McHugh v. County of Santa Cruz

• Decision Date: 19 July 1973
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas L. McHUGH, Plaintiff and Appellant, v. COUNTY OF SANTA CRUZ, Defendant and Respondent. Civ. 31005.

Page 149

109 Cal.Rptr. 149

33 Cal.App.3d 533

Thomas L. McHUGH, Plaintiff and Appellant, v. COUNTY OF SANTA CRUZ, Defendant and Respondent.

Civ. 31005.

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

July 19, 1973.

Thomas L. McHugh, in pro. per.

Howard E. Gawthrop, County Counsel, Dwight L. Herr, Asst. County Counsel, Santa Cruz, for defendant and respondent.

MOLINARI, Associate Justice.

This is an appeal by plaintiff from an order of dismissal entered following the sustaining of a demurrer to plaintiff's complaint without leave to amend and the granting of a motion to strike said complaint.

Plaintiff's complaint is entitled 'Complaint for Recovery of Taxes Paid Under Protest.' It alleges, essentially, that plaintiff, a veteran of the armed services of the United States, is the owner of a parcel of improved real property in Brookdale, in the County of Santa Cruz, and that for the assessment years 1965--1966, 1966--1967, 1967--1968, 1968--1969 and 1969--1970 his real property was assessed by the county assessor for more than its cash value. The allegations of the complaint disclose that plaintiff filed an administrative appeal from the assessor's valuation for the assessment year 1966--1967, but that he filed no such appeal for the other assessment years and that he has not filed for the veterans' exemption since the 1966--1967 assessment years. The complaint alleges further that on April 7, 1970, plaintiff paid to the County Treasurer and Tax Collector of Santa Cruz County the sum of $557.30 on account of the delinquent taxes for the years 1965--1966 through 1969--1970 inclusive, and that on September 23, 1970, the balance of said taxes in the sum of $1,215.16 together with penalties, redemption costs and interest in the sum of $311.56 was paid to said treasurer and tax collector. It is also alleged that each of these payments were paid under protest as provided in sections 5136--5143 of the Revenue and Taxation Code. ¹ The complaint prays for a 60 percent reduction of the assessment for each of said tax years, for a return of $1,214.23 representing 60 percent of the total taxes in the sum of $1,517.44 paid under protest; for the refund of the sum of $311.56 collected in penalties, interest and redemption costs; for interest on said sum of $1,215.16, and for the restoration of plaintiff's tax exemption status as a veteran in the amount of $1,000 from March 1, 1965.

Defendant demurred generally and specially to the complaint, and moved to strike the complaint on the ground that it was sham, frivolous, wholly vexatious, and without merit. The trial court sustained the demurrer without leave to amend and granted the motion to strike. Predicated upon these rulings the complaint was ordered stricken and the action dismissed with prejudice. The basis for the order of dismissal, as recited therein, is that the portion of the complaint based on the 1965--1966 and the 1966--1967 assessments is barred by the statute of limitations and that, as to the remaining assessment years on which the complaint is based, plaintiff had failed to exhaust his administrative remedies.

Plaintiff concedes in his complaint that he did not pursue his administrative remedies to obtain a reduction of his assessment for the 1967--1968, 1968--1969, and 1969--1970 assessment years but contends that it was futile to do so in light of the manner in which the board of supervisors ruled upon his 1966-- 1967 assessment-year appeal. As to the 1965--1966 assessment year, he alleges that he failed to file an appeal because he was out of the state and not in a position to apply for a reduction of the assessment for that year.

The doctrine of exhaustion of administrative remedies requires a party to use all available agency administrative procedures before resorting to the courts for relief. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292--295, 109 P.2d 942; Bleek v. State Board of Optometry, 18 Cal.App.3d 415, 431, 95 Cal.Rptr. 860.) This doctrine requires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a final decision on the merits of the entire controversy. This requirement is jurisdictional. (United States v. Superior Court, 19 Cal.2d 189, 194, 129 P.2d 26; Woodard v. Broadway Fed. S. & L. Ass'n, 111 Cal.App.2d 218, 221, 244 P.2d 467; People v. Coit Ranch, Inc., 204 Cal.App.2d 52, 58, 21 Cal.Rptr. 875.)

