, but we may examine the latter in order to define the issues of which the summary judgment disposes without a trial of fact. (Vallejo v. Montebello Sewer Co. Inc. (1962) 209 Cal.App.2d 721, 734--735, 26 Cal.Rptr. 447; Michelman v. Frye (1965) 238 Cal.App.2d 698, 702, 48 Cal.Rptr. 142.)

In the complaint, plaintiff alleges as follows: In and for the tax years 1964--65, 1965--66 and 1966--67, it duly reported to the assessor concerning its personal property, the assessor made timely assessments thereof, and plaintiff paid the property taxes due and owing in consequence of each such assessment. In 1967 the assessor made 'escaped assessments' of the same property for each (and all three) of such tax years. The escaped assessments resulted from the assessor's application to the property, for each year, of 'an assessment ratio in excess to that permitted by law and greater than the assessment ratios actually applied by the Assessor to all property...