Roth v. City of Los Angeles

• Court: California Court of Appeals
• Writing for the Court: CALDECOTT; CHRISTIAN
• Citation: Roth v. City of Los Angeles, 126 Cal.Rptr. 163, 53 Cal.App.3d 679 (Cal. App. 1975)
• Decision Date: 12 December 1975
• Parties: Lester Wm. ROTH and Gertrude F. Roth, as Trustees For the Lester and Gertrude Roth Foundation, Plaintiffs and Respondents, v. The CITY OF LOS ANGELES, Defendant and Appellant. Civ. 36634.

Page 163

126 Cal.Rptr. 163

53 Cal.App.3d 679

Lester Wm. ROTH and Gertrude F. Roth, as Trustees For the Lester and Gertrude Roth Foundation, Plaintiffs and Respondents, v. The CITY OF LOS ANGELES, Defendant and Appellant.

Civ. 36634.

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

Dec. 12, 1975.

Hearing Denied Feb. 17, 1976.

Donovan & Sommers, Martin J. Spear, Los Angeles, for plaintiffs and respondents.

Burt Pines, City Atty., John B. Rice, Asst. City Atty., Henry G. Morris, Deputy City Atty., Los Angeles, for defendant and appellant.

CALDECOTT, Presiding Justice.

Trustees for the Lester and Gertrude Roth Foundation (respondents) filed suit against appellant City of Los Angeles for the recovery of an assessment paid under protest. The trial court found in favor of respondents, holding the statutory scheme of Government Code sections 39560--39588 violative of due process and, in addition, finding certain overcharges in the assessment. The appeal is from the judgment.

Trustees for the Lester and Gertrude Roth Foundation are the owners of a certain lot of real property in Los Angeles County. On November 19, 1968, respondents were sent a notice from the Los Angeles Fire Department that their property had been inspected, and that the presence of certain vegetation thereon, described by location, size and type, constituted a violation of section 57.25.20 of the Los Angeles Municipal Code. The notice directed respondents to clear the vegetation, and informed them that failure to comply before December 6, 1968, would result in imposition of the penalties prescribed by law, or removal of the brush by the city and imposition of a lien upon the property for the cost of such removal. A telephone number for additional information was listed, and the notice was signed by the inspector.

Respondents did not respond to this notice. On January 14, 1969, without further notice, the city council passed Ordinance No. 137,986 pursuant to Government Code sections 39561--39563. ¹ This ordinance declared that weeds (defined by § 39561.5) on certain private property (therein listed by lot and tract number and including respondents' land) constituted a public nuisance, and stated the intention of the city to abate said nuisance in accordance with the Government Code provisions.

On January 19, 1969, in accordance with section 2 of the ordinance and Government Code section 39566 and 39567.1, a notice of enactment of the ordinance was sent to respondents. This notice stated that the vegetation had been declared by ordinance to be a nuisance which must be abated, and that if respondents failed to take the necessary action to abate it the city would do so, with the cost thereof assessed to respondents and as a lien on the property. Pursuant to section 3 of the ordinance and Government Code sections 39566--39569, the notice also stated that property owners having objections to the proposed abatement should appear at the city council meeting of February 11, 1969, at a specified time and place, when property owners' 'objections will be heard and given due consideration' and the council would make a final determination. Respondents failed to attend the hearing.

On February 11, 1969, the city council (Ordinance No. 138,207) ordered abatement of the public nuisance on respondents' property (§ 39571). In October 1969, the offending vegetation on respondents' property was removed. In compliance with sections 39574--39584, the city council assessed the sum of $767.70 on respondents' property for the costs of abatement. It is undisputed that respondents were overcharged by the sum of $23.10.

Respondents attended the city council meeting of February 16, 1970, held pursuant to section 39576, and protested the assessment. The assessment was confirmed. On December 7, 1970 and April 2, 1971, when respondents paid the assessment, they filed a written protest in accordance with Revenue and Taxation Code sections 5136--5137. The protest specified the grounds therefor, and asserted that the entire assessment was void.

Respondents thereafter instituted this action for recovery of the assessment, alleging that it was illegal and void both because the statutory procedure was violative of due process and because no nuisance had existed on the property. The trial court found, in sum, that although the city had proceeded in accordance with the relevant Government Code provisions, the assessment must be refunded. Failure to provide notice prior to the first ordinance, and the lack of certain statutorily expressed procedural guarantees for the hearing itself were held to violate due process. In addition, overcharges in the assessment in the sum of $23.10 were found.

