Farr
v. County of Nevada

























Filed
7/10/13 Farr v. County of Nevada 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Nevada)

----






>

JOHN M. FARR, Plaintiff and Appellant, v. COUNTY OF NEVADA, Defendant and Respondent.

C068049 (Super. Ct. No. T083176C)

John M. Farr appeals pro se
from an order of the trial court denying his motion for an award of attorney
fees, and granting the motion of the County of Nevada (County) to strike
virtually all of the costs sought in Farr’s memorandum of costs.

In the litigation underlying the
present appeal, Farr sought review in the trial court of a property tax
assessment decision of the Nevada County Assessment Appeals Board (the Board)
regarding the value of his owner-occupied single-family home. The trial court upheld the Board’s decision,
but in Farr v. County of Nevada
(2010) 187 Cal.App.4th 669 (Farr I),
this court reversed the trial court’s judgment and remanded the matter to the
Board for further proceedings, based on our conclusion that the Board failed to
apply the correct burden of proof. (Id.
at pp. 674, 683.) Having prevailed
in his appeal in Farr I, Farr was
awarded his costs on appeal. (>Id. at p. 687.)

After the remittitur issued, Farr
filed in the trial court a memorandum of costs on appeal, seeking $4,202 in
costs, including those associated with his appeal of the Board’s decision to
the trial court. Farr also filed a
motion seeking $13,500 in attorney fees, pursuant to Revenue and Taxation Code
sections 1611.6 and 5152.href="#_ftn1"
name="_ftnref1" title="">[1] The County opposed Farr’s motion for attorney
fees and moved to tax costs. The trial
court awarded Farr costs in the amount of $655 only, and denied his request for
attorney fees.

Farr contends the trial court erred
by not awarding him the costs associated with his underlying challenge in the
trial court to the Board’s decision. He
also contends the court erred in denying his request for attorney fees. As to costs on appeal, we conclude the trial
court did not abuse its discretion to award $655, the cost of filing the civil
notice of appeal. As to attorney fees,
sections 1611.6 and 5152 do not apply to this case. Therefore, the trial court properly denied
Farr’s motion for attorney fees. We
affirm the trial court’s order.

BACKGROUND

>Farr’s Appeal of
the Property Assessment

The underlying dispute in this case
arose between Farr, who built a new house on property his family had long owned
in Nevada
County, and the County (as represented by its assessor’s office) over the
value of property improved by Farr. As
set forth in our prior published opinion in this case, Farr began construction
in 2004. The house received a
40 percent completion property tax assessment of $265,000 at the end of
2004; in 2006, the assessor issued a supplemental assessment of $1.35 million,
bringing the total assessment for the newly constructed house to $1.6 million
for the 2005/2006 tax year. (>Farr I, supra, 187 Cal.App.4th> at p. 674.)

Farr challenged the href="http://www.mcmillanlaw.com/">supplemental assessment and filed a
formal administrative appeal. (>Farr I, supra, 187 Cal.App.4th> at p. 675.) In Farr’s view, the value of his improved
property was $715,000. The hearing on
Farr’s administrative appeal before the Board spanned several months, during which
the assessor issued its 2006/2007 regular assessment of the property and twice
reduced (to $1.21 million) its evaluation of the value of Farr’s home. (Id.
at pp. 675-676.) At the hearing,
the Board accepted the assessor’s assertion that Farr was required to present
his evidence first, because the property was not Farr’s principal place of
residence (id. at p. 675) and, when
the Board’s counsel discussed the “burden” or “presumption” applicable to its
consideration of the evidence presented during Farr’s administrative appeal,
counsel advised the Board (among others) that “the basic presumption in most
cases is that the Assessor has done his or her duty correctly, and therefore,
his or her opinion is the correct one absent sufficient evidence by the other
side to overcome that presumption.” (>Id. at pp. 676-677.)

The Board’s written findings of fact
and decision contained its decision that “enough evidence had been introduced
that neither party was likely to gain much advantage from a presumption.” (Farr
I, supra, 187 Cal.App.4th at
p. 677.) The Board accepted the
comparable sales values proffered by the assessor, and rejected Farr’s analysis
of the value of his house as too low, given market conditions in September
2005. (Id. at pp. 677-678.) It
directed the assessor to enroll a value for the property of $1.29 million for
the supplemental assessment, and to adjust the regular 2006/2007 values in
accordance with Proposition 13. (>Id. at p. 678.)

