Opinion
12-10-1954
SIGNAL OIL AND GAS COMPANY, a corporation, Plaintiff and Appellant, v. COUNTY OF ORANGE and City of Huntington Beach et al., Defendants and Respondents. * SOUTHWEST EXPLORATION COMPANY, a California corporation, Plaintiff and Appellant, v. COUNTY OF ORANGE and City of Huntington Beach et al., Defendants and Respondents. Civ. 5007, 5006.
C. LaV. Larzelere, H. F. Clary, Paul S. Ottoson, A. E. Stebbings, Sheppard, Mullin, Richter & Balthis, James C. Shepard, and Cameron W. Cecil, Los Angeles, for appellants. C. A. Bauer, City Attorney, Huntington Beach, Joel E. Ogle, County Counsel Orange County, and Stephen K. Tamura, Deputy County Counsel, Santa Ana, for respondents.
SIGNAL OIL AND GAS COMPANY, a corporation, Plaintiff and Appellant,
v.
COUNTY OF ORANGE and City of Huntington Beach et al., Defendants and Respondents. *
SOUTHWEST EXPLORATION COMPANY, a California corporation, Plaintiff and Appellant,
v.
COUNTY OF ORANGE and City of Huntington Beach et al., Defendants and Respondents.
Dec. 10, 1954.
Rehearing Denied Jan. 5, 1955.
Hearing Granted Feb. 2, 1955.
C. LaV. Larzelere, H. F. Clary, Paul S. Ottoson, A. E. Stebbings, Sheppard, Mullin, Richter & Balthis, James C. Shepard, and Cameron W. Cecil, Los Angeles, for appellants.
C. A. Bauer, City Attorney, Huntington Beach, Joel E. Ogle, County Counsel Orange County, and Stephen K. Tamura, Deputy County Counsel, Santa Ana, for respondents.
MUSSELL, Justice.
These actions were consolidated for trial and were brought by appellants against the county of Orange and the City of Huntington Beach to recover 1951-1952 city taxes levied on appellants' leasehold interests in state-owned tide and submerged lands purportedly annexed to the city of Huntington Beach in 1950. The complaint in each case contains two causes of action, one for refund of taxes paid after rejection of a claim for refund under section 5103 of the Revenue and Taxation Code and the other for recovery of taxes paid under protest under the provisions of section 5138 of the same code.
The controversy here revolves around annexation proceedings of the city of Huntington Beach whereby the city sought to annex approximately 9 square miles of ocean area lying northwest of the city's boundaries and the validity of its tax assessments on plaintiffs' leasehold interests. The annexation proceedings were conducted under the provisions of the Annexation of Uninhabited Territory Act of 1939 as amended, Government Code sections 35300-35325, and were purportedly completed on April 5, 1950. On July 3, 1950, an action in the nature of quo warranto was filed in the superior court of Orange county to test the validity of that annexation. The trial of that action was held in February, 1953, and the court rendered judgment for the defendant city and on the same day sustained the demurrer of the defendants city and county to the complaints herein without leave to amend. Judgments of dismissal were rendered, from which these appeals are taken. A new trial was granted in the quo warranto proceedings and the defendant city appealed from the order granting it. On appeal this court affirmed the order in an opinion filed October 28, 1954, in People ex rel. Southwest Exploration Company v. City of Huntington Beach, 128 Cal.App.2d 452, 275 P.2d 601.
The demurrers herein are both general and special, and unless it is clear that the complaints do not state a cause of action and cannot be so amended as to obviate the objections thereto, it is error to refuse permission to amend, Hillman v. Hillman Land Co., 81 Cal.App.2d 174, 181, 183 P.2d 730; Compas v. Escondido Mutual Water Co., 86 Cal.App.2d 407, 412, 194 P.2d 785, and if any count or cause of action is sufficiently pleaded, a judgment of dismissal cannot be sustained. Dalzell v. Kelly, 104 Cal.App.2d 66, 68, 230 P.2d 830; Shook v. Pearson, 99 Cal.App.2d 348, 351, 221 P.2d 757. It is also the rule that in considering the rulings on the demurrers, all the allegations of the complaints must be accepted as true, Carruth v. Fritch, 36 Cal.2d 426, 429, 224 P.2d 702, 24 A.L.R.2d 1403; Haggerty v. County of Kings, 117 Cal.App.2d 470, 478, 256 P.2d 393, and all that is necessary as against a general demurrer is to plead facts entitling plaintiff to some relief. Toney v. Security First Nat. Bank, 108 Cal.App.2d 161, 167, 238 P.2d 645. As was said in Matteson v. Wagoner, 147 Cal. 739, 742, 82 P. 436, 438: 'In determining whether or not the complaint is sufficient, as against the demurrer upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.'
