Kramer v. Community Redevelopment Agency of Los Angeles

Filed 10/27/09 Kramer v. Community Redevelopment Agency of Los Angeles CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith C. Chirlin, Judge. Affirmed.

Stradling Yocca Carlson & Rauth, Jennifer Yu and Allison E. Burns for Plaintiffs and Appellants.

Meyers, Nave, Riback, Silver & Wilson, David Skinner and JoAnn Victor for Defendant and Respondent, Community Redevelopment Agency of the City of Los Angeles, California.

Rockard J. Delgadillo, City Attorney, Laurie Rittenberg, Assistant City Attorney, and Gabriel S. Dermer, Deputy City Attorney, for Defendants and Respondents the City of Los Angeles, and the Los Angeles County Tax Collector.

introduction

Plaintiffs and appellants Stanley J. Kramer, individually, and as trustee of Stanley J. Kramer Trust, and Susan M. Kramer (the Kramers), appeal from a judgment in favor of defendants and respondents the City of Los Angeles (the City), the Los Angeles County Tax Collector (the County), and the Community Redevelopment Agency of the City of Los Angeles (the Agency), (sometimes collectively referred to herein as respondents). The Kramers sued respondents, contending that they were required to give the Kramers notice and an opportunity to vote in an election regarding creation of a Business Improvement District involving real property owned by the Kramers, citing California Constitution Article XIII D, section 6; Government Code section 53753; and Streets and Highways Code section 36623. Approval of the Business Improvement District would result in an increase in property related fees payable by property owners in the affected geographic area. Prior to the election at issue, however, the Agency had initiated eminent domain proceedings to acquire three parcels of the Kramers property within the proposed Business Improvement District. The trial court concluded that, because the court in the eminent domain action had issued an order granting the Agency the right to take possession of the Kramers property prior to the election, thus extinguishing the Kramers legal obligation to pay any special or general taxes on the property at issue, the respondents were not required to provide the Kramers with notice and an opportunity to vote in the election as to the property taken by the Agency. We conclude that the trial courts interpretation of the relevant statutory provisions was correct, and that respondents were not required to give the Kramers the notice and an opportunity to vote as they allege. We therefore affirm the judgment.

factual and procedural background

The Initiation of the Eminent Domain Action, and the Order for Prejudgment Possession

As of 2004, the Kramers were record owners of six parcels of property located near the intersection of Slauson Avenue and Central Avenue in Los Angeles (Assessors Parcel Numbers 6007-003-019, 6007-003-020, 6007-003-021, 6007-003-007, 6007-003-008, and 6007-008-007). On July 15, 2004, the Agency authorized adoption of a resolution of necessity, declaring that the public interest and necessity required the acquisition of certain real property for public use and improvement, namely, for the elimination of blight and for redevelopment purposes. Three of the Kramers six parcels were among the properties included in the resolution of necessity adopted by the Agency (Assessors Parcel Numbers 6007-003-019, 6007-003-020, 6007-003-021, hereafter the disputed parcels). The Agency filed an eminent domain action on the same date, July 15, 2004, in Los Angeles County Superior Court. On or about August 20, 2004, the Agency deposited with the clerk of the trial court $2,614,102, the probable amount of just compensation for the disputed parcels.^[1]

The Kramers challenged the Agencys right to take the property by eminent domain.

The Agency filed a first amended complaint in eminent domain on May 11, 2005. After a bench trial was held intermittently, concluding on September 23, 2005, the court issued a statement of decision on November 15, 2005. The court concluded that the Agency had prevailed on the legal issues tried in that phase, including the following: (1) the Agency had complied with the applicable requirements for owner participation for the taking of the disputed parcels; (2) the Agency made an adequate pre-condemnation offer to the Kramers; and (3) the Agencys taking of the disputed parcels qualified as a public use under federal law.

On December 16, 2005, the Agency deposited an additional $1,712,860 with the trial court, bringing the total amount of the probable compensation deposit to $4,326,962.

The court held a hearing on further legal issues on January 11, 2006, and entered an order on that date. The court found that the parties had agreed, by stipulation, that September 8, 2004, would be the date of valuation of the disputed parcels, and that the date of valuation was contractually binding. The court also found that part of the consideration for the contract was the Agencys agreement to defer taking possession of the disputed parcels until 15 days after the right to take trial, which took many months to conclude. In addition, the court found that the parties had agreed that the September 8, 2004 date was to apply if the court found that the Agency had the right to take, and the court had so found after a lengthy trial of multiple legal issues. Further, the court found that [n]o basis ha[d] been shown, nor pleading filed, for rescission of that contract.

The court issued an order for prejudgment possession of the disputed parcels on February 1, 2006. The order set forth that the effective date of possession was 90 days from the date of service of the order. Thereafter, the Agency effected service of the order for prejudgment possession on February 10, 2006. The Agency therefore had a right of possession as to the disputed parcels on May 11, 2006.

