Filed 6/25/14 William Jefferson v. Assessment Appeals Bd. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


WILLIAM JEFFERSON & CO., INC.,

     Plaintiff and Appellant,                                          G049344

         v.                                                            (Super. Ct. No. 30-2009-00320915)

ASSESSMENT APPEALS BOARD,                                              OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Jamoa A.
Moberly, Judge. Affirmed.
                   William A. Kent for Plaintiff and Appellant.
                   Koeller, Nebeker, Carlson & Haluck and Zachary M. Schwartz for
Defendant and Respondent.
                                          *                  *                  *
              Nearly 15 years after the Orange County Assessor (Assessor) established
the base year value used to assess real property taxes against plaintiff William Jefferson
& Co., Inc.’s (Jefferson) property, Jefferson appealed to defendant Assessment Appeals
Board (Appeals Board) claiming the Assessor made a clerical error in valuing the
property. The Appeals Board conducted an evidentiary hearing and denied the appeal on
the ground Jefferson had waited too long to challenge the Assessor’s base year value
determination. The Appeals Board found Jefferson based its appeal not on a clerical
error but on the Assessor’s error in judging the property’s value, and therefore Jefferson
failed to comply with Revenue and Taxation Code sections 51.5, subdivision (b), and 80,
subdivision (a)(3), which required Jefferson to appeal within four years of the Assessor’s
base year value determination.1
              Jefferson filed this action below seeking to compel the Appeals Board to
grant Jefferson’s appeal and direct the Assessor to change the property’s base year value
from $305,000 to $271,000. Jefferson, however, failed to address the Appeals Board’s
determination that it lacked jurisdiction to grant Jefferson’s appeal, instead relying on the
Assessor’s allegedly erroneous property valuation. The trial court granted the Appeals
Board summary judgment because Jefferson challenged the merits of the Assessor’s
valuation and therefore had to bring this action against the County of Orange (County),
not the Appeals Board.
              We affirm. As explained below, any lawsuit that seeks a property tax
reduction by challenging the base year value assigned to an owner’s property must be
brought as a tax refund action against the county or city that collected the tax, not the
local assessment appeals board. Accordingly, the trial court properly determined
Jefferson may not maintain this action against the Appeals Board. Jefferson’s failure to


       1      All statutory references are to the Revenue and Taxation Code unless
otherwise stated.


                                              2
name the proper defendant eliminates the need to address the numerous challenges he
asserts to the Appeals Board’s decision.

                                              I

                            FACTS AND PROCEDURAL HISTORY2

              The property at issue is a single-family home located in Irvine, California.
William A. Kent purchased the property for $305,000 in 1990. After several other
transfers for which there are no details in the record, Michael Kim sold the property to
Gopal Productions, Inc. (Gopal) for $271,000 in December 1992. Gopal recorded the
deed transferring the property, but failed to file a change of ownership statement, which
would have alerted the Assessor to determine whether the transfer constituted a change of
ownership requiring a new base year value for the property.
              Gopal filed the change of ownership statement in June 1993 after receiving
notice a penalty would be imposed if it did not promptly file the statement. That same
month Gopal also recorded a quitclaim deed transferring the property to Jefferson. All
parties agree the transfer to Jefferson was not a change of ownership affecting the
property’s base year value because Gopal and Jefferson were related corporations.
              In October 1993, the Assessor sent Gopal a supplemental assessment
notice, which acknowledged the December 1992 change of ownership from Kim to


       2       Jefferson’s opening brief is “seriously defective” because it fails to provide
either a statement of facts or a summary of the relevant procedural history. (Lafayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868-869;
Cal. Rules of Court, rule 8.204(a)(2)(A) & (C).) Jefferson sprinkles a few facts
throughout its brief but falls far short of providing the mandatory “summary of the
significant facts limited to matters in the record.” (Cal. Rules of Court,
rule 8.204(a)(2)(C).) We are left to determine the fundamental facts and procedural
history from our independent review of the record and the Appeal Board’s brief.
Consequently, Jefferson has waived any objection that we overlooked any disputed or
undisputed material facts. (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th
430, 435, fn. 2.)