Applying these rules to the complaints before us, we conclude that it was error to sustain the demurrers without leave to amend, particularly since the quo warranto proceedings testing the validity of annexation are pending. In this connection respondents argue that the validity of the annexation proceedings cannot be attacked by taxpayers in actions to recover taxes paid under protest on property in the annexed area, and that no remedy but quo warranto lies. Citing Coe v. City of Los Angeles, 42 Cal.App. 479, 183 P. 822, 823. This case cites with approval the following quotation from People ex rel. Warren v. York, 247 Ill. 591, 93 N.E. 400: "The legality of proceedings by which additional territory is added to a municipality cannot be inquired into, except upon a direct proceeding by quo warranto, and not upon a bill in equity or upon objections to a tax."
However, this court held in City of Anaheim v. City of Fullerton, 102 Cal.App.2d 395, 227 P.2d 494, that certiorari is a proper remedy by which to test the validity of annexation proceedings under the Annexation of Uninhabited Territory Act of 1939 at any time prior to completion of the proceedings. If the annexation proceedings herein are held to be defective and void in the quo warranto proceedings, which were instituted before the taxes involved were levied, and have been diligently prosecuted, plaintiffs' action to obtain a refund of such taxes paid under protest is proper and plaintiffs should be protected in their rights to the tax refunds until the quo warranto proceedings are concluded. As was said in McPhee v. Reclamation District, 161 Cal. 566, 570, 119 P. 1077, 1079, in an action where plaintiff was seeking to free her lands from the lien of assessments levied by the defendant reclamation district and a proceeding in quo warranto had been instituted to test its right to corporate existence: 'If the only opportunity of the landowner to raise this question is in quo warranto, and he diligently proceeds to seek this remedy, he must be protected in the possession of his land until the quo warranto proceedings can be brought to a determination.'
The complaints herein set forth the facts required to be alleged by the Revenue and Taxation Code for refund and recovery of taxes and the specific grounds of the claimed invalidity of the assessments here in question, as well as all of the steps taken by appellants in pursuing each of the administrative remedies. It is alleged that the city of Huntington Beach taxing or assessment levying authority having failed to file the statement, map or plat required by sections 54900-54903 of the Government Code with the Orange county assessor before February 1, 1951, the assessment was and is invalid for the fiscal years 1951-1952; that the assessment of the city of Huntington Beach taxes without extending any municipal benefits or services to the area annexed and taxed violated both the due process clause and the equal protection clause of the state and federal constitutions; that the purported annexation of the northwest extension was and is invalid as being in violation of the 'ocean boundaries rule', which provides that a city may only extend its boundaries perpendicular to the shore line; that the purported annexation of the northwest extension was and is invalid because the property annexed is not 'contiguous territory' in that it is not being and cannot be used for any legitimate municipal purposes; that the city of Huntington Beach failed to comply with the mandatory procedural requirements of state law for the annexation of uninhabited territory, in that (a) the notice of hearing was not published for the two weeks prior to the hearing as required by Government Code section 35311; (b) the ordinance of annexation was prematurely sealed and prematurely certified, and it was not forwarded to or filed by the Secretary of State of the State of California after its effective date as required by Government Code sections 35316-35318; and (c) the city of Huntington Beach failed to comply with the city charter requirement that every ordinance introduced shall be read upon its introduction and read a second time upon its final passage or adoption; that the notice of hearing of the proposed annexation was not in accordance with the constitutional requirements of due process; and that the purported annexation by the city of Huntington Beach of non-contiguous ocean area was and is a fraud on the law. It is further alleged that appellants, on June 29, 1951, again on July 2, 1951, filed petitions for equalization with the Orange county board of supervisors sitting as a board of equalization and that these petitions were rejected; that appellants then filed with the Orange county board of supervisors petitions for cancellation or correction of assessment and levy of taxes under section 4831 and 4986(b) of the Revenue and Taxation Code and that these petitions were also rejected by that board; that appellants then paid the taxes under protest; that thereafter appellants presented claims for refund to the city council of defendant city and to the board of supervisors of defendant county; that these claims were rejected by both said city council and said board of supervisors; that thereafter, on May 27, 1952, appellants filed these actions for refund and recovery of taxes.
Respondents argue that these actions are barred by the provisions of section 349 1/2 of the Code of Civil Procedure, which provides that the validity of any proceedings for the annexation of territory to a municipal corporation * * * shall not be contested in any action unless such action shall have been brought within three months after the completion of such proceedings. However, the statute applicable to actions for refund of taxes, Revenue and Taxation Code, section 5103, provides that such actions may be commenced within six months after rejection of claims for refund by the board of supervisors, and these actions were filed within the time therein prescribed.
In view of the pending proceedings in quo warranto and the facts alleged in the complaints herein, we conclude it was error to sustain the demurrers without leave to amend.
Judgments reversed.
BARNARD, P. J., and GRIFFIN, J., concur. --------------- * Opinion vacated 283 P.2d 257.