The Business Improvement District Approval Election

On July 25, 2006, the City conducted an election among the property owners within the area proposed to be redeveloped to determine whether to establish a Business Improvement District (BID) pursuant to the Property and Business Improvement District Law of 1994, Streets and Highways Code sections 36500 et seq. The disputed parcels, as well as the Kramers three other parcels (Assessors Parcel Numbers 6007-003-007, 6007-003-008, and 6007-008-007, the Kramers uninvolved parcels), were within the geographic area at issue. Approval of the BID would result in imposition of additional property related fees on owners of property within the geographic area of the BID.

The Agency cast yes votes as to the disputed parcels. The Agency provided the Kramers with notice and opportunity to vote on the BID only as to the Kramers three uninvolved parcels. The Kramers cast no votes as to those parcels. The BID passed by a vote of 53.11 percent in favor, and 46.89 percent opposed. The disputed parcels represented 3.68 percent of the BID votes. The Kramers contend that the BID election would have failed by a vote of 49.43 percent in favor and 50.57 percent opposed if the Kramers had been given the opportunity to cast no votes as to the disputed parcels. After the BID election, the County issued assessments against all properties within the BID. The Kramers assert that they received tax bills for and paid BID assessments against the disputed parcels, as well as the uninvolved parcels.

The Kramers Initiation of the Present Action

On November 28, 2006, the Kramers submitted a notice of claim pursuant to Government Code section 910 et seq. Respondents rejected the claim.

On July 9, 2007, the Kramers filed the present action, alleging causes of action for (1) fraud, (2) negligent misrepresentation, (3) violation of California Constitution Article XIII D, section 6, (4) violation of Government Code section 53753, (5) writ of mandate (Code Civ. Proc.,  1085), and (6) declaratory relief.

The County filed an answer on October 30, 2007.

The City filed an answer on November 14, 2007. It also filed a demurrer to the first, second, third, fifth, and sixth causes of action. The demurrer to the first and second causes of action was based on a claim of governmental immunity.

The Agency filed a joinder to the Citys demurrer on December 4, 2007, and filed an answer the following day.

On January 18, 2008, the trial court sustained the demurrer with leave to amend as to the first and second causes of action. It overruled the demurrer as to the remaining causes of action.

The Kramers filed a first amended complaint on February 15, 2008.

The City and County filed a demurrer to the first and second causes of action only (fraud and negligent misrepresentation, respectively), on the grounds of governmental immunity. The Agency filed an answer, and joined in the demurrer.

On April 22, 2008, the trial court sustained, without leave to amend, the demurrer.

The Motion for Judgment on the Pleadings

On July 7, 2008, the Agency filed a motion for judgment on the pleadings as to all of the remaining causes of action. It also filed a request for judicial notice. The City and County filed a joinder to the Agencys motion for judgment on the pleadings.

The Kramers filed a motion to strike portions of the joinder on the basis that the City had previously demurred unsuccessfully to the fifth and sixth causes of action, then improperly attacked the same causes of action in the motion for judgment on the pleadings. (Code Civ. Proc.,  438, subd. (g).)

After hearing argument and taking the matter under submission, on October 9, 2008, the trial court overruled the Kramers motion to strike, granted the motion for judgment on the pleadings, and granted the City and Countys joinder. The court explained its reasoning as follows: [A] landowner in California is permanently deprived of all of his rights in property sought by a public agency when the agency exercises its option to deposit estimated value and obtain early possession for the intended public use[;] a constitutional taking occurs at this time. . . . Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790 at 801. By stipulation, Plaintiffs agreed to 9/8/04 as the date of valuation for the Take Property. . . . [] The court confirmed [the Agencys] right to take the property in 11/05 . . . and granted an order for prejudgment possession of the Take Property on 2/1/06 . . . , which specified that the effective date of possession was 90 days from the date of service of the order. By that time, [the Agency] had made a deposit of probable compensation. The court noted that the judgment in condemnation in the eminent domain action stated that the subject property was exempt from general and special county taxes as of May 11, 2006, and all such taxes were to be canceled after that date. As to the notice required by Government Code section 53753 and the other statutory provisions relied upon by the Kramers, the court ruled that [i]t is nonsensical to require notice regarding the imposition of assessments to an individual or entity that does not have responsibility for payment of taxes on the property.

The trial court therefore granted the motion for judgment on the pleadings, noting that the fifth and sixth causes of action, requesting a writ of mandate and declaratory relief, necessarily failed along with the third and fourth causes of action based upon statutory violations.

Having sustained without leave to amend respondents demurrer as to the first and second causes of action for fraud and negligent misrepresentation, and having granted the motion for judgment on the pleadings as to the remaining causes of action, the trial court subsequently entered judgment of dismissal in favor of respondents. The Kramers filed a timely notice of appeal. That matter is now before us in the present appeal.

Subsequent Trial Phases in the Eminent Domain Action

At the same time the present action was pending, the eminent domain action was also proceeding.

By stipulation filed with the court in the eminent domain action on December 6, 2006, the Agency and the Kramers had agreed to the withdrawal of $3,680,000 of the probable compensation deposit for payment to the Kramers. The parties anticipated that the remediation costs would amount to an additional $1,150,000.