                                              3
Gopal, but notified Gopal the Assessor valued the property at $305,000 at the time of the
transfer and therefore would use that figure as the base year value instead of the $271,000
Gopal paid.
              In July 2008, Jefferson filed with the Appeals Board an application to
change the base year value the Assessor assigned to the property 15 years earlier. At the
Appeals Board’s evidentiary hearing, Jefferson argued the Assessor made a clerical error
in assessing the property at $305,000 instead of the $271,000 purchase price. In
April 2009, the Appeals Board issued its decision and findings of fact denying Jefferson’s
application. Based on sections 51.5, subdivision (b), and 80, subdivision (a)(3), the
Appeals Board found it lacked jurisdiction to change the base year value because nearly
15 years had elapsed between the Assessor’s base year value determination and
Jefferson’s application challenging that determination. The Appeals Board denied
Jefferson’s application without deciding whether the Assessor properly valued the
property at $305,000 when Gopal purchased it in December 1992.
              In November 2009, Jefferson filed its “Complaint for Damages; Petition for
a Writ of Administrative Mandate; Petition for Writ of Mandate” alleging a single cause
of action against the Appeals Board. The complaint asked the trial court to direct the
Appeals Board to vacate its decision denying Jefferson’s application for changed
assessment and enter a new decision compelling the Assessor to change the property’s
base year value to $271,000. The trial court sustained the Appeals Board’s demurrer to
the Complaint with leave to amend on the ground of uncertainty because the court could
not determine the precise nature and basis for Jefferson’s claim.
              Jefferson then filed the “First Amended Complaint for a Refund of Taxes
Improperly Paid,” asserting two causes of action against the Appeals Board. The first
cause of action alleged the Appeals Board erred in failing to correct a clerical error the
Assessor made in setting the property’s base year value at $305,000 instead of $271,000.
Jefferson therefore sought a refund of taxes improperly paid based on the erroneous base

                                              4
year value and an order requiring the Appeals Board to vacate its decision and enter a
new decision setting the property’s base year value at $271,000. The second cause of
action alleged a class action seeking a refund for all property owners who were required
to pay a fee for the Appeals Board to issue written findings on their appeals.
              The Appeals Board sought summary judgment, or alternatively, summary
adjudication on several grounds, including that Jefferson sued the wrong party because
tax refund actions must be brought against the county that collected the tax, not the local
assessment appeals board. Jefferson opposed the Appeals Board’s motion and filed its
own motion seeking summary judgment, or alternatively, summary adjudication on each
of its claims. While those motions were pending, Jefferson and the Appeals Board filed a
stipulation and order dismissing Jefferson’s class action allegations.
              In September 2013, the trial court granted the Appeals Board’s motion on
the ground Jefferson may not maintain a tax refund action against the Appeals Board,
thereby rendering Jefferson’s summary judgment motion moot. The court also noted it
found each of Jefferson’s claims lacked merit. The court entered judgment in the
Appeals Board’s favor in October 2013 and Jefferson timely appealed.

                                             II

                                        DISCUSSION

A.     Summary Judgment Standards
              “‘“The purpose of a summary judgment proceeding is to permit a party to
show that material factual claims arising from the pleadings need not be tried because
they are not in dispute.” [Citations.]’ [Citations.]” (Ahn v. Kumho Tire U.S.A., Inc.
(2014) 223 Cal.App.4th 133, 136, original italics.) A defendant moving for summary
judgment bears the initial burden to show the plaintiff’s action has no merit. (Ibid.) The
defendant can meet that burden by either showing the plaintiff cannot establish one or
more elements of his or her cause of action or there is a complete defense to the claim.


                                             5
(Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) To meet this burden, the defendant must
present evidence sufficient to show he or she is entitled to judgment as a matter of law.
(Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847-848.) Once the defendant meets
that burden, the burden shifts to the plaintiff to present evidence establishing a triable
issue exists on one or more material facts. (Ahn, at p. 136; Code Civ. Proc., § 437c,
subd. (p)(2).) We review a trial court’s ruling on a summary judgment motion de novo.
(Ahn, at p. 136.)

