Filed 11/1/18; pub. order 11/30/18 (see end of opn.)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION ONE


NEXT CENTURY                                           B284092
ASSOCIATES, LLC,
                                                       (Los Angeles
    Plaintiff and Appellant,                            Super. Ct. No. BC569076)

    v.

COUNTY OF LOS ANGELES,

    Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of Los
Angeles, Robert L. Hess, Judge. Reversed and remanded with
directions.
      Moore & Associates, Kevin J. Moore and Debby S. Doitch
for Plaintiff and Appellant.
      Lamb & Kawakami, Michael K. Slattery, Shane W. Tseng;
Mary C. Wickham, County Counsel and Richard Girgado, Senior
Deputy County Counsel for Defendant and Respondent.
                    _________________________
      Appellant Next Century Associates, LLC (Next Century)1
seeks a property tax refund for the 2009-2010 tax year. It
purchased the Century Plaza Hotel, and the real property on
which it is located, in mid-2008, for $366.5 million. As of January
1, 2009, the property’s corrected enrolled assessed value, which
we will refer to as the enrolled value, was $367,612,305. But,
Next Century contends it was entitled to a reduction in the
assessed value because the “global economic meltdown” of late
2008 caused the property’s market value to drop significantly
between the date of purchase and January 1, 2009.
      Next Century applied for a reduction in the property’s
assessed value. The County of Los Angeles Assessment Appeals
Board No. 4 (the Board) held a hearing on the application, at
which both Next Century and representatives of the Los Angeles
County Assessor presented evidence on the value of the property
using similar discounted cash flow (DCF) analyses.
       Both Next Century’s and the Assessor’s DCF analyses
reflected a decline in value below the enrolled value. The
Assessor did not attempt to defend the enrolled value of
$367,612,305, and neither party offered evidence supporting that
valuation.
      Instead, the Assessor’s DCF analysis produced a valuation
of $349,800,000, about $17.8 million below the enrolled value.
The Board rejected the Assessor’s DCF analysis, however,




1     For reasons unknown to us, Next Century was sometimes
referred to as New Century in the proceedings below.




                                2
because it contained an admitted error: it overstated the hotel’s
2006 NOI.2
      Next Century’s DCF analysis produced a valuation of
$277,800,000, almost $90 million below the enrolled value. Also,
Next Century asserts that if the Assessor’s analysis were
corrected for the admitted mistake, it would generally support
Next Century’s proposed value. While the Assessor does not
agree, he concedes that correcting the error would not increase
his valuation.
     In any event, the Board also rejected Next Century’s
proposed valuation, stating without further explanation that the
company’s “income growth rates do not justify a 22% decline in
value from the 2nd quarter of year 2008 to the lien date3 of
January 1, 2009, and do not justify a 29% decline in the subject
property’s NOI from year 2008 to 2013.”
       After concluding Next Century had not met its burden of
proof, the Board denied the application and left in place the
enrolled value, even though no party thought it correctly reflected
the property’s value as of the lien date.
      Next Century then brought suit for a property tax refund in
the Superior Court. After reviewing the administrative record,



2     Net operating income.

3     “ ‘Lien date’ is the time when taxes for any fiscal year
become a lien on property.” (Rev. & Tax. Code, § 117.) All
further statutory references are to the Revenue and Taxation
Code unless otherwise noted.




                                3
and remanding for clarification, the Superior Court entered
judgment in favor of Respondent County of Los Angeles.
      On appeal, Next Century contends the Board was required
either to accept Next Century’s proposed assessed value,
calculate its own assessed value, or direct the Assessor to
recalculate the assessed value.
      We conclude that the Board’s rejection of Next Century’s
valuation, without sufficient explanation, and with knowledge
that the Assessor’s valuation analysis—if corrected— would
result in a valuation significantly lower than the enrolled value,
was arbitrary, as was its decision to leave in place an enrolled
value that had been repudiated by the Assessor and was
unsupported by any evidence. We also conclude that the Board’s
cryptic findings are insufficient to bridge the analytic gap
between the evidence and the Board’s conclusions. (See Topanga
Assn. for a Scenic Community v. County of Los Angeles (1974) 11
Cal.3d 506, 515, 516 (Topanga).) And we conclude the record as a
whole does not include substantial evidence in support of the
Board’s order leaving the enrolled value in place.
      We therefore reverse with directions to remand the matter
to the Board for a new hearing and more detailed findings.