We first observe that plaintiff's absence from the State of California during a portion of the 1965--1966 fiscal year does not excuse his failure to pursue his administrative remedies. As applied to this assessment year a taxpayer who sought a reduction in an assessment was required to file with the county board of supervisors, sitting as a board of equalization, a verified written application 'showing the facts claimed to require the reduction.' (§ 1607; see §§ 1603, 1604, 1605.) Such an application could be made by the taxpayer's agent (§ 1607), and said agent could attend the hearing on said application to answer all questions pertinent to the inquiry in the place and stead of the taxpayer (§ 1608). In the instant case plaintiff was not required to be present in the state in order to file his application seeking a reduction of the assessment for the year 1965--1966. Had he filed such an application he could have designated an agent to appear on his behalf. Accordingly, as to the 1965--1966 assessment year, plaintiff did not pursue his administrative remedies.

Plaintiff, relying upon Van Gammeren v. City of Fresno, 51 Cal.App.2d 235, 124 P.2d 621, contends that his failure to file an application to have his assessment reduced for the 1967--1968, 1968--1969, and 1969--1970 assessment years should be excused because the law does not require an individual to perform futile acts. Van Gammeren, reiterating the rule that the law does not require useless acts as prerequisites to seeking relief from the courts, held that the plaintiffs did not have to make an application for permits through an administrative agency where an ordinance prohibited the issuance of permits to the plaintiffs and it was apparent that such applications would have been useless acts. (At pp. 239--240, 124 P.2d 621.)

In plaintiff's situation there are no allegations in the complaint that plaintiff was foreclosed or prevented by defendant or its officers and employees from making or presenting an application for a reduction in the assessment for the subject assessment years, excepting the subjective conclusionary allegations that it was futile to do so because the board of supervisors had denied his application for a reduction of the assessment for the 1966--1967 assessment year. In sum, plaintiff has not alleged any valid exception which would have excused his failure to exhaust the administrative remedies available to him for the years under discussion.

Adverting to the 1966--1967 assessment year, the complaint alleges that plaintiff properly pursued his administrative remedies but that he was denied a reduction of his assessment by the board of supervisors, sitting as a board of equalization, on July 23, 1966. Defendant urges that the statute of limitations forecloses plaintiff from further review of the action of the board of supervisors. Reliance is placed on Code of Civil Procedure section 343 which provides that 'An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.' Defendant contends that the cause of action accrued on July 23, 1966, and that when the instant complaint was filed on October 6, 1970, the statute of limitations had run.

Plaintiff alleges in his complaint that on April 7, 1970, he made a partial payment on account of the taxes due for the assessment years 1965--1966, 1966--1967, 1967--1968, 1968--1969, 1969--1970, and that on September 23, 1970, he paid the balance of the taxes due for those years including accrued penalties and interest and that he thereby effected a redemption of his property. He also alleges that these payments were made under protest. Accordingly, he contends that his cause of action is based on his payment under protest and that it did not accrue until the taxes had been paid. Plaintiff's assertion is apparently based on section 5138, which, in pertinent part, provides that 'Within six months after the payment, an action may be brought against a county or a city in the superior court to recover the taxes paid under protest. . . .'

We find plaintiff's contention to be meritorious since we construe the word 'payment' in section 5138 to include a delinquent payment made under protest as well as a timely payment with protest. The only other applicable time application is that provided in the Revenue and Taxation Code which provides for redemption of property sold to the state for nonpayment of taxes within a five-year period. (§§ 3352, 3353, 3361, 3362, 3436, 3437, 3511, 3513, 4101, 4102, 4105, 4105.2, 4112, 4216, 4217, 4218, 4219, 4220.) Under the provisions of section 4101, property sold to the state and property deeded to the state for delinquent taxes may be redeemed until the right of redemption is terminated. Accordingly, real property sold and deeded to the state for delinquent taxes may be redeemed by the former owner by the payment of all delinquencies and statutory penalties at any time prior to the disposition of the property by the state. (Hohn v. Riverside County Flood Control etc. Dist., 228 Cal.App.2d 605, 613, 39 Cal.Rptr. 647.) Upon redemption the deed becomes null and any interest acquired by virtue of the sale to the state ceases, the effect of said sale and deed to the state is thus terminated, and title is restored to the former owner or his successor in interest. (§ 4112; Hohn v. Riverside County Flood Control etc. Dist., supra, at pp. 613--614, 39 Cal.Rptr. 647.)

In the instant case plaintiff alleged that he...