B.     Principles Governing Owner Challenges to Property Tax Assessments
              In 1978, Proposition 13 amended the California Constitution to limit real
property taxes to one percent of a property’s base year value adjusted annually by an
inflation factor not to exceed two percent of the prior year’s value. (Cal. Const.,
art. XIII A, §§ 1, subd. (a), 2, subd. (b); Sunrise Retirement Villa v. Dear (1997)
58 Cal.App.4th 948, 956 (Sunrise); Sea World, Inc. v. County of San Diego (1994)
27 Cal.App.4th 1390, 1398 (Sea World).) Proposition 13 set the base year value used to
determine each year’s taxes at the value the local assessor set on the 1975-1976 tax bill.
(Sea World, at p. 1398.) A property’s base year value may be reestablished only if the
property is purchased, is newly constructed, or there is a change in ownership. (Sunrise,
at p. 956.)
              The California Constitution establishes local boards of equalization (either
a county assessment appeals board or the board of supervisors) to hear appeals from
decisions of the local tax assessor. (Cal. Const., art. XIII, § 16; Sunrise, supra,
58 Cal.App.4th at p. 958.) The local board may hear appeals concerning not only the
assessed value, but also the assessor’s determination on whether a change of ownership
has occurred. (Sunrise, at p. 958; § 1605.5.) A property owner initiates the appeals
process by filing a written application to change the assessment with the local assessment
appeals board. (Sunrise, at p. 958; § 1603.) The local board then must conduct a public



                                              6
hearing to receive evidence and decide the appeal. (Sunrise, at p. 958; §§ 1604, 1605.4,
1609.) Section 80, subdivision (a)(3) (Section 80(a)(3)), requires a property owner to
challenge the local assessor’s base year value determination within four years of the
assessor’s determination. (Sunrise, at p. 956.)
              Section 51.5, however, “provides an independent mechanism for correcting
base year values apart from the normal appeals procedure.” (Sunrise, supra,
58 Cal.App.4th at p. 960; Sea World, supra, 27 Cal.App.4th at p. 1403.) The statute
imposes a ministerial duty on an assessor to correct an error in the determination of a
base year value during the assessment year in which the error is discovered. (Sunrise, at
p. 960.) That duty arises whether the assessor independently discovers the error or the
taxpayer brings it to the assessor’s attention through an application for changed
assessment or other means. (Id. at p. 960, fn. 5.)
              Depending on the nature of the error, section 51.5 establishes time limits on
an assessor’s authority to correct a base year value. If the error “‘involves the exercise of
an assessor’s judgment as to value,’” section 51.5, subdivision (b) (Section 51.5(b)),
authorizes the assessor to correct the error up to four years after the base year value was
first established. (Kuperman v. San Diego County Assessment Appeals Bd. No. 1 (2006)
137 Cal.App.4th 918, 924, 929 (Kuperman).) If the error “‘does not involve the exercise
of an assessor’s judgment as to value,’” section 51.5, subdivision (a) (Section 51.5(a)),
requires the assessor to correct the error during the year in which it is discovered
regardless of how much time has elapsed since the base year value was first established.
(Kuperman, at pp. 924, 929; Sunrise, supra, 58 Cal.App.4th at pp. 959-960.)
              Judgmental errors subject to the four-year time limit typically involve a
claim the assessor’s determination of the base year value failed to reflect the property’s
fair market value. (Kuperman, supra, 137 Cal.App.4th at pp. 926-927.) Nonjudgmental
errors subject to correction at any time include (1) “an assessor’s erroneous determination
that a change of ownership occurred” (id. at p. 926; Sunrise, supra, 58 Cal.App.4th at