                                4
                          BACKGROUND
      The material facts are undisputed.
      A. Purchase and Initial Assessment
      Next Century purchased the hotel property for
$366,500,000.4 The transfer of ownership recorded on June 2,
2008. Article XIIIA of the California Constitution—adopted by
the voters as Proposition 13 in 1978—limits the ad valorem tax
on real property to one percent of the property’s “full cash value.”
(Cal. Const., art. XIIIA, § 1, subd. (a).) Thus, county assessors
must “assess all property subject to general property taxation at
its full value.” (Rev. & Tax Code § 401.) Generally, “full cash
value” is “the appraised value of real property when purchased,
newly constructed, or a change of ownership has occurred . . . .”
(Cal. Const. art. XIIIA, § 2, subd. (a).)
       The hotel purchase triggered a reassessment of the
property. A purchase price in a transaction between unrelated
parties generally is rebuttably presumed to be the full cash value,
at least to the extent it is allocated to land and improvements
subject to property taxation. (§ 110, subd. (b); Cal. Code Regs.,
tit. 18, § 2, subd. (b).) Here, the reassessment resulted in an
initial enrolled base year value, as later corrected in October
2010, of $350,000,000.5


4    The $366.5 million purchase price included the land,
improvements, fixtures, and personal property.

5     The Assessor originally determined that the base year
value was $331,500,000 for the land and $35,000,000 for
improvements. The original valuation did not include any
allocation for furniture, fixtures, and improvements because the




                                 5
       The issue in this case is the assessed value for the
2009−2010 tax year (July 1, 2009 to June 30, 2010), measured as
of the January 1, 2009 lien date. The initial enrolled value of the
property for 2009−2010 was $384,442,305. After amending the
enrolled base year valuation of the property in October 2010, the
Assessor revised the 2009−2010 assessed value to $367,612,305.6
This represented the maximum 2 percent annual increase in
assessed value for land and improvements permitted under
Proposition 13. (§51(a)(1)(D); see Cal. Const., art. XIIIA, §§ 1, 2.)
No one contends that the $367,612,305 enrolled value was
incorrectly computed. Rather, Next Century contends that the
property should be reassessed because it declined in value shortly
after the purchase.
      B. Initial Proceedings Before the Assessment Appeals
         Board
      Section 1603 permits a taxpayer to seek a reduction in
assessed value from the Board based on an asserted decline in
value. In its verified Application for Changed Assessment filed
December 1, 2009, Next Century did just that, contending that




Assessor was under the impression that New Century intended to
demolish the Hotel. The Assessor’s October 2010 revision
allocated $250,000,000 to land, and $100,000,000 to
improvements, for a total assessed value of $350,000,000. This
corrected initial valuation is not in dispute in this litigation.
6     The valuation components were $255,000,000 for land,
$102,000,000 for improvements, $2,501,540 for fixtures, and
$8,110,855 for personal property.




