Malibu West Swimming Club v. Flournoy

• Decision Date: 15 July 1976
• Citation: 131 Cal.Rptr. 279,60 Cal.App.3d 161
• Court: California Court of Appeals Court of Appeals
• Parties: MALIBU WEST SWIMMING CLUB, a California Corporation, and Jack Medove, on behalf of themselves and all others similarly situated, Petitioners, v. Houston I. FLOURNOY, Controller of the State of California, Respondent; BOARD OF SUPERVISORS, ex-officio governing body of the Consolidated Sewer Maintenance District Trancas Zone, Los Angeles County, State of California, Real Party in Interest. Civ. 15300.

Page 279

131 Cal.Rptr. 279

60 Cal.App.3d 161

MALIBU WEST SWIMMING CLUB, a California Corporation, and Jack Medove, on behalf of themselves and all others similarly situated, Petitioners, v. Houston I. FLOURNOY, Controller of the State of California, Respondent;

BOARD OF SUPERVISORS, ex-officio governing body of the Consolidated Sewer Maintenance District Trancas Zone, Los Angeles County, State of California, Real Party in Interest.

Civ. 15300.

Court of Appeal, Third District, California.

July 15, 1976.

Earl J. Dunn, Visalia, for plaintiff-appellant.

Evelle J. Younger, Atty. Gen. by Edward Hollingshead, Deputy Atty. Gen., Sacramento, for defendant-respondent.

John Larson, County Counsel by Lawrence Launder, Deputy County Counsel, Los Angeles, for real party in interest respondent.

FRIEDMAN, Associate Justice.

Petitioners, who are property owners in the Consolidated Sewer Maintenance District, Trancas Zone ('Trancas Zone') of Los Angeles County, sought a writ of mandate to review a tax rate order issued by the State Controller, who was named as respondent. Real party in interest is the Los Angeles County Board of Supervisors, which is the governing board of Trancas Zone. The trial court denied relief and the taxpayers appeal.

The case revolves around Revenue and Taxation Code section 2274. This statute originated in 1973 legislation, which was designed to place ceilings on ad valorem property tax rates of local public agencies. (Stats.1973, ch. 358.) In brief, section 2274 sets up a mechanism by which local agencies may secure relief from these ceilings under conditions of danger or emergency. Subdivision (a) of section 2274 permits the local agency to levy an additional rate which will increase its tax revenue by one percent in the event of an emergency endangering the public health, safety or welfare or in case of a disaster. If the increase permitted by subdivision (a) is insufficient, subdivision (b) supplies an additional mechanism--the local agency adopts a resolution requesting the State Controller to permit an additional rate; the latter then holds a public hearing; after the hearing he may authorize an additional tax rate if he makes prescribed findings. The statutory description of the requisite findings is quoted in the margin. ¹

In January 1974 the Los Angeles County board of supervisors adopted a resolution reciting emergency conditions within the Trancas Zone and requesting the State Controller to authorize an additional tax rate. In May 1974 the Controller held a hearing and in July 1974 issued an authorization for additional property taxes, finding an emergency which endangered the public health and safety, the costs of which could not be met from available tax rates and other revenue sources.

Petitioners accompanied their mandate petition with a transcript of the testimony at the Controller's hearing. They attacked the evidentiary basis for the finding of emergency and charged a violation of due process standards in that the Controller considered evidence submitted by the County of Los Angeles after the public hearing had closed. There are several reasons why the trial court's denial of relief should be sustained.