                                              7
p. 957); (2) “the assessor’s failure to set a new base year value upon a change of
ownership” (Kuperman, at p. 926); (3) “defects of a mechanical, mathematical, or clerical
nature, not involving judgment as to value, where it can be shown from papers in the
assessor’s office or other evidence that the defect resulted in a base year value that was
not intended by the assessor at the time it was determined” (§ 51.5, subds. (c) & (f)(2);
Kuperman, at p. 926); and (4) “errors or omissions that result from the taxpayer’s fraud,
concealment, misrepresentation, or failure to comply with legal requirements for
furnishing information” (Kuperman, at p. 926; see § 51.5, subd. (c)).
              A property owner must be aware of the distinction between a successful
application that reduces a base year value and the property owner’s right to a refund of
any excess taxes paid based on the erroneous base year value: “The base-year value is a
control figure from which an assessment is determined. The correction of the base-year
value allows the assessor to determine whether there has been an overassessment or an
underassessment. Thereafter, an application must be made for a refund.’ [Citation.]”
(Sunrise, supra, 58 Cal.App.4th at p. 956.)
              A property owner must exhaust this administrative appeals process before
seeking judicial relief, and the failure to do so will result in dismissal of the property
owner’s lawsuit. (Sunrise, supra, 58 Cal.App.4th at p. 958.) Although a local
assessment appeals board decision arises from an administrative hearing process, the
mechanism for seeking judicial review of the decision “‘is significantly different from
that of other administrative agency decisions. Ordinarily the aggrieved taxpayer’s
remedy is not to seek administrative mandate pursuant to Code of Civil Procedure
section 1094.5, but to pay the tax and file suit in superior court for a refund. [Citations.]’
[Citation.]” (Little v. Los Angeles County Assessment Appeals Bd. (2007)
155 Cal.App.4th 915, 923 (Little).) Indeed, “[t]he exclusive means of review of tax
proceedings in California has been the remedy of suit to recover alleged overpayments,
and the power of the state to provide such suit as the exclusive remedy is unquestioned.”

                                               8
(County of Sacramento v. Assessment Appeals Bd. No. 2 (1973) 32 Cal.App.3d 654, 671
(County of Sacramento).)
              Because a tax refund action provides property owners with an adequate
remedy at law, equitable actions for mandamus, injunctive, and declaratory relief
generally are unavailable to obtain judicial review of a local assessment appeals board
decision. (Schoenberg v. County of Los Angeles Assessment Appeals Bd. (2009)
179 Cal.App.4th 1347, 1355 (Schoenberg); Merced County Taxpayers’ Assn. v. Cardella
(1990) 218 Cal.App.3d 396, 400-401 (Merced); County of Sacramento, supra,
32 Cal.App.3d at pp. 672-673.)
              This limitation on taxpayer actions challenging local assessment appeals
board decisions derives from the California Constitution and the Revenue and Taxation
Code. The California Constitution states, “No legal or equitable process shall issue in
any proceeding in any court against this State or any officer thereof to prevent or enjoin
the collection of any tax. After payment of a tax claimed to be illegal, an action may be
maintained to recover the tax paid, with interest, in such manner as may be provided by
the Legislature.” (Cal. Const., art. XIII, § 32.) Similarly, the Revenue and Taxation
Code provides, “No injunction or writ of mandate or other legal or equitable process shall
issue in any suit, action, or proceeding in any court against any county, municipality, or
district, or any officer thereof, to prevent or enjoin the collection of property taxes sought
to be collected.” (§ 4807.) The policy behind these provisions is “to allow revenue
collection to continue during litigation so that essential public services dependent on the
funds are not unnecessarily interrupted.” (Merced, supra, 218 Cal.App.3d at p. 400.)
              A tax refund action must be brought against the county or city that
collected the tax. (§ 5140 [“The person who paid the tax . . . may bring an action only in
the superior court . . . against a county or a city to recover a tax which the board of
supervisors of the county or the city council of the city has refused to refund on a claim
. . .”].) A tax refund action may not be maintained against the local assessment appeals

                                              9
board because it “is a separate and distinct constitutional entity from the [c]ounty [or city
that collected the tax].” (Schoenberg, supra, 179 Cal.App.4th at p. 1355.)

C.     The Trial Court Correctly Determined Jefferson Brought Suit Against the Wrong
       Party
              The trial court granted the Appeals Board summary judgment on the
ground a tax refund action may not be maintained against a local assessment appeals
board. (See § 5140; Schoenberg, supra, 179 Cal.App.4th at p. 1355.) Jefferson accepts
the rule but disagrees with the trial court’s conclusion it applied here because Jefferson
claims its action is not a lawsuit for a tax refund. According to Jefferson, it only sought
to correct an erroneous base year value determination and no refunds were involved in
the proceedings. Jefferson’s contention, however, misconstrues the scope of the rule
making a refund action the exclusive means for challenging an assessment appeals board
decision and also mischaracterizes Jefferson’s claims.
              Any action challenging the merits of an assessor’s base year value
determination is a refund action that must be brought against the county or city that
collected the tax even if the action does not expressly seek a refund or disclaims the right
to a refund. (See Schoenberg, supra, 179 Cal.App.4th at p. 1355 [tax refund action is
exclusive means to challenge merits of local assessment board decision “even if the effect
of a proposed mandate order would not be an immediate refund, but only the potential for
a future refund”]; Little, supra, 155 Cal.App.4th at pp. 922-925; Merced, supra,
218 Cal.App.3d at pp. 400-401.)
              In Little, a property owner reapplied to the local assessment appeals board
to reduce his property’s base year value on the ground the assessor overvalued the
property. The appeals board determined the base year value was proper when it denied
the owner’s application for changed assessment several years earlier and the owner could
not seek reconsideration through a second application. The property owner sought a writ
of mandate compelling the assessor to correct the base year value and to use the corrected