The Agency and the Kramers had previously agreed that, although the Kramers were permitted to withdraw money from the deposit of probable compensation, they would retain the right to appeal from the order finding the Agency had the right to take the disputed parcels, contrary to the usual expectation in such cases. (See Code Civ. Proc.,  1268.140, subd. (a)(2) [receipt by defendant of money deposited as probable compensation in condemnation proceedings shall constitute a waiver by operation of law of all claims and defenses except a claim for greater compensation.)

Two additional phases of the eminent domain trial were held, subsequent to the courts order in February 2006 that the Agency had a right to take possession of the disputed parcels. The valuation trial concluded on December 18, 2006, with a jury finding that the fair market value of the disputed parcels was $4,830,000. In addition, a goodwill valuation trial was conducted, and ended on September 6, 2007 (about two months after the Kramers had filed their complaint in the present action). In that phase, the jury found that there was no loss of business goodwill for which the Kramers should be compensated.

About one month after the trial court in the present action had sustained the respondents demurrer without leave to amend, disposing of the Kramers claims for fraud and negligent misrepresentation, but before respondents had brought their motions for judgment on the pleadings as to the remaining causes of action, the court in the eminent domain action entered the judgment in condemnation, on May 13, 2008. In that judgment, the eminent domain court ordered that, [a]s of May 11, 2006, the Subject Property shall be exempt from general and special county taxes and all such taxes shall be canceled after that date pursuant to Revenue and Taxation Code sections 4985 et seq. and 5081 et seq.

The court also noted in the May 2008 judgment in condemnation that the Agency and the Kramers had agreed to extend the Kramers possession of the disputed parcels until after the initial valuation trial for the real property concluded; as noted above, that phase of the trial ended on December 18, 2006. The Kramers thereafter remained in physical possession of the disputed parcels until March 3, 2008.

The eminent domain court filed the final order of condemnation, passing title to the disputed parcels to the Agency, on October 7, 2008. (Two days later, the trial court in the action now before us granted respondents motion for judgment on the pleadings, and later entered judgment in favor of respondents herein.)

The Kramers filed a notice of appeal from the final judgment of condemnation. That appeal is not currently before us in this case.

discussion

I. Standing to Appeal

The Agency contends that the Kramers do not have standing to appeal the judgment of dismissal that followed after the trial court sustained the demurrer to the causes of action for fraud and negligent misrepresentation, and granted the motion for judgment on the pleadings as to the remaining causes of action, because the Kramers were not injuriously affected by the respondents actions or the challenged orders. The Kramers contend they did not have notice of the BID election concerning the disputed parcels and were deprived of an opportunity to vote in that election. The Agency argues that the only harm that flowed from this lack of notice and participation was the imposition of certain tax assessments from creation of the BID. However, the Kramers were not injuriously affected because they could and should have sought relief from those assessments without involving the resources of the lower court. That is, the Kramers had a legal right to reject any tax assessments that grew out of the BID assessments because a court order freed them from any and all tax liability on the Subject Properties as of May 11, 2006. Thus, the Kramers could have refused to pay the taxes, or could have sought a refund of any taxes paid.

We conclude, however, that the Kramers have standing to appeal. They contend that they were wrongfully denied notice and the opportunity to vote based on their ownership of the three disputed parcels. Had they been permitted to cast votes based upon their ownership of the disputed parcels, in addition to the votes they were permitted to cast on the other three parcels which they undisputedly own, the election would have failed and the BID would not have been created. As such, they would not be required to pay the assessment based on their ownership of the uninvolved parcels, or based on their purported record ownership of the disputed parcels. While we conclude in this opinion that the Kramers were not entitled to vote on behalf of the disputed parcels, for purposes of standing on appeal, their interests in the uninvolved as well as the disputed parcels were injuriously affected, in an immediate, pecuniary and substantial manner, by the judgment challenged on appeal. We therefore entertain the appeal.

II. The Motion for Judgment on the Pleadings

The Kramers operative first amended complaint included causes of action for fraud, negligent misrepresentation, violation of Government Code section 53753, violation of article XIII D, section 6, of the California Constitution, writ of mandate, and declaratory relief.^[2] The trial court sustained respondents demurrer without leave to amend as to the causes of action for fraud and negligent misrepresentation, and respondents then brought a motion for judgment on the pleadings as to the remaining causes of action. The trial court granted the motion, and entered judgment in favor of respondents.

We first discuss the order granting judgment on the pleadings because it directly involves the linchpin common to all of the Kramers causes of action: whether respondents violated the provision of the California Constitution requiring voter approval of new taxes, and the two related statutes, Government Code section 53753 and Streets and Highways Code section 36623.

The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer: We treat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions of fact or law contained therein. We may also consider matters subject to judicial notice.^[[3]] We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any theory. [Citation.] (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.)