Farr appealed the Board’s decision
and claimed a refund from the County Board of Supervisors; when that appeal was
denied, Farr filed an action in the trial court, first as a petition for writ
of mandate, then as a complaint against the County for a tax refund and order
permanently enjoining discrimination against part-time residents in the
assessment valuation of new construction.
(Farr I, supra, 187
Cal.App.4th at p. 678.) The trial court rejected Farr’s claims,
upheld the decision of the Board, and denied Farr any relief. (Ibid.)


Farr appealed the trial court’s
decision to this court, asserting (among other things) that the Board had made
legally deficient findings of fact, discriminated against him as a part-time
resident of the area, applied incorrect valuation methods, and misapplied the
burden of proof required by section 167, subdivision (a) (section 167(a)),
which states, “there shall be a rebuttable presumption affecting the burden of
proof in favor of the taxpayer or assessee who has supplied all information as
required by law to the assessor in any administrative
hearing involving the imposition of a tax on an owner-occupied
single-family dwelling.” (>Farr I, 187 Cal.App.4th> at p. 683, italics omitted.)href="#_ftn2" name="_ftnref2" title="">[2]

In resolving the issues raised by >Farr I, we focused our analysis on the Board’s
failure to apply the correct burden of proof, holding that “Farr’s hearing
before the Board was not conducted pursuant to section 167(a) or the applicable
regulations,” the latter of which directs that the Board “shall not require the
applicant to present evidence first when the hearing involves . . .
[t]he assessment of an owner-occupied single-family dwelling.” (Farr
I, supra, 187 Cal.App.4th at p. 683.)
We held the Board had violated section 167(a) and failed to proceed in
the manner required by law when it failed to place the burden of proof
concerning the valuation of Farr’s property on the assessor (>id. at pp. 678-683); moreover, the
Board’s failure to apply the proper burden of proof required that its decision
be vacated and the matter remanded to the Board for a new hearing to be
conducted “in accordance with section 167(a),” i.e., applying the correct
burden of proof. (Id. at p. 685.)

Our opinion in Farr I did not expressly address Farr’s contention on appeal that
the Board made legally deficient findings of fact. We did, however, “make a few comments for
purposes of such further proceedings before the Board.” (Farr
I, supra, 187 Cal.App.4th at
p. 686.) We noted the record of
such further proceedings must show the assessor’s explanation for making any
upward or downward adjustments to sales data supplied by Farr to ensure
comparability, so the Board may have an evidentiary basis for its
consideration. (Ibid.) We also noted “the
Board’s written findings of fact (. . . § 1611.5) should include
all legally relevant subconclusions supportive of its ultimate decision so that
a reviewing court is able to trace and adequately examine the Board’s mode of
analysis” (ibid.) and suggested the
Board “should address specifically its reasoning for accepting or rejecting
each issue raised by the parties.” (>Ibid.)


As the prevailing party, Farr was
awarded “his costs on appeal.” (>Farr I, supra, 187 Cal.App.4th> at p. 687.)

>Farr’s
Memorandum of Costs and Motion for Attorney Fees

After the remittitur issued, Farr
filed a memorandum of costs on appeal. He sought $4,202, of which $2,126 represented
filing fees, and $475 represented amounts sought for preparation of the clerk’s
transcript. Farr also filed a motion
seeking $13,500 in attorney fees, i.e., “the reasonable fees he has paid two
attorneys for their work on the preparation of [his] pleadings in this
case.” Farr argued he should recover
attorney fees because “the Court of Appeal found that the [Board’s] findings of
fact were deficient” and section 1611.6 allows a recovery of attorney fees “if
the findings [of fact] are found by a reviewing court to be so deficient that a
remand to the county board is ordered to secure reasonable compliance with the elements
of findings required by Section 1611.5.”
Alternatively, Farr argued an award of attorney fees is warranted
pursuant to section 5152href="#_ftn3"
name="_ftnref3" title="">[3] because the
assessor failed to assess his property “in accordance with law.”

The County opposed Farr’s motion for
attorney fees, arguing the Revenue and Taxation Code provisions upon which Farr
relied are inapplicable. It also moved
to strike virtually all the costs claimed by Farr in his memorandum of costs,
arguing that Farr may recover only $655, the cost of filing his civil notice of
appeal.