                                             10
value in making future assessments. The assessor demurred to the petition, arguing
mandamus did not lie to review the merits of its base year value determination because a
tax refund action was an adequate remedy at law. The trial court overruled the demurrer,
but later denied the petition on the merits following a court trial. (Little, supra,
155 Cal.App.4th at pp. 919-922.)
                The Court of Appeal affirmed, but concluded the trial court should have
sustained the assessor’s demurrer without leave to amend. Even though the property
owner did not expressly seek a refund, the Little court explained the owner’s action
constituted a refund action because it sought to reduce the owner’s taxes by challenging
the assessor’s base year value determination. Mandamus therefore did not lie to compel
the assessor to change the property’s base year value. (Little, supra, 155 Cal.App.4th at
pp. 922-925.)
                In Merced, a group of taxpayers brought a petition for writ of mandate to
compel the local assessor to correct their base year values because the assessor had used
an improper method to retroactively set those values. In their petition, the taxpayers
expressly disclaimed any right to tax refunds and explained they sought to “‘correct[] . . .
wholesale assessment irregularities for application in the future only.’” (Merced, supra,
218 Cal.App.3d at p. 398.) The trial court granted the taxpayers’ petition. (Ibid.)
                The Court of Appeal reversed, explaining mandamus did not lie to correct
an erroneous base year value or assessment. (Merced, supra, 218 Cal.App.3d at p. 400.)
Despite the taxpayers’ express disclaimer of any right to tax refunds, the Merced court
concluded the action must be brought as a tax refund action because it sought to lower the
taxpayers’ taxes by challenging the assessor’s base year value determination. (Id. at
p. 401.)
                Here, Jefferson’s action is a tax refund action not only because it expressly
seeks a tax refund, but also because it seeks to reduce Jefferson’s taxes by challenging the
merits of the Assessor’s decision setting the property’s base year value at $305,000.

                                              11
Jefferson’s operative pleading is entitled “First Amended Complaint for a Refund of
Taxes Improperly Paid” and it prays for a “refund of taxes improperly paid.”
(Capitalization omitted.) Jefferson also seeks to compel the Appeals Board to vacate its
decision denying Jefferson’s application for changed assessment and to issue a new
decision granting the application and directing the Assessor to set the property’s base
year value at $271,000. Jefferson seeks this relief on the ground the Assessor failed to
accept the $271,000 purchase price as the property’s presumptive fair market value when
Gopal purchased it in 1992, and the Assessor failed to present any evidence overcoming
that presumption and establishing $305,000 as the fair market value to be used as the base
year value. Jefferson does not dispute its action challenges the merits of the Assessor’s
base year value determination. Accordingly, Schoenberg, Little, and Merced compel us
to conclude this action must be treated as a tax refund action that Jefferson may not
maintain against the Appeals Board.
              Jefferson argues the Sunrise opinion allows him to pursue a mandamus
action compelling the Appeals Board to vacate its decision denying Jefferson’s
application for changed assessment and issue a new decision directing the Assessor to
change the property’s base year value from $305,000 to $271,000. Sunrise does not
apply because Jefferson expressly requested a refund and Sunrise did not involve a
challenge to the merits of the assessor’s base year value determination.
              In Sunrise, a property owner applied to the local assessment appeals board
to reduce his property’s base year value several years after the assessor established a new
base year value for the property based on a change of ownership. Without taking any
evidence, the appeals board refused to hear the owner’s challenge to the assessor’s
change of ownership determination because the board found the four-year time limit in
Section 80(a)(3) deprived the board of jurisdiction to grant the application. The property
owner filed a petition for writ of mandate to compel the assessor to restore the property’s
original base year value, or alternatively to compel the appeals board to hear the