The Enactments at Issue

1. Article XIII D, Section 6, of the California Constitution^[4]

Article XIII D was adopted by voter initiative in 1996 as part of Proposition 218. Article XIII D sets forth procedures, requirements and voter approval mechanisms for local government assessments, fees, and charges. (Howard Jarvis Taxpayers Assn. v. City of Roseville (2002) 97 Cal.App.4th 637, 640.) Pursuant to article XIII D, section 6, when an agency proposes to increase or impose any property related fee or charge, it must provide, to the record owner of each parcel upon which the fee is proposed for imposition, written notice by mail of the following information: the amount of the fee, the basis upon which the amount was calculated, the reason for the fee, and the date, time, and location of a public hearing to be held regarding the proposed fee. (Art. XIII D,  6, subd. (a)(1).) The public hearing must be conducted not less than 45 days after the mailed notice and, at the hearing, the agency must consider all protests against the proposed fee. If written protests against the proposed fee are presented by a majority of the owners of the identified parcels, the agency shall not impose the fee. (Art. XIII D,  6, subd. (a)(2).) Article XIII D, section 6, subdivision (c), provides that [e]xcept for fees or charges for sewer, water, and refuse collection services, no property related fee or charge shall be imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the affected area. The election shall be conducted not less than 45 days after the public hearing. An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision.

2. Government Code Section 53753

In July 1997, the Legislature enacted the Proposition 218 Omnibus Implementation Act (Stats. 1997, ch. 38), on an urgency basis. As relevant here, the Act added various sections to the Government Code, in order to prescribe specific procedures and parameters for local jurisdictions in complying with Article XIIIC and Article XIIID of the California Constitution. (Legis. Counsels Dig., Sen. Bill No. 919 (1997-1998 Reg. Sess.).)

Specifically, Government Code section 53753, subdivision (b) provides: Prior to levying a new or increased assessment, or an existing assessment that is subject to the procedures and approval process set forth in Section 4 of Article XIII D of the California Constitution, an agency shall give notice by mail to the record owner of each identified parcel.^[5]

3. Streets and Highways Code Section 36623

The Kramers also alleged a violation of Streets and Highways Code, section 36623, part of the Property and Business Improvement District Law of 1994 (Sts. & Hy. Code,  36600 through 36671), which authorizes the creation of business improvement districts, based on the public interest to promote the economic revitalization and physical maintenance of the business districts of its cities. ( 36601, subd. (b).) In order to do so, the BID Law of 1994 allow[s] cities to fund business related improvements, maintenance, and activities through the levy of assessments upon the businesses or real property that benefits from those improvements. ( 36601, subd. (c).) Section 36623 was amended in 1999 (Stats. 1999, ch. 871 (Assem. Bill No. 1381),  3) as part of legislative enactments intended to make the BID Law of 1994 comply with Proposition 218 and its Omnibus Implementation Act (including Gov. Code,  53753) relating to notice, protest, and hearing requirements for levying a new or increased assessment. At issue here, section 36623, subdivision (a) provides: If a city council proposes to levy a new or increased property assessment, the notice and protest and hearing procedure shall comply with Section 53753 of the Government Code.

Statutory Interpretation

Our fundamental task in statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citation.] (People v. Cruz (1996) 13 Cal.4th 764, 774-445; accord, Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1013.) When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms. [Citations.] [Citation.] [] In examining the language of the statute, we must consider the context of the statute . . . and the statutory scheme of which it is a part. We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. [Citations.] [Citations.] If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. [Citation.] . . . . When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear. [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.] [Citations.] [Citation.] (Smith v. Workers Comp. Appeals Bd. (2002) 96 Cal.App.4th 117, 123-124. See also Howard Jarvis Taxpayers Assn. v. City of San Diego (1999) 72 Cal.App.4th 230, 235-236 [same manner of statutory construction applied regarding constitutional provision adopted by voters].)

If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such situations, we strive to select the construction that comports most closely with the Legislatures apparent intent, with a view to promoting rather than defeating the statutes general purposes. [Citation.] (Matus v. Board of Administration (2009) 177 Cal.App.4th 597, 606.)

Government Code section 53753, subdivision (b) requires that an agency shall give notice by mail to the record owner of each identified parcel, [p]rior to levying a new or increased assessment. The Kramers contend that they were entitled to receive notice of the BID election and an opportunity to vote on behalf of the disputed parcels, because they were the record owners of the disputed parcels.

The term record owner is defined in Government Code section 53750, subdivision (j): For purposes of Article XIII C and Article XIII D of the California Constitution and this article: [] . . . [] (j) Record owner means the owner of a parcel whose name and address appears on the last equalized secured property tax assessment roll, or in the case of any public entity, the State of California, or the United States, means the representative of that public entity at the address of that entity known to the agency. The Kramers quote only the first part of section 53750, which defines record owner as the owner of a parcel whose name and address appears on the last equalized secured property tax assessment roll. They contend that they were the record owners of the disputed parcels because they appeared on the last equalized secured property tax assessment roll at the time of the BID election, and that they were therefore entitled to cast the votes in the BID election pertaining to the disputed parcels. They assert that the Agency violated the statutes at issue by casting the votes pertaining to the disputed parcels, when the Kramers were plainly the record owners of the disputed parcels. We disagree.

