Valley Fair Fashions, Inc. v. Valley Fair

• Decision Date: 17 October 1966
• Citation: 245 Cal.App.2d 614,54 Cal.Rptr. 306
• Court: California Court of Appeals Court of Appeals
• Parties: VALLEY FAIR FASHIONS, INC., Plaintiff and Appellant, v. VALLEY FAIR, a corporation, and George B. Noll, as County Assessor of the County of Santa Clara, Defendants and Respondents. Civ. 22871.

Page 306

54 Cal.Rptr. 306

245 Cal.App.2d 614

VALLEY FAIR FASHIONS, INC., Plaintiff and Appellant, v. VALLEY FAIR, a corporation, and George B. Noll, as County Assessor of the County of Santa Clara, Defendants and Respondents.

Civ. 22871.

District Court of Appeal, First District Division 3, California.

Oct. 17, 1966.

Hearing Denied Dec. 14, 1966.

Benjamin D. Frantz, Sacramento, for appellant.

Erskine & Tulley, San Francisco, for respondent Valley Fair.

Spencer M. Williams, County Counsel, County of Santa Clara, Marvin G. Haun, Deputy County Counsel, San Jose, for respondent George B. Noll.

DRAPER, Presiding Justice.

In this action, plaintiff lessee seeks a declaration that tax assessments levied by defendant Noll as county assessor are invalid, or if valid, that defendant lessor be declared obligated to pay the taxes or to reimburse plaintiff therefor. Each defendant demurred. Both demurrers were sustained without leave to amend, and the action was dismissed. Plaintiff appeals.

Respondent assessor argues that only two remedies are available to plaintiff: payment of the tax and verified claim for refund, followed by action if rejected (Rev. & Tax Code, §§ 5096, 5097, 5103), or payment under protest and action to recover (Rev. & Tax Code, §§ 5136, 5138). Mandamus lies, without prior payment of the tax, only if these remedies at law are inadequate in the particular situation (Star-Kist Foods, Inc. v. Quinn, 54 Cal.2d 507, 6 Cal.Rptr. 545, 354 P.2d 1). By analogy to the cases holding declaratory relief unavailable when a statute expressly bars mandate or injunction as a remedy for the taxpayer (see cases cited at 2 Witkin, Calif.Proc., § 453(1)), it may be argued that declaratory relief is not available when mandate is not. But we do not decide whether the remedies at law are adequate here to bar mandate, and thus declaratory relief, since it is clear that the assessment is valid. We note, however, the policy favoring prompt payment of taxes (Sherman v. Quinn, 31 Cal.2d 661, 665, 192 P.2d 17).

The assessments complained of are for three years ending in 1964, and cover improvements admittedly made and paid for by plaintiff tenant, but for which it contends defendant lessor reimbursed it.

Taxable property may be assessed 'to the persons owning, claiming, possessing, or controlling it' (Rev. & Tax. Code, § 405). On its face, this section authorizes assessment to one not the owner, if he possesses or controls the property. Improvements may properly be assessed to the tenant (Tilden v. County of Orange, 89 Cal.App.2d 586, 201 P.2d 86) or personal property to the consignee (S. & G. Gump Co. v. City and County of San Francisco, 18 Cal.2d 129, 114 P.2d 346, 135 A.L.R. 595) in possession. Late in 1946, it was held that improvements added and owned by a tenant could be assessed, together with the real property so improved, to the owner of the land. (Trabue Pittman Corp. v. County of Los Angeles, 29 Cal.2d 385, 175 P.2d 512.) In 1947, the Legislature added a new section (Rev. & Tax, Code, § 2188.2), providing '(w)henever improvements are owned by a person other than the owner of the land on which they are located, the owner of the improvements or the owner of the land may file with the assessor a written statement before the lien date attesting to their separate ownership, in which event the land and improvements shall not be assessed to the same assessee.'

By its terms, this section applies only when the improvements are owned by someone other than the owner of the land. Here the landowner is alleged to own the improvements. Thus the statements allegedly filed with the assessor, merely...