                                            12
application on its merits. The property owner argued the assessor’s change of ownership
determination did not involve the assessor’s exercise of judgment as to the property’s
value, and therefore Section 51.5(a) required the assessor to correct the error during the
assessment year in which it was discovered regardless of how much time had elapsed.
The trial court granted the petition and ordered the assessor to restore the original base
year value. (Sunrise, supra, 58 Cal.App.4th at pp. 952-954.)
              The Sunrise court reversed and remanded for the trial court to enter a new
judgment issuing a writ of mandate compelling the appeals board to vacate its original
decision and conduct a new hearing to decide whether a change of ownership had
occurred that required the assessor to establish a new base year value. (Sunrise, supra,
58 Cal.App.4th at pp. 961-962.) Although a tax refund action is generally the exclusive
means for challenging an appeals board’s decision, the Sunrise court explained either
traditional or administrative mandamus lies to compel the board to hold a hearing when
the board is empowered to decide an issue in the first instance but erroneously fails or
refuses to do so. The Sunrise court concluded the assessor’s change of ownership
determination could be corrected at any time under section 51.5(a) because it did not
involve the assessor’s exercise of judgment as to the property’s value. The appeal board
therefore erred in concluding it lacked jurisdiction to decide the change of ownership
dispute. (Sunrise, at p. 957.)
              The Court of Appeal, however, emphasized that neither it nor the trial court
could decide whether the assessor erred in determining a change of ownership had
occurred because the governing statutes required the appeals board to decide the issue.
The Sunrise court explained the proper remedy was to order the appeals board to perform
its statutorily-mandated duty and decide the change of ownership dispute because
mandamus lies to compel an agency to perform its duties, but not to control the agency’s
discretion in performing those duties. The trial court therefore erred in deciding the
application on its merits and ordering the assessor to change the base year value because

                                             13
a court may not step into an agency’s shoes and perform its duties. Instead, the trial court
should have ordered the agency to conduct a hearing, and if a lawsuit followed, then
review the agency’s decision under the established standard of review once the
administrative process had fully run its course. (Sunrise, supra, 58 Cal.App.4th at
pp. 955, 960-961.)
              Here, the Appeals Board conducted a hearing on Jefferson’s application
challenging the base year value the Assessor established after Kim sold the property to
Gopal in 1992. Based on the evidence it received from both parties, the Appeals Board
determined it lacked jurisdiction to reach the application’s merits because Jefferson filed
the application nearly 15 years after the Assessor made its base year value determination.
The Appeals Board explained the four-year time limit in Sections 80(a)(3) and 51.5(b)
applied to Jefferson’s application because the Assessor acknowledged a change of
ownership occurred when Kim transferred the property to Gopal, and therefore the only
dispute involved the Assessor’s exercise of judgment as to the property’s value when that
transfer occurred. Because the dispute involved the Assessor’s exercise of judgment as to
value, the Appeals Board concluded Section 51.5(a) did not apply to correct certain
nonjudgmental errors at any time.
              Jefferson never has challenged the Appeals Board’s determination it lacked
jurisdiction to hear its application. Indeed, Jefferson’s pleadings and briefs never
acknowledged the Appeals Board denied its application based on a lack of jurisdiction
rather than on the merits. Jefferson consistently has challenged the Assessor’s
determination the property’s value when Kim transferred it to Gopal was $305,000
instead of $271,000, and it consistently has asked for an order compelling the Appeals
Board to direct the Assessor to change the base year value from $305,000 to $271,000.
That is a challenge to the merits of the Assessor’s base year value determination that
must have been brought as a tax refund action against the County, not the Appeals Board.
Jefferson’s petition for writ of mandate did not seek to direct the Appeals Board to