By defining record owner as the owner of a parcel whose name and address appears on the last equalized secured property tax assessment roll, or in the case of any public entity . . . , means the representative of that public entity (italics added), Government Code section 53750, subdivision (j), makes clear that the record owner is not always the owner who appears on the last assessment roll. Rather, the Legislature recognized that the record owner of a parcel potentially subject to imposition of an assessment or property-related fee could be a public entity. The provision does not specify whether, under the circumstances before us where eminent domain proceedings have been initiated as to the parcels at issue, the record owner is the owner of the parcel listed on the last assessment roll, or the public entity. Thus, sections 53750 and 53753 are ambiguous with regard to the identity of the record owner for purposes of notice and voting opportunity under the present circumstances. The fact that the Kramers name and address appeared on the last equalized secured property tax assessment roll at the time of the BID election is not dispositive of their entitlement to cast the votes ascribed to the disputed parcels. We must construe the meaning of sections 53750 and 53753 in the context of the legislative purpose of Proposition 218, which those sections were designed to implement. We must also harmonize our interpretation of Proposition 218 and its related statutes with the statutory framework governing eminent domain proceedings.

Application of the Undisputed Facts to the Relevant Enactments

As previously noted, the material facts are undisputed. The parties agree that the Agency filed an eminent domain action regarding the disputed parcels in July 2004. The trial court in that action issued an order for prejudgment possession in February 2006, specifying that the Agency would have the right to take possession 90 days from the date of service of the order. The date on which the Agency acquired the right of possession of the disputed parcels turned out to be May 11, 2006. The BID election occurred in late July 2006.

In December 2006, the Agency and the Kramers stipulated to the Kramers receipt of $3,680,000 of the probable compensation deposit held by the trial court in the eminent domain action. Pursuant to a separate agreement between the Kramers and the Agency, the disputed parcels remained in the Kramers possession until March 3, 2008. The court in the eminent domain action entered a judgment in condemnation on May 13, 2008, in which it noted that the disputed parcels became exempt from general and special county taxes as of May 11, 2006. The eminent domain court filed the final order of condemnation, passing title to the disputed parcels to the Agency, on October 7, 2008.

The question before us is as follows: where a County agency initiates an eminent domain action with regard to property that is within a proposed business improvement district and therefore subject to a potential new property related fee or assessment, at what point does the private property owner, as condemnee, cease to be the record owner for purposes of entitlement to vote whether to accept the proposal for the BID and the related fee or assessment?

We conclude, as did the trial court, that the answer to that question depends upon whether, at the time of the BID election, the property owner has ceased to be legally obligated to pay any tax assessment or fee on the property at issue. The stated purpose of Proposition 218, the Right to Vote on Taxes Act, was to protect[] taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent. (Prop. 218,  1, 2. See Howard Jarvis Taxpayers Assn. v. City of San Diego, supra, 72 Cal.App.4th at p. 235.) By logical extension, the right to vote on imposition of a proposed tax or fee is coextensive with the legal obligation to pay the tax or fee. If eminent domain proceedings have progressed to the point at which the condemnee is no longer legally required to pay taxes on the subject property, then the condemnee is no longer the record owner of the property for purposes of entitlement to notice and the right to vote on proposed taxes. (Art. XIII D,  6; Gov. Code,  53750, 53753.)

The eminent domain law provides that, after condemnation proceedings are initiated, the plaintiff (the condemnor public entity) becomes liable for taxes and fees pertaining to the subject property from the date of apportionment. Section 1268.410 of the Code of Civil Procedure provides: As between the plaintiff and defendant, the plaintiff is liable for any ad valorem taxes, penalties, and costs upon property acquired by eminent domain prorated from and including the date of apportionment determined pursuant to Section 5082 of the Revenue and Taxation Code. Section 5082 of the Revenue and Taxation Code provides that the date of apportionment is the earliest of the following times: [] (a) The date the conveyance to the acquiring entity or the final order of condemnation is recorded. [] (b) The date of actual possession by the acquiring entity. [] (c) The date upon or after which the acquiring entity may take possession as authorized by an order for possession or by a declaration of taking. (Italics and boldface added.)

Here, the court in the eminent domain action recognized that the Agency had the right to take possession of the disputed parcels as of May 11, 2006, in accordance with the terms of the order of prejudgment possession issued by that court in February 2006, and as of May 11, 2006, the subject property became exempt from general and special county taxes. Thus, because the Kramers liability to pay any taxes, fees, or assessments related to the disputed parcels had been extinguished as of May 11, 2006, respondents were not required to provide the Kramers with notice of and an opportunity to vote on behalf of the disputed parcels in the BID election, held in late July 2006.