                                 6
the value as of January 1, 2009 was only $200,000,000.7 As the
Superior Court later pointed out, “[t]his represented a decline of
44% in the total value of the property, a decline of 33.3% in the
value of the land, and a decline in the value of the improvements
of 71.6%, from the purchase price in a period of less than seven
months.”
      By the time of the hearing before the Board on July 25,
2013, Next Century had abandoned its contention that the
property was worth only $200,000,000 on the lien date. Instead,
it sought to reduce the enrolled value of $367,612,305 to
$277,800,000 as of the January 1, 2009 lien date. The Assessor,
on the other hand, argued the property was worth $349,800,000
on the lien date.
      At such a hearing, “[a]n assessor is generally entitled to the
presumption affecting the burden of proof provided in Evidence
Code section 664 that he or she has properly performed his or her
duty to assess all properties fairly and on an equal basis.
[Citations.] ‘Thus, the taxpayer has the burden of proving the
property was improperly assessed. [Citations.]’” (Farr, supra,
187 Cal.App.4th at pp. 682−683.) This is reflected in California
Code of Regulations, title 18, section 321, subdivisions (a)–(b),
which provide:




7     The $200,000,000 proposed valuation was comprised of
$170,000,000 for land, $29,000,000 for improvements, and
$1,000,000 for furniture, fixtures, and equipment. Section
51(a)(2), which codifies Proposition 8, passed by the voters in
1978, allows for reductions of assessed value due to “factors
causing a decline in value.”




                                 7
      “(a) Subject to exceptions set by state law, it is presumed
that the assessor has properly performed his or her duties. The
effect of this presumption is to impose on the applicant the
burden of proving that the value on the assessment roll is not
correct or, where applicable, the property in question has not
been otherwise correctly assessed. The law requires that the
applicant present independent evidence relevant to the full value
of the property or other issue presented by the application.
     “(b) If the applicant has presented evidence, and the
assessor has also presented evidence, then the Board must
weigh all the evidence to determine whether it has been
established by a preponderance of the evidence that the
assessor’s determination is incorrect. The presumption that the
assessor has properly performed his or her duties is not evidence
and shall not be considered by the Board in its deliberation.”
      After the hearing, the Board issued written findings of fact.
These findings reflect (and the parties do not dispute) that Next
Century and the Assessor agreed on the physical description of
the property to be assessed, the financial statements for the years
1999−2011, that the property should be valued using the DCF
approach, and agreed on certain valuation factors, such as the
appropriate capitalization rate, for use in their respective DCF
analyses.
       The Board characterized the central dispute as the
predicted net operating income for the hotel for the five-year
period following January 1, 2009. Next Century assumed “a no-
growth rate for the subject property’s first two years and an
inflationary rate for the following years,” while “[t]he Assessor




                                8
utilized reasonable RevPAR8 growth estimates” with most years
not being much higher than the inflationary rate. The Board’s
findings described various similarities and differences with
respect to the parties’ DCF analyses.
      Next Century noted, and the Assessor conceded, that the
Assessor made an error in the assumed 2006 NOI (expressed as a
percentage of gross revenue) used in the Assessor’s DCF analysis.
As noted above, Next Century contended that if that error were
corrected, the Assessor’s DCF analysis would support Next
Century’s proposed value. The Assessor conceded that correcting
the error would not increase his valuation. The Board, however,
rejected the Assessor’s proposed valuation because of the
admitted error.
     Ultimately, the Board concluded Next Century’s projected
income figures did not justify the reassessment value it sought.
The Board’s key finding appears on the last page of its decision:
      “E. The Applicant has the burden of proof pursuant to State
Board of Equalization Rule 321 [Cal. Code Regs., title 18, § 321],
and all of [its] evidence and contentions were considered by the
Board. The Applicant’s income growth rates do not justify a 22%
decline in value from the 2nd quarter of year 2008 to the lien
date of January 1, 2009, and do not justify a 29% decline in the
subject property’s NOI from year 2008 to year 2013.”
      For its “Value Conclusion,” the Board stated:
      “The Board finds the Applicant did not meet [its] burden of
proof in refuting the legally presumed correctness of the