I

Appellant first contends that respondents were precluded from bringing this action for recovery of the assessments paid, insofar as they failed to comply with Government Code section 39585. That section provides: 'The legislative body may order refunded all or part of a tax paid pursuant to this article if it finds that all or part of the tax has been erroneously levied. A tax or part shall not be refunded unless a claim is filed with the clerk of the legislative body on or before November 1st after the tax became due and payable. The claim shall be verified by the person who paid the tax, or his guardian, executor, or administrator.'

Respondents paid the assessment in question under protest and brought suit for its recovery under the provisions of Revenue and Taxation Code sections 5136 and 5138. ² The trial court properly concluded that, in view of the provisions for payment of taxes under protest, no claim need have been submitted.

It is well established in this state that the Revenue and Taxation Code provides two distinct and cumulative remedies for recovery of taxes. One is found at sections 5096 et seq. (formerly Pol.Code, § 3804), and establishes a claims procedure similar to that created by Government Code section 39585. This is an administrative remedy, whereby the complainant may file a verified claim for refund and the appropriate authorities may direct payment thereof without the necessity for judicial sanction. The second remedy, provided in Revenue and Taxation Code sections 5136 et seq. (formerly Pol.Code, § 3819), is through payment of the tax under protest, and subsequent suit in court for its recovery. When a taxpayer falls within the provisions of both, he may proceed under either. (Brill v. County of Los Angeles, 16 Cal.2d 726, 732--736, 108 P.2d 443; Stewart, etc., Co. v. County of Alameda, 142 Cal. 660, 665, 76 P. 481; Outer Harbor Co. v. Los Angeles, 49 Cal.App. 120, 130, 193 P. 137.)

Government Code section 39581 states that 'The amount of the assessment shall be collected at the time and in the manner of ordinary municipal taxes.' Section 39583 provides that 'Laws relating to the levy, collection, and enforcement of county taxes apply to such special assessment taxes.' Thus, although section 39585 provides that 'A tax . . . shall not be refunded unless a claim is filed with the clerk of the legislative body . . .' these other sections make all relevant provisions of the Revenue and Taxation Code applicable to assessments for weed abatement under the Government Code. As stated in Hellman v. City of Los Angeles, 147 Cal. 653, 655, 82 P. 313, 314 (in reference to Political Code section 3819, the predecessor to Revenue and Taxation Code section 5136): 'It is quite plain that section 3819, found in chapter 7 (seven) of the Political Code, under the title of 'Collection of Property Taxes,' is a part of the 'mode and manner' of collecting state and county taxes, and is none the less a part of that mode and manner in that it deals with the right of the taxpayer to pay under protest. It would be absurd to say that the mode and manner of collecting taxes was limited solely to the right of the state and its tax collectors, and had reference only to the duties of the taxpayer, and no pertinency whatever to the taxpayer's correlative rights. It is a provision definitely declaring a certain mode and manner in which the taxpayer may pay his taxes and preserve his rights, in case the assessment and levy should be found void.'

Thus, section 39583, in calling for application of '(l)aws relating to the levy, collection, and enforcement of county taxes,' must be read to include the procedures relating to taxes paid under protest. In light of the assessment design in the Government Code, based on a borrowing of relevant tax laws, the dual scheme for recovery envisioned by the Revenue and Taxation Code must be preserved. The administrative claims provisions of Government Code section 39585, so similar in their limitations to Revenue and Taxation Code section 5097, cannot be read to preclude utilization of the alternative judicial recovery system, contained in the tax laws expressly made applicable by Government Code section 39583.

Section 376 of the Los Angeles Charter, also urged by appellant (apparently for the first time on this appeal) is likewise not a bar to the instant suit. That general claims provision is not controlling in suits for taxes paid under protest. (Southern Cal. Tel. Co. v. Los Angeles, 45 Cal.App.2d 111, 127--128, 113 P.2d 773; cf. Brill v. County of Los Angeles, supra, 16 Cal.2d 726, 108 P.2d 443; Signal Oil & Gas Co. v. Bradbury, 183 Cal.App.2d 40, 48--53, 6 Cal.Rptr. 736.)

II

Appellant next contends that respondents were precluded from bringing the action below because they failed to exhaust their available administrative remedies.

Several sections of the Government Code ³ set forth the remedy asserted by appellant as a bar to the suit. Notice of the hearing provided by these sections was sent by appellant to respondents. The notice stated, as specified in section 39566, that owners having objections to the proposed abatement should attend a city council meeting at 10:00 a.m. on February 11, 1969, 'when their objections will be heard...