Case law discussing Californias statutory scheme regarding eminent domain also supports the respondents contention that the Kramers rights as to the disputed parcels were almost entirely extinguished when the Agency acquired the right to take possession. Californias quick-take law provides . . . for an order of possession upon deposit of estimated value. ([Code Civ. Proc.,]  1255.410.) The date of possession . . . may be stayed while the condemnee litigates a potentially meritorious claim that the public agency does not have the right to take the property by eminent domain ( 1255.430). . . . And title under California law does not pass until a final order of condemnation has been recorded. ( 1268.030.) (Redevelopment Agency v. Gilmore, supra, 38 Cal.3d at p. 800.) Under Californias quick-take statutes, the title which vests in the public entity is a defeasible one, in that a condemnee may still litigate the governments right to exercise the power of eminent domain against his property. [Citation.] (Ibid.) However, the California statutes . . . suggest an assumption that a constitutional taking occurs no later than the moment at which the public agency obtains the right of early possession. While the normal valuation date is either the date of commencement of proceedings, or of commencement of trial ( 1263.120, 1263.130), a different rule applies in quick-take situations. There, the land is to be valued as of the date of the deposit of estimated value which permits an order for early possession. ( 1263.110.) And any compensation awarded is to draw prejudgment interest from the date the agency takes possession. ( 1268.310, subd. (b).) [] These sections give effect to the fact that, except for defenses to the exercise of eminent domain, a landowner in California is permanently deprived of all of his rights in property sought by a public agency when the agency exercises its option to deposit estimated value and obtain early possession for the intended public use. We conclude, therefore, that a constitutional taking occurs at this time. (Id. at pp. 800-801, italics added, fn. omitted.)

In the case before us, because the Agency deposited the probable amount of compensation in the trial court in the eminent domain proceeding, and therafter obtained an order for prejudgment condemnation and the right to take possession of the disputed parcels, a taking had occurred. The Kramers were deprived of their rights in the property at that time, save the right to assert defenses to the Agencys exercise of eminent domain. One of the rights of which they were deprived was the right to notice and an opportunity to vote in the BID election.

Retention of Legal Title by the Kramers Was Irrelevant

The Kramers point out that they retained physical possession of the disputed parcels until March 3, 2008, and retained record legal title until October 7, 2008. Respondents do not dispute these assertions. However, the Kramers retention, at the time of the BID election, of physical possession of the property, and their holding of record legal title, do not alter our conclusion. Those facts are not determinative for purposes of Government Code section 53753 and article XIII D.

Under California law, title to condemned property does not pass until the final order of condemnation issues and is recorded. (See Code Civ. Proc.,  1268.030; Redevelopment Agency v. Gilmore, supra, 38 Cal.3d at p. 800.) However, as discussed above, the taking occurs at the time the public entity acquires the right to prejudgment possession. (Redevelopment Agency v. Gilmore, supra, 38 Cal.3d at pp. 800-801.) For purposes of the notice and voting rights set forth in Government Code section 53753 and article XIII D, it is of no significance that a final order of condemnation had not been recorded as of the date of the BID election.

The Kramers Payment of Taxes Was Erroneous and Irrelevant

The Kramers also assert that they continued to receive tax bills for the disputed parcels, and continued to pay them, through June 2009. Even assuming that the Kramers received and paid such bills, including the BID related fees, they were not the record owners for purposes of determining whether they were entitled to vote in the BID election. Respondents concede that any taxes or fees pertaining to the disputed parcels for which the Kramers were billed or which they paid after May 11, 2006, were billed and paid in error. As respondents point out, the Kramers remedy for such erroneous payment of taxes is found in the procedures outlined in Code of Civil Procedure sections 1268.430 and 1268.440. The Kramers could have sought reimbursement of the contested taxes when they submitted a memorandum of costs in connection with the condemnation action. (See Code Civ. Proc.,  1268.430.) Alternatively, the Kramers could seek a refund from the taxing authority if they paid the BID assessments and/or property taxes on the disputed parcels. (Code Civ. Proc.,  1268.440 [refund by private person or public entity for taxes paid on exempt property]; Rev. & Tax. Code,  5096, et seq.)

In short, the fact that the Kramers were erroneously billed for and paid taxes, of whatever nature, on the disputed parcels, did not provide them with an opportunity to claim the status of record owners for purposes of receiving notice of and voting in the BID election.

The Kramers Fifth and Sixth Causes of Action Were Dependent on a Showing of Statutory Violations

The Kramers also sought, in their fifth cause of action, a writ of mandate to overturn or rescind the purportedly fraudulent BID election and, in their sixth cause of action, a judicial declaration that the BID election and ensuing tax assessments were illegal. In granting judgment on the pleadings, the trial court concluded that the Kramers were similarly unable to maintain these causes of action because they were dependent on the claim that respondents had violated article XIII D and the related statutes. The trial court was correct, and therefore properly granted respondents motion for judgment on the pleadings in its entirety.^[6]

III. The Demurrer

As previously noted, the Kramers attempted to allege causes of action for fraud and negligent misrepresentation. Specifically, the Kramers asserted that the Agency made the misrepresentation that it was the record owner of the disputed parcels, and that it fraudulently and illegally voted on behalf of those parcels. The Agency and City also misrepresented that the BID election was conducted in accordance with the requirements of the California Constitution and Government Code section 53753, that the BID passed, and that special assessments were due from the Kramers.