                                             14
conduct a new hearing to decide the application on its merits, and therefore Sunrise does
not apply.
              Jefferson contends he originally sought a writ of mandate against the
Appeals Board, but the trial court’s erroneous decision sustaining the Appeals Board’s
demurrer to the original pleading forced Jefferson to bring this action as a tax refund
action. We reject this argument for two reasons. First, Jefferson forfeited this argument
because its opening brief does not challenge the trial court’s demurrer ruling or otherwise
argue the trial court forced it to bring this action as a tax refund action. (See, e.g.,
Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277,
1292, fn. 6 [“[a]rguments presented for the first time in an appellant’s reply brief are
considered waived”]; Holmes v. Petrovich Development Co., LLC (2011)
191 Cal.App.4th 1047, 1064, fn. 2 [“argument is forfeited” where “it is raised for the first
time in [appellant’s] reply brief without a showing of good cause”].) Jefferson did not
even include the trial court’s ruling on the demurrer in the appellant’s appendix it filed.
              We also reject this argument because it misconstrues the trial court’s ruling.
Jefferson’s original pleading sought a writ of mandate and damages based on the Appeals
Board’s erroneous denial of the application for changed assessment. The Appeals Board
demurred on a wide variety of grounds, but the trial court sustained the demurrer solely
on the ground of uncertainty. The court explained it appeared Jefferson sought a tax
refund, but the court could not determine the precise nature of Jefferson’s claim and
therefore could not determine whether it adequately alleged facts to state any particular
claim. The court ordered Jefferson to amend its pleading to clearly state the nature and
basis for its claim and the relief it was seeking. But the court neither ordered Jefferson to
allege any particular claim nor prohibited Jefferson from alleging any particular claim.
Moreover, we note the prayer in Jefferson’s original pleading sought a writ of mandate
compelling the Appeals Board to direct the Assessor to change the property’s base year
value from $305,000 to $271,000. As explained above, the original pleading did not

                                              15
challenge the Appeals Board’s decision it lacked jurisdiction and did not seek a writ of
mandate ordering the Appeals Board to conduct a new hearing to decide the application
on its merits.
                 In bringing its summary judgment motion, the Appeals Board could
challenge only the specific claims Jefferson alleged in its operative pleading and certainly
Jefferson could not oppose the motion based on a claim it failed to allege. (Laabs v. City
of Victorville (2008) 163 Cal.App.4th 1242, 1253 [“‘defendant moving for summary
judgment need address only the issues raised by the complaint; the plaintiff cannot bring
up new, unpleaded issues in his or her opposing papers’”]; Conroy v. Regents of
University of California (2009) 45 Cal.4th 1244, 1254 [“‘“If the motion for summary
judgment presents evidence sufficient to disprove the plaintiff’s claims, as opposed to
merely attacking the sufficiency of the complaint, the plaintiff forfeits an opportunity to
amend to state new claims by failing to request it”’”].) Jefferson never sought leave to
allege a claim challenging the Appeals Board’s decision that it lacked jurisdiction and
therefore neither the Appeals Board nor the trial court was required to address that issue.3
                 Jefferson spent the majority of its briefs arguing the merits of the
Assessor’s base year value determination and various other challenges to the Appeals
Board’s decision. We do not reach any of those challenges because we affirm the trial
court’s decision granting the Appeals Board summary judgment on the ground Jefferson

       3        Jefferson argues summary judgment is not an available procedure in actions
to review determinations by an assessment appeals board. According to Jefferson, the
entire Code of Civil Procedure does not apply to actions involving assessment appeals
boards because Code of Civil Procedure section 30 purportedly limits that code’s
application to “civil actions for the enforcement or protection of private rights and the
redress or prevention of private wrongs.” (Capitalization omitted.) Code of Civil
Procedure section 30, however, states no such thing and Jefferson fails to cite any
authority that supports this contention. Code of Civil Procedure section 30 states, “A
civil action is prosecuted by one party against another for the declaration, enforcement or
protection of a right, or the redress or prevention of a wrong.” Moreover, Jefferson
forfeited this argument and is estopped from asserting it because Jefferson did not raise it.


                                                16
brought this action against the wrong party. We also do not address the viability of
Jefferson’s claims against the County because he never sought leave to add the County as
a defendant.4

                                             III
                                        DISPOSITION

                The judgment is affirmed. The Appeals Board shall recover its costs on
appeal.



                                                   ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




      4       The Appeals Board argues all claims against either it or the County are
barred by the statute of limitations, but the Appeals Board did not move for summary
judgment based on the statute of limitations. We therefore do not address whether any of
Jefferson’s claims are time barred.

                                             17