Following an unreported hearing, the
trial court granted the County’s motion to strike costs, and reduced Farr’s
total cost recovery to $655. The court
also denied Farr’s motion for attorney fees; it found that neither section
1611.6 nor 5152 warranted an award of attorney fees in this case.

DISCUSSION

I

Applicable Standards of Review

A judgment or order of the trial
court is presumed to be correct, and all intendments and presumptions are
indulged to support it on matters as to which the record is silent. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) It is the appellant’s burden to affirmatively
demonstrate reversible error. (>Denham, at p. 564; >In re Marriage of Gray, at
pp. 977-978.)

It is the appellant’s burden to
provide an adequate record to assess claims of error. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must also present an analysis of
the facts and legal authority on each point made, and must support the analysis
with appropriate citations to the material facts in the record. If he or she fails to do so, the argument is
forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

When, as here, an appeal is “on the
judgment roll” (Allen v. Toten (1985)
172 Cal.App.3d 1079, 1082-1083), we must conclusively presume evidence was
presented that is sufficient to support the court’s findings. (Ehrler
v. Ehrler (1981) 126 Cal.App.3d 147, 154.)
Our review is limited to determining whether any error “appears on the
face of the record.” (>National Secretarial Service, Inc. v.
Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court,
rule 8.163.)

Lack of legal counsel does not
entitle a litigant to special treatment.
A party representing himself or herself is to be treated like any other
party and is entitled to the same, but no greater, consideration than other litigants
and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see >Leslie v. Board of Medical Quality Assurance
(1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the
“the same ‘restrictive procedural rules as an attorney’”].)

>II

>Granting of the
County’s Motion to Strike Costs

>A.

>Costs on Appeal
Do Not Include Trial Court Costs

We address first Farr’s apparent
misconception that, because he was awarded costs on appeal in >Farr I, he should have been permitted to
recover all of the costs he incurred during the litigation of this matter,
whether in the trial court or in the Court of Appeal.

Although the actual assessment of
costs awarded on appeal is made by the trial court after the issuance of the
remittitur (see Bell v. Superior Court
(1906) 150 Cal. 31, 33), the right to recover costs on appeal is governed
solely by California Rules of Court, rule 8.278 (rule 8.278). (Musaelian
v. Adams (2011) 197 Cal.App.4th 1251, 1259.) Rule 8.278 provides in part: “(a)(1) Except as provided in this rule, the
party prevailing in the Court of Appeal in a civil case other than a juvenile
case is entitled to costs on appeal.
[¶] . . . [¶] (d) . . . [¶]
(1) A party may recover only the following costs, if
reasonable: [¶] (A) Filing fees; [¶]
(B) The amount the party paid for any portion of the record,
whether an original or a copy or both . . . ; [¶]
(C) The cost to produce additional evidence on appeal; [¶]
(D) The costs to notarize, serve, mail, and file the record, briefs,
and other papers; [¶] (E) The cost to print and reproduce any
brief, including any petition for rehearing or review, answer, or reply; and [¶]
(F) The cost to procure a surety bond, including the premium and
the cost to obtain a letter of credit as collateral, unless the trial court
determines the bond was unnecessary.
[¶] (2) Unless the court
orders otherwise, an award of costs neither includes attorney’s fees on appeal
nor precludes a party from seeking them under [California Rules of Court] rule
3.1702.”

It is apparent from the plain
reading of rule 8.278 that costs incurred in the trial court, if any, are not
awarded by this court as an element of costs on appeal. Rather, a party who has prevailed “in the
Court of Appeal” and thereby been awarded costs on appeal pursuant to that rule
has been awarded only costs he or she incurred in connection with proceedings
in the Court of Appeal, as permitted by rule 8.278(d). Costs and/or attorney fees incurred during
proceedings in the trial court are not included in an award of costs on appeal,
even if those trial court proceedings are described colloquially as
representing an “appeal” from an administrative decision of the Board.

Accordingly, Farr’s assertions that
his “‘costs on appeal’ should also include costs associated with [his] appeal
in Superior Court, which was the third step in his long and arduous multi-step
appeals process” are without merit.

>B.

>Farr Failed to
Show an Abuse of Discretion

Among the costs on appeal claimed by
Farr was $475 for preparation of a clerk’s transcript (item 2). The trial court granted the County’s motion
to strike that cost.