In setting a tax rate under a statutory delegation of authority, an administrative board or officer acts in a quasi-legislative capacity. (Franchise Tax Bd. v. Superior Court, 36 Cal.2d 538, 549, 225 P.2d 905.) The 'administrative mandamus statute,' Code of Civil Procedure section 1094.5, applies only to administrative adjudications, not to quasi-legislative actions. (Wilson v. Hidden Valley Mun. Water Dist., 256 Cal.App.2d 271, 277--278, 63 Cal.Rptr. 889.) A party may seek review of a quasi-legislative action through a 'traditional' mandamus proceeding under Code of Civil Procedure section 1085. (Clean Air Constituency v. California State Air Resources Bd., 11 Cal.3d 801, 809, 114 Cal.Rptr. 577, 523, P.2d 617.) In the latter kind of proceeding, the scope of judicial review differs from that available under section 1094.5. We discuss the scope of judicial review at a later point.

Availability of review by traditional mandamus does not equate with entitlement to it. The writ will not be granted where the petitioner has an adequate remedy in the ordinary course of law. (Code Civ.Proc., § 1086.) The adequacy of other remedies requires an inquiry into the circumstances of the particular case, thus evoking a measure of judicial discretion. (Rescue Army v. Municipal Court, 28 Cal.2d 460, 466--467, 171 P.2d 8; 5 Witkin, California Procedure, pp. 3814--3816, 3867.)

Here the trial court held that traditional mandamus was available but that petitioners had an adequate remedy at law by paying the additional taxes under protest and suing to recover. We concur. The writ of mandate is available to control some functions of tax officials. (See 5 Witkin, California Procedure, p. 3848.) It is generally denied when the action's legality may be tested in a tax refund suit. (Star-Kist Foods, Inc. v. Quinn, 54 Cal.2d 507, 511, 6 Cal.Rptr. 545, 354 P.2d 1; County of Sacramento v. Assessment Appeals Bd., 32 Cal.App.3d 654, 671--673, 108 Cal.Rptr. 434.)

Petitioners assert their entitlement to the writ because they are not challenging the functions of local tax officials but rather the administrative inquiry and determination of the State Controller. The assertion stimulates recall of Chief Justice Marshall's classic dictum: 'It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.' (Marbury v. Madison, 5 U.S. (1 Cranch 137) 135, 168 2 L.Ed. 60.)

The present action of the Controller is an integral part of the successive steps by which Los Angeles County property taxes are levied on property within the Trancas Zone. The steps are governed by a statutory timetable--the board of supervisors must annually as of September 1 fix tax rates and levy taxes in order that the county auditor before September 10 may compute and enter taxes upon the assessment roll, which then becomes the basis for the preparation and mailing of tax bills before Nevember 1 in order that taxpayers may pay their tax installments before the statutory delinquency dates of December 10 and April 10. (See generally, Gould, J., The California Tax System, West's Ann.Ed., Rev. & Tax.Code, pp. 106--108.) Interference by mandate with this particular action of the Controller is just as incompatible with the statutory timetable as interferences with the rate-setting, levying and billing procedures of county officials. In the individualized inquiry into the adequacy of other judicial remedies, discretion impels restraint upon judicial interferences with this process. The trial court exercised a sound discretion in relegating petitioners to a tax refund suit.

The trial court did not limit itself to the procedural issue, but upheld the Controller's order on the merits. The petitioners and respondents (the latter represented by the State Attorney General and the Los Angeles County Counsel) have briefed the appeal upon the merits. We infer that the parties seek a substantive adjudication rather than a procedural detour. Since the merits have been briefed, it may be that a few paragraphs of dicta will assist in laying the dispute at rest.

Petitioners argue that the Controller's findings of emergency had no evidentiary support, citing a number of decisions which adopt the Webster's International Dictionary definition of an emergency as 'an unforeseen occurrence or combination of circumstances which calls for an immediate action or remedy; pressing necessity, exigency.' (Stevens v. Board of Education, 9 Cal.App.3d 1017, 1022, 88 Cal.Rptr. 769, 772, and cases cited.) Petitioners contend that the evidence before the Controller established only lack of governmental foresight, not unforeseen circumstances.

The term 'emergency' depends upon the circumstances of each case; its central idea is that a sudden or unexpected necessity requires speedy action. (Los Angeles Dredging Co. v. Long Beach, 210...