8     Revenue per available room, or RevPAR, requires a
prediction of occupancy and room rates.




                                9
Assessor’s enrolled value. Therefore, the Board finds that the
Application is denied and directs that the $367,612,305 enrolled
assessment value of the Assessor be sustained.”
      C. Initial Proceedings at the Superior Court
      As noted above, Next Century then brought suit in the
Superior Court to obtain a refund of the property taxes it paid.9
After considering the evidence submitted by the parties and
hearing argument, the trial judge issued his “Order Regarding
Appeal of Property Tax Valuation.”
       In that order, the trial court observed that it “had two
significant problems in connection with analyzing the issues
before it. The first is that in their briefs the parties have given
the court very little in terms of explanation of the supposed
significance of the numbers they presented to the [Board] or how
precisely those numbers lead to their respective conclusion. . . .
The second problem is that [Next Century] focuses almost
entirely on the evidence it contends supports its position. This
does not comply with the requirement that when asserting there
is a lack of substantial evidence on a point, all the material
evidence must be set forth.”
       More significantly, the trial court concluded that the
Board’s key finding, quoted above, communicates three things:
“First, it constitutes an adverse credibility finding on the
evidence, particularly the analysis, presented by [Next Century].
Second, it expressly rejects [Next Century’s] analysis that the


9      A refund suit generally may be brought only after first
seeking relief from the Board. (Sunrise Retirement Villa v. Dear
(1997) 58 Cal.App.4th 948, 958.)




                                10
pertinent income history of the Hotel substantiates a 22% decline
in value from June 2008 to the January 1, 2009 lien date. Third,
it also expressly rejects the five-year projection of NOI
(2009−2013) which underlay [Next Century’s] DCF analysis.”
       Next Century had complained about the adequacy of the
Board’s findings, but the Court concluded that the key finding:
“sufficiently sets forth the basis for the rejection of [Next]
Century’s analysis; it does not need to be a specific exposition of
all the evidence and analysis.” Moreover, the trial court ruled
that the Board “was permitted to reject as not credible the claim
that the value of the Hotel’s land and improvements had
decreased over 20% in seven months. [Next Century’s] analysis
and projections were analogous to an expert’s opinion in a trial
court, which the trier of fact was free to accept or to reject. See
CACI 219.”
       The trial court remanded the matter to the Board for
clarification of one issue, however. As noted above, California
Code of Regulations, title 18, section 321, subdivision (b) provides
in part: “The presumption that the [A]ssessor has properly
performed his or her duties is not evidence and shall not be
considered by the Board in its deliberations.” The court was
concerned that the Board may have run afoul of this provision by
relying on the presumption as a basis for upholding the enrolled
value. It therefore remanded the matter to the Board “to
reconsider that portion of its decision establishing the enrolled
assessment value as of January 1, 2009, of $367,612,305. To the
extent the [Board] rejects the assessor’s value articulated at the
hearing (as well as [Next Century’s]), it should state why it has
done so. If the [Board] determines that its prior analysis and
conclusion were correct, it is requested to amplify on the legal




                                 11
basis for that determination. If the [Board] determines that some
different enrolled assessment value should apply, it should
articulate the reasons supporting the figure it chooses.”
      D. Proceedings on Remand Before the Board
       On remand, after a hearing, the Board issued its
Addendum to Findings of Fact. In the Addendum, the Board
reiterated its conclusions that Next Century had not met its
burden of proof, and that the Assessor had not presented a
reliable valuation because of the admitted error. The Board
stated it therefore left the existing enrolled value in place. The
Board also stated it did not rely on the presumption that the
Assessor had properly performed his duties. Rather, it stated it
left the existing roll value in place because it believed Next
Century had failed to carry its burden of proof. Moreover, it
asserted it is not its responsibility to correct mistakes made by
either party or to develop conclusions that are not based upon
evidence or testimony presented during a hearing. It again
denied the Application. (The Board did not provide any further
explanation of why it rejected Next Century’s valuation analysis
or why it affirmed the enrolled value even though the Assessor
believed it was too high.)
      E. Proceedings at the Superior Court Postremand
      After the Superior Court received the Addendum to
Findings of Fact, it issued a written decision indicating it found
the addendum responsive to its remand order. The court’s order
states, “The Addendum to Findings of Fact reduces to this: the
Assessor’s enrolled value for 2009−2010 was not accepted by the
[Board] because of a presumption of correctness, but rather
because neither [Next Century] nor the Assessor proved by a