“If the items appearing in a cost
bill appear to be proper charges, the burden is on the party seeking to tax
costs to show that they were not reasonable or necessary. On the other hand, if the items are properly
objected to, they are put in issue and the burden of proof is on the party
claiming them as costs.
[Citations.] . . . [B]ecause the right to costs is governed
strictly by statute [citation] a court has no discretion to award costs not
statutorily authorized.
[Citations.]” (>Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 774 and cases cited therein; see also >Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 855.)

The County moved to strike that item
on the ground there was no clerk’s transcript, as Farr had stipulated to use
the original superior court file in lieu of a clerk’s transcript. This challenge effectively shifted the burden
of proof to Farr to justify the item. (>Ladas v. California State Auto. Assn.,
supra, 19 Cal.App.4th at p. 774.)

Farr responded that, as to his “Cost
Item 2, it is true that no clerk’s transcript was prepared in this case,” but
he “paid the Nevada Superior Court to prepare a functionally equivalent
[original superior court file].” The
trial court granted the County’s motion to strike Farr’s cost memorandum,
including item 2; it allowed only $655, the filing fee paid to the Court of
Appeal in connection with Farr I.

“A costs award is reviewed on appeal
for abuse of discretion.” (>El Dorado Meat Co. v. Yosemite Meat &
Locker Service, Inc. (2007) 150 Cal.App.4th 612, 617.) Farr has not shown on appeal that the trial
court abused its discretion in implicitly concluding Farr failed to sustain his
burden of proof on his claim for the cost of preparing the original superior
court file in lieu of a clerk’s transcript.
Farr conceded in the trial court that item 2, as claimed on his
memorandum of costs was incorrect, but failed to state the amount he hoped to
claim as a cost incurred for preparing an original superior court file.

As Farr has failed to demonstrate an
abuse of discretion, his contention on appeal must fail.

>III

>Denial of Farr’s
Motion for Attorney Fees

Where attorney fees are authorized
by statute they are authorized on appeal as well as in the trial court. (See People
ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater (1985) 165 Cal.App.3d 378, 387-388; Sessions Payroll Management, Inc. v. Noble Const. Co. (2000) 84
Cal.App.4th 671, 677.) Farr contends the
trial court erred in denying his motion for attorney fees because their
recovery is authorized by statute.

“A request for an award of attorney
fees is entrusted to the trial court’s discretion and will not be overturned in
the absence of a manifest abuse of discretion, a prejudicial error of law, or
necessary findings not supported by substantial evidence.” (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 577; see >Serrano v. Stefan Merli Plastering Co., Inc.
(2011) 52 Cal.4th 1018, 1025-1026.)

Farr contends the trial court erred
in failing to award reasonable attorney fees because (1) section 1611.6
entitles litigants to attorney fees when, as here, the Court of Appeal has
found, “indicated or implied,” the Board’s findings of fact were deficient; and
(2) section 5152 entitles litigants to attorney fees when, as here, the
Board failed to conduct Farr’s hearing according to applicable law. We disagree with both contentions.

>A.

>Denying Attorney
Fees under Section 1611.6 Was Not Error

Section 1611.5 requires the Board’s
findings “shall fairly disclose the board’s determination of all material
points raised by the party in his [or her] petition and at the hearing
including a statement of the method or methods of valuation used in appraising
the property.”href="#_ftn4"
name="_ftnref4" title="">[4] Section 1611.6 authorizes an award of
attorney fees if the court finds the county board’s findings are “so deficient
that a remand to the county board is ordered to secure reasonable compliance
with the elements of findings required by Section 1611.5.”href="#_ftn5" name="_ftnref5" title="">[5] (See also Cal. Code Regs., tit. 18, § 308(c)
[same].)

The trial court declined to award
attorney fees under section 1611.6. It
found that section inapplicable because, in the trial court’s view, >Farr I concludes only that the Board
failed to apply the statutory presumption required by section 167(a) affecting
the burden of proof in favor of Farr and made no “express finding” the Board’s
findings were so “deficient” as to require a remand so the Board could make the
legally required findings. Farr responds
that, by requiring the Board to hold a new hearing and prepare new findings of
fact in accordance with specific instructions (see Farr I, supra, 187 Cal.App.4th
at p. 686), this court “indicated or implied” the Board’s former
findings of fact were fatally deficient within the meaning of section 1611.6,
entitling him to attorney fees.

