Bennett v.
State Bd. of Equalization





















Filed 2/5/13
Bennett v. State Bd. of Equalization CA3











NOT TO
BE PUBLISHED





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----






>

STEPHEN H. BENNETT, Plaintiff and Appellant, v. STATE BOARD OF EQUALIZATION, Defendant and Respondent.

C070263 Super. Ct. No. 34201180000911CUWMGDS

Plaintiff Stephen H. Bennett, an
accountant acting without counsel, believes defendant State Board of Equalization
(BOE) has misinterpreted statutes implementing Proposition 13, regarding when
real property may be reassessed. After
filing objections to various BOE publications, Bennett filed a href="http://www.fearnotlaw.com/">mandamus petition to compel BOE to change
its interpretation. The trial court
sustained without leave to amend BOE’s demurrer, based on lack of standing, and
Bennett timely appeals from the judgment.
We agree with the trial court, and therefore shall affirm.





BACKGROUND

By statute, BOE gives directions to local property tax
assessors. (See Gov. Code, §
15608.) Very broadly speaking,
Proposition 13 limits reassessment of real property except when a “change in
ownership” occurs. (See Cal. Const., art. XIII A, §
2, subd. (a).) Urgent legislation
implementing Proposition 13 was passed, effective July
10, 1979. (See Stats. 1979, ch. 242.) This legislation, based on a task force
report, defined what constitutes a “change of ownership” under Proposition
13. (See Auerbach v. Assessment Appeals Bd. No. 1 (2006) 39 Cal.4th 153,
160-165; Phelps v. >Orange >County> Assessment Appeals Bd. No. 1 (2010) 187 Cal.App.4th
653, 658-659.) The definitions are
located in Chapter 2 of Part 0.5 of Division 1 of the Revenue and Taxation Code
(Rev. & Tax. Code, § 60, et seq.), and BOE has adopted regulations fleshing
out these definitions (see Cal. Code Regs., tit. 18, § 462.001, et seq.).

Bennett’s writ petition alleges that although the 1979
implementing legislation was prospective in effect, BOE has improperly
interpreted it to be retrospective.
Bennett sought declarations stating Part 0.5 of the Revenue and Taxation
Code “has no retrospective effect on any owner’s real property rights,’” BOE
has improperly instructed assessors “to apply Part 0.5 retrospectively,” BOE
acted “unlawfully” by denying Bennett’s requests that BOA amend its rules and
depublish certain documents, and BOE violated its duty to sue assessors to
prevent “giving retrospective effect to Part 0.5.” Bennett’s pleadings show he made unsuccessful
efforts to convince BOE to change its understanding of what actions trigger a
change of ownership.

The trial court sustained BOE’s demurrer without leave to
amend on two grounds: “(1) [Bennett]
lacks standing based on a beneficial interest or standing to enforce a public
duty and (2) an adequate legal remedy in the form of a refund action pursuant
to Revenue and Taxation Code section 5140 precludes a mandate action.”





Bennett timely appealed from the judgment.

>DISCUSSION

We must begin by presuming the trial court was correct,
but Bennett has failed to present coherent arguments, supported by pertinent
authority, explaining how the trial court erred, therefore he has failed in his
basic duty, as an appellant, to show error.
(See In re S.C. (2006) 138
Cal.App.4th 396, 408.)href="#_ftn1"
name="_ftnref1" title="">[1]

The trial court correctly found Bennett lacked standing
because he was not a beneficially interested party.



“As a general rule, a party must be ‘beneficially interested’ to
seek a writ of mandate. (Code Civ.
Proc., § 1086.) ‘The requirement that a
petitioner be “beneficially interested” has been generally interpreted to mean
that one may obtain the writ only if the person has some special interest to be
served or some particular right to be preserved or protected over and above the
interest held in common with the public at large. [Citations.] . . . “One who is in fact
adversely affected by governmental action should have standing to challenge
that action if it is judicially reviewable.”’
[Citations.] The beneficial
interest must be direct and substantial.”
(Save the Plastic Bag Coalition v.
City of Manhattan Beach (2011) 52 Cal.4th 155, 165.)

In Sacramento County Fire Protection Dist. v. Sacramento County Assessment
Appeals Bd. (1999) 75 Cal.App.4th 327 (SCFPD),
we addressed standing in the context of a dispute about property tax
assessments. We concluded a fire
district lacked standing to challenge a finding lowering a property owner’s
assessment, although it would impact the budget of all taxing agencies within
the county, in part stating: “With
respect to the assessed valuation assigned to a particular piece of property,
the District does not have ‘some special interest to be served or some
particular right to be preserved or protected over and above the interest [it
holds] in common with the public at large.’
[Citation.] The District and its
residents, and indeed the public at large, share a common interest in seeing
that the District’s public function is effectively funded.” (SCFPD,
supra, 75 Cal.App.4th at pp. 332-334.)
Nor did we permit standing based on a “public interest exception,” in
part stating, “This is not a situation where the issue raised by the District
will be removed from judicial review if standing is denied.” (SCFPD,
supra, at p. 334.)

Similarly, Bennett has no special interest in proper
assessments to advance beyond the interest of all citizens, nor is “public
interest” standing needed.href="#_ftn2"
name="_ftnref2" title="">[2]

As the trial court correctly found, Bennett has an adequate
remedy for any particular assessment that violates Proposition 13, as does any
other aggrieved party, namely, a tax refund suit. (See Rev. & Tax Code, § 5140; 9 Witkin,
Summary of Cal. Law (10th ed. 2005) Tax, § 292, pp. 426-427.) Not only is that an adequate remedy, the trial court correctly viewed it as the >sole remedy for imposition of an
improper tax, in light of the anti-injunction rule. (Cal. Const., art. XIII, § 32; see >State Bd. of Equalization v. Superior Court
(1985) 39 Cal.3d 633, 638-640; Pacific
Gas & Electric Co. v. State Board of Equalization (1980) 27 Cal.3d 277,
280 [“a court order invalidating an assessment will in effect ‘prevent or
enjoin the collection’ of the tax”].)

Accordingly, Bennett cannot compel BOE to change the
manner in which it interprets the statutes implementing Proposition 13. If a property owner believes an assessor has
improperly found a change of ownership, the property owner may pay the tax,
file a tax refund suit, and litigate the matter.

>DISPOSITION

> The judgment is
affirmed. Bennett shall pay BOE’s costs
on appeal. (Cal. Rules of Court, rule
8.278.)







DUARTE , J.







We concur:







BLEASE , Acting P. J.







ROBIE , J.