                                12
preponderance of the credible evidence that their alternative
calculation was correct. This is known in civil litigation is a
failure of proof by the party with the burden of proof. [¶] [T]he
court is persuaded that substantial evidence supports the
[Board’s] determination that the roll value for 2009−2010 should
be $367,612,305.”
                          DISCUSSION
   A. Standard of Review
    “ ‘ “ Where a taxpayer challenges the validity of the valuation
method used by an assessor, the trial court must determine as a
matter of law ‘whether the challenged method of valuation is
arbitrary, in excess of discretion, or in violation of the standards
prescribed by law.’ [Citation.] Our review of such a question is
de novo. [Citation.]” ’ ” (Time Warner Cable Inc. v. County of Los
Angeles (2018) 25 Cal.App.5th 457, 463 (Time Warner).) Here, as
noted above, both Next Century and the Assessor used similar
DCF analyses, and no one challenges that method of valuation.
It is expressly permitted by regulation. (Cal. Code Regs., title 18,
§§ 2, subd. (b), 3, subd. (e), 8.)
      But where, as here, “ ‘ “ the taxpayer challenges the
application of a valid valuation method, the trial court must
review the record presented to the Board to determine whether
the Board’s findings are supported by substantial evidence but
may not independently weigh the evidence. [Citations.] This
court . . . reviews a challenge to application of a valuation method
under the substantial evidence rule. ” ’ ” (Time Warner, supra, 25
Cal.App.5th at p. 463.) Other factual determinations by the
Board also are reviewed under the substantial evidence standard.




                                13
(Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 679−680
(Farr).)
       Of course, to the extent our analysis involves interpretation
of statutes or administrative regulations, or other questions of
law, our review is de novo. (Robles v. Employment Development
Dept. (2015) 236 Cal.App.4th 530, 546; Farr, supra, 187
Cal.App.4th at pp. 679−680.) Finally, “[a] board’s ‘arbitrariness,
abuse of discretion, or failure to follow the standards prescribed
by the Legislature’ are legal matters subject to judicial correction.
[Citations].” (Farr, supra, 187 Cal.App.4th at p. 679.)
     B. The Board’s Decision to Maintain the Existing Roll Value
        Was Arbitrary and Unsupported by Substantial Evidence.
      Next Century purchased its hotel on the eve of an economic
meltdown the likes of which had not been seen in decades. By
January 1, 2009, the housing and stock markets had imploded
and the economy had entered a recession. Business activity,
including business travel had declined precipitously. When, and
in what fashion a recovery would come was anyone’s guess.
      Against that backdrop, Next Century had the burden of
proving the reduced value of its hotel as of the January 1, 2009
lien date.10 No party sought to support the existing enrolled
value. Next Century provided survey data indicating hotel
values across the country declined “at a dizzying pace” following
the dramatic stock market declines of September 2008. The
Assessor conceded the enrolled value was too high, and sought to

10    Section 1601.8 states, “[t]he applicant for a reduction in an
assessment on the local roll shall establish the full value of the
property by independent evidence.”