Respondents twice demurred to these causes of action on the basis that, as public entities, they were immune from liability for the common law torts of fraud and negligent misrepresentation, and no statutory basis for liability existed. The trial court initially sustained respondents first demurrer to these causes of action with leave to amend. The Kramers filed a first amended complaint, once more alleging causes of action for fraud and negligent misrepresentation, and additionally asserting that the misrepresentations constituted a breach of respondents mandatory duties pursuant to the California Constitution and the cited statutes. Respondents again demurred to the causes of action for fraud and negligent misrepresentation on the grounds of governmental immunity (Gov. Code,  815), arguing that the Constitutional provision and statutes on which the Kramers relied did not encompass fraud or negligent misrepresentation. The trial court sustained the demurrer without leave to amend, and the case proceeded on the remaining causes of action for statutory violations, mandamus, and declaratory relief, which were later the subject of the successful motion for judgment on the pleadings discussed above. The Kramers argue on appeal that the trial court erred in sustaining the demurrers. We disagree.

In determining whether the complaint alleges facts sufficient to state a cause of action, we treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also consider matters of which the court may or must take judicial notice (ibid.; Code Civ. Proc.,  430.30, subd. (a)). (Freis v. Soboroff (2000) 81 Cal.App.4th 1102, 1104.) Furthermore, we note that a reviewing court reviews the judgment rather than the reasons for the judgment and must affirm the judgment if any of the grounds stated in the demurrer is well taken. [Citations.] (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)

Here, the trial courts order sustaining the demurrer without leave to amend is not in the record, and the reporters transcript of the hearing on the demurrer does not clearly indicate the trial courts reasoning in sustaining the demurrer. We note, however, that in arguing the demurrer the parties and the trial court did not engage in a detailed discussion of whether the cited constitutional provision and related statutes had been violated; that analysis took place only later with regard to the motion for judgment on the pleadings. Generally, the trial court apparently concluded that the Kramers had not cited a statutory basis upon which respondents could be held liable for fraud and negligent misrepresentation, which are otherwise simply common law duties which are not imposed on public entities. We conclude that the constitutional provision and related statutes relied upon by the Kramers do not indicate that the voters or the Legislature intended to create statutory liability for public entities based on fraud or negligent misrepresentation. More importantly, we conclude that the trial court properly sustained respondents demurrer without leave to amend because there was no statutory basis for imposing liability upon the public entity respondents.

Governmental Liability Must Be Based on Statute

Under the California Tort Claims Act (Gov. Code,  810 et seq.), a public entity is not liable for injury arising from an act or omission except as provided by statute. (Gov. Code,  815, subd. (a); [citation].)^[[7]](Creason v. Department of Health Services (1998) 18 Cal.4th 623, 630-631.) Thus, in California, all government tort liability must be based on statute [citation]. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) In the absence of a constitutional requirement, public entities may be held liable only if a statute . . . is found declaring them to be liable. (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 481.) (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932, fn. omitted.)

The Kramers argue that respondents are subject to liability pursuant to Government Code section 815.6, which provides for direct liability of a government entity for failure to discharge a mandatory duty. Section 815.6 provides: Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. The Kramers contend that the enactments imposing a mandatory duty on respondents, upon which liability may be based, are Article XIII D, section 6, of the California Constitution, Government Code section 53753, and Streets and Highways Code section 36623.

However, as we concluded in the previous section of our discussion, based upon the undisputed factual circumstances, the Kramers cannot maintain an action for violation of these provisions. The same reasoning and statutory construction discussed above regarding the motion for judgment on the pleadings also support the trial courts sustaining of respondents demurrer without leave to amend. The public entity respondents were not under a mandatory duty imposed by an enactment. (Gov. Code,  815.6.)

Furthermore, Cases interpreting [Gov. Code,  815.6] have noted that it establishes a three-pronged test for determining whether liability may be imposed on a public entity: (1) the enactment in question must impose a mandatory, not discretionary, duty; (2) the enactment must be intended to protect against the kind of risk of injury suffered by the party asserting the statute as the basis of liability; and (3) the breach of duty must be a proximate cause of the plaintiffs injury. [Citation.] (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688-689.) The plaintiff must show the injury is one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 939, fn. omitted.) (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.)

The Kramers contend that the cited constitutional provision and related statutes were intended to protect property owners from imposition of special assessments or fees without notice or voting opportunity, and that by failing to comply with these statutes, respondents caused the Kramers to suffer the precise injury the statutes were intended to prevent. We conclude, however, that respondents were not under a mandatory duty to provide the Kramers with notice of the BID election and an opportunity to vote on behalf of the disputed parcels. In addition, the Kramers plainly were not among those intended to be protected by the cited statutes. The Kramers injurythe loss of their right to notice and an opportunity to vote to oppose the imposition of taxeswas not a consequence the California voters sought to prevent when they enacted article XIII D, (as implemented by Gov. Code,  53753), because the Kramers were not legally liable for any taxes or fees on the disputed parcels at the time the BID election took place. (See In re Groundwater Cases, supra, 154 Cal.App.4th at pp. 688-689; Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 499.) The Agency had acquired the right to take possession of the disputed parcels over two months earlier, and thus the Kramers had ceased to be subject to the imposition of taxes on the disputed parcels well before the BID election took place. The Kramers assertion, that respondents are subject to liability pursuant to Government Code section 815.6, must fail.