We agree with the trial court that
section 1611.6 is inapplicable. Although
Farr challenged the Board’s findings of fact as “legally deficient” in his
prior appeal (Farr I, supra, 187
Cal.App.4th at p. 678), >Farr I did not reach that issue. Rather, Farr
I expressly states that “our reason for reversing the judgment is based on
the Board’s failure to correctly apply the burden of proof and the presumption
of correctness in favor of the homeowner,” (id.
at p. 674) and it contains no finding, express or implied, regarding the legal
adequacy of the Board’s findings.
Specifically, the opinion in Farr
I says nothing about whether the findings adequately “disclose[d] the
board’s determination of all material points raised by [Farr] in his petition,”
as required by section 1611.5. Just as
cases are not authority for propositions they do not consider (>People v. Martinez (2000) 22 Cal.4th
106, 118), our prior opinion in Farr >I cannot be characterized as
representing a conclusion that “the findings [of fact] are found by a reviewing
court to be so deficient that a remand to the county board is ordered to secure
reasonable compliance with the elements of findings required by Section 1611.5”
(§ 1611.6), when it is silent on the point.

>B.

>Denying Attorney
Fees under Section 5152 Was Not Error

Section 5152 provides in pertinent
part that a plaintiff “shall be entitled to reasonable attorney’s fees as
costs” in “an action in which the recovery of taxes is allowed by the court, if
the court finds that the void assessment or void portion of the assessment was
made in violation of a specific provision of the Constitution of the State of
California, of this division, or of a rule or regulation of the board, >and the assessor should have followed
the procedures set forth in Section 538 in lieu of making the assessment.” (Italics added.) Section 538 requires an assessor to bring a
declaratory relief action against the Board rather than apply a specific
statute, rule, or regulation he or she believes to be unconstitutional or
invalid. (§ 538, subd. (a).) Because “‘certain assessors have chosen not
to follow [the property tax laws], resulting in assessments causing the very
hardship sought by the Legislature to be avoided,’” section 5152 was enacted
with the intention that it act “as a primary tool to compel local assessors to
follow state property tax law.” (>Prudential Ins. Co. v. City and County of
San Francisco (1987) 191 Cal.App.3d 1142, 1160-1161.)

The trial court declined to award
attorney fees under this provision because the assessment of Farr’s property
“was no[t] found to be void” by this (or, presumably, any) court. Farr argues that by vacating the decision of
the Board and ordering it to hold a new hearing to establish a valid assessment
for Farr’s property, the Board’s previous assessment was effectively
“voided.”

We agree with the trial court’s
determination that an award of attorney fees under section 5152 was not
appropriate. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [we
review the correctness of the trial court’s ruling, not its reasoning].) Section 5152 does not apply whenever an
assessor merely fails to apply a statute or regulation. “Sections 5152 and 538 require a cognitive
decision on the part of the assessor that a particular provision, rule or
regulation is unconstitutional or invalid either on its face or as applied to
the circumstances in the case.” (>Phillips Petroleum Co. v. County of Lake
(1993) 15 Cal.App.4th 180, 197-198.)
Accordingly, a factual finding by the court “that the reason the
assessor did not apply a particular provision was that he or she believed it to
be unconstitutional or invalid” is a prerequisite to an attorney fee award
under this section. (>Ibid., see also Prudential Ins. Co. v. City and County of San Francisco, supra, 191
Cal.App.3d at pp. 1159-1160.) There was
no such finding here. Lacking this
prerequisite finding, no award of attorney fees under section 5152 was
justified.

Having concluded the trial court did
not err in denying Farr’s motion for an award of attorney fees under either
section 1611.6 or 5152, we do not consider his contentions on appeal that the
amounts sought were reasonable.

>C.

>Alternate
Theories Raised for the First Time on Appeal

For the first time on appeal, Farr
suggests he may recover attorney fees under a private attorney general theory
pursuant to Code of Civil Procedure section 1021.5,href="#_ftn6" name="_ftnref6" title="">[6]
or
that he should have been permitted to recover his attorney fees as an element
of his costs on appeal.

Because Farr did not raise either
Code of Civil Procedure section 1021.5 or his claim of entitlement to attorney
fees as costs as an independent basis for awarding fees in the trial court,
both arguments are forfeited. (See >City of San Diego v. D.R. Horton San Diego
Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 [“Contentions or theories
raised for the first time on appeal are not entitled to consideration”].)

DISPOSITION

The
trial court’s order is affirmed. County
of Nevada is awarded its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1).)







HOCH , J.







We concur:







BLEASE , Acting P. J.







BUTZ , J.