                                 14
prove a value between the roll value and the value asserted by
Next Century. The parties agreed the hotel’s value had declined,
but disagreed about by how much. The real question was how
long, and how severe, the recession would be.
      Although the Assessor’s analysis contained an error, if the
error were corrected, it would not increase the Assessor’s
valuation conclusion (per the Assessor) and might (per Next
Century) result in a value consistent with that advocated by Next
Century. In other words, if anything, the error made the
Assessor’s proposed valuation too high.
       Under these circumstances, it was incumbent on the Board
to explain in far more detail the deficiencies it perceived in Next
Century’s analysis so that the parties and the court could
understand why the Board rejected Next Century’s analysis, and
its rationale for affirming the discredited enrolled value. Clearly,
the Board has the power to disregard a valuation analysis it
determines for good reason is unpersuasive, and to reject expert
testimony that is speculative, unsupported, or otherwise
unpersuasive. But it must tell the parties, and reviewing courts,
why it rejects the evidence in other than conclusory terms. The
orderly process of judicial review requires that administrative
agencies must “set forth findings to bridge the analytic gap
between the raw evidence and ultimate decision or order.”
(Topanga, supra, 11 Cal.3d at pp. 515, 516; see also, Young v.
City of Coronado (2017) 10 Cal.App.5th 408, 420−422.) This
requirement applies with equal force to local Assessment Appeals
Boards. (Farr, supra, 187 Cal.App.4th at p. 686.)
      “Among other functions, [the] findings requirement serves
to conduce the administrative body to draw legally relevant
subconclusions supportive of its ultimate decision; the intended




                                15
effect is to facilitate orderly analysis and minimize the likelihood
that the agency will randomly leap from evidence to conclusions.
[Citations.] In addition, findings enable the reviewing court to
trace and examine the agency’s mode of analysis. [Citations.]
Absent such roadsigns, a reviewing court would be forced into
unguided and resource-consuming explorations; it would have to
grope through the record to determine whether some combination
of credible evidentiary items which supported some line of factual
and legal conclusions supported the ultimate order or decision of
the agency.” (Topanga, supra, 11 Cal.3d at p. 515.)
       Here, the Board stated that Next Century’s “income growth
rates” do not justify the decline in value it sought, nor do they
“justify a 29% decline in the subject property’s NOI from year
2008 to year 2013.” But the Board did not indicate (1) how it
reached these conclusions or (2) what value it believes the income
growth rates do support and why.
       In any event, no party put forth evidence that the existing
roll value remained valid. On the contrary, the parties agreed it
was too high. Thus, there was no substantial evidence
supporting the continued validity of that valuation and any
presumption in favor of the existing roll value was rebutted.
       The Board was not limited to choosing between the
valuation advocated by Next Century, the Assessor, and the
existing roll value. Instead, the Board “shall make its own
determination of value based upon the evidence properly
admitted at the hearing.” (Cal. Code Regs., tit. 18, §324, subd.
(b).) If desired, the Board could have continued the hearing to
allow the Assessor to correct the defect in his valuation analysis,
so the Board would have the benefit of the Assessor’s opinion.
(Cal. Code Regs., tit. 18, §323, subd. (c).) But it was not entitled




                                 16
to uphold an enrolled value that the Assessor agreed was too
high, and was unsupported by any evidence.
                           DISPOSITION
      The judgment of the trial court is reversed and the trial
court is directed to enter a new judgment vacating the findings of
fact and decisions of the Board and remanding the matter to the
Board for a new hearing. Next Century is awarded its costs on
appeal.




                                        CURREY, J.*

We concur:



      ROTHSCHILD, P. J.




      BENDIX, J.




*     Judge of the Los Angeles Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.




                                   17
Filed 11/30/18
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE


NEXT CENTURY ASSOCIATES, LLC,                  B284092

       Plaintiff and Appellant,                (Super. Ct. L.A. County
                                                Nos. BC569076, BC594802)
       v.

COUNTY OF LOS ANGELES,                         ORDER CERTIFYING
                                               OPINION FOR PUBLICATION
       Defendant and Respondent.




THE COURT*:

      Good cause appearing, it is ordered that the opinion in
the above entitled matter, filed November 1, 2018, be
published in the official reports.

____________________________________________________________

________________________ _____________________
_____________________
  *ROTHSCHILD, P. J.          BENDIX, J.
CURREY, J.**

** Judge of the Los Angeles Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.




                                   18