The parties discuss in their briefs on appeal whether the cited statutory enactments subject public entities to liability for fraud and negligent misrepresentation, and also whether respondents are immune from liability pursuant to Government Code section 818.8. Because we conclude that the Kramers cannot establish a basis for governmental liability pursuant to statute, it is unnecessary to discuss whether the governmental immunity pursuant to Government Code section 818.8 applies. Having found no statutory basis for imposing liability, it is not necessary to discuss whether statutory immunity applies. (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 723.)

We conclude that the Kramers failed to state causes of action for fraud and negligent misrepresentation, and therefore the demurrer to those causes of action was well taken. The ensuing judgment of dismissal, entered after the trial court had granted the motion for judgment on the pleadings as to the remaining causes of action, is affirmed.

disposition

The judgment is affirmed. Costs on appeal are awarded to respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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^[1] In December 2005, the Agency deposited an additional $1.7 million in just compensation.

^[2] The first amended complaint also alleged violation of Streets and Highways Code section 36623, but did not do so as a separate cause of action.

^[3] Both the Kramers and the Agency filed motions on appeal requesting that we take judicial notice of various documents. We grant the Kramers request that we judicially notice the following pleadings and orders filed in the eminent domain proceeding: the Agencys complaint initiating condemnation proceedings, the order for prejudgment possession, the judgment in condemnation, the final order of condemnation, and the amended stipulation between the Kramers and the Agency regarding the latters access to the disputed parcels. While the last two documents apparently were not before the trial court, in assessing the propriety of demurrer, an appellate court may take judicial notice of facts not subject to judicial notice by the trial court. (Taliaferro v. County of Contra Costa (1960) 182 Cal.App.2d 587, 592.) [I]n the interests of justice, on demurrer, a court will also consider judicially noticeable facts, even if such facts are not set forth in the complaint. [Citation.] (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.) In addition to the facts pleaded in the complaint, trial and appellate courts ruling on a demurrer also may properly take judicial notice of a partys earlier pleadings and positions as well as established facts from both the same case and other cases. [Citations.] The complaint should be read as containing the judicially noticeable facts, even when the pleading contains an express allegation to the contrary. [Citation.] . . . [Citations.] (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)

The trial court judicially noticed the orders filed by the trial court in the eminent domain action. Appellate courts should judicially notice any fact of which the trial court took proper judicial notice. (Evid. Code  459, subd. (a).)

However, we deny the Kramers request that we take judicial notice of documents generated by the Los Angeles County Tax Collector and sent to the Kramers regarding payment of taxes on the disputed parcels, and of notices sent to the Kramers on or about October 2008 ordering the abatement of nuisances (such as rubbish and weeds) on the disputed parcels. We conclude these documents are not relevant to resolution of this appeal.

Similarly, we conclude that the documents of which the Agency requests we take judicial notice are not relevant to resolution of this appeal. The documents purport to be the bills for the BID assessments issued with regard to the disputed parcels, and the canceled checks by which the Agency paid those assessments. We conclude that the dispositive fact is whether the Kramers had the legal responsibility to pay taxes on the disputed parcels, not which entity actually paid them. For the same reason, we strike the declarations filed on behalf of respondents on October 16, 2009, stating that the City refunded to the Kramers the assessments mistakenly paid by them as to the disputed parcels. The contents of the declarations are not relevant for our purposes.

^[4] All article references are to articles of the California Constitution.

^[5] We note that section 53753 refers only to article XIII D, section 4; however, the Kramers allege that respondents violated section 6. The more stringent procedures, requirements, and voter approval mechanisms for local government assessmentsas opposed to property-related fees and charges addressed in article XIII D, section 6are set forth in section 4 of article XIII D. The two sections differ in that, for example, section 4 requires that a written ballot must be sent to the record owners of the affected parcels along with the initial notice regarding the amount and purpose of the assessment. In section 6, formal balloting is not required at the initial notice stage. The parties appear to agree that the present case involved the imposition of a property related fee pursuant to section 6 of article XIII D, rather than an assessment pursuant to section 4, although both parties sometimes refer to the charge at issue as an assessment. In any event, the respondents do not dispute, at least for purposes of this appeal, the applicability of Government Code section 53753. We therefore shall assume, as have the trial court and the parties, that Government Code section 53753 is applicable here, even though section 6 of article XIII D is cited as being the relevant section of the California Constitution, while section 53753 refers only to section 4 of article XIII D.

^[6] The Kramers argue on appeal, as they did in the trial court, that respondents were not permitted to bring a motion for judgment on the pleadings as to the fifth and sixth causes of action because their previous demurrer on the same grounds was overruled. Code of Civil Procedure section 438, subdivision (g)(1), provides that a motion for judgment on the pleadings may be made even though the moving party has already demurred to the complaint on the same grounds, and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer. The Kramers argue there was no change in case law or statute here.

In shor