Opinion
A129143
09-29-2011
JAMES SINGH, Plaintiff and Appellant, v. CITY OF OAKLAND et al., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RGO08-394334)
This is the most recent chapter in long-running litigation between appellant James Singh and the City of Oakland (City) arising from nuisance abatement actions brought against Singh's Oakland properties. When last before us, we affirmed a trial court ruling sustaining a demurrer to Singh's complaint against the City, challenging the validity of liens placed against the properties and efforts by the City to enforce those liens by tax sale. (Singh v. City of Oakland (Nov. 17, 2006, A112979) [nonpub. opn.] (Singh I).) We held that while Singh may have been entitled to pursue a tax refund action against the City, his tort claims were barred by the statutory governmental immunity.
Also named as defendants were several City employees. Singh does not separately challenge the order sustaining the demurrer as to those defendants.
Singh has pursued similar claims in the federal court, so far without success. (Singh v. City of Oakland (9th Cir. Apr. 26, 2011, No. 09-17774) 2011 WL 1558680.)
Undeterred, Singh then filed a new action against the City. He did not seek a refund of the taxes paid, but instead alleged new or re-stated tort claims. The trial court ultimately sustained the City's demurrer to his second amended complaint without leave to amend on the ground that our prior ruling was dispositive of Singh's tort claims. It was. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In Singh's prior complaint against the City (Singh v. City of Oakland (Super. Ct. Alameda County, 2005, No. RG05-5203280), he sought injunctive relief and declaratory relief, seeking to restrain enforcement of tax liens totaling more than $26,000 through tax sale of his real property. He sought a refund of taxes from the City, but failed to allege that he had filed an administrative claim for a refund after paying the taxes in issue, as required by Revenue and Taxation Code section 5142. He also alleged tort claims for "fraud" and "nondisclosure" concerning special assessments levied on the property as a "blighted" property, and sought damages from the City for slander of title, as a result of the liens imposed for the unpaid taxes.
The City demurred to that complaint, contending that Singh's sole remedy was an action for a refund after paying the taxes in issue, and that he had not pled the requirements for a refund action. The trial court sustained the demurrer with leave to amend, and entered judgment against Singh after he refused to amend his pleadings.
We affirmed, holding that Singh was required to abide by the "pay first and litigate later" rule. (Singh I, supra, A112979; see Allen v. Regents (1938) 304 U.S. 439, 456 (conc. opn. of Reed, J.); Flying Dutchman Park, Inc. v. City and County of San Francisco (2001) 93 Cal.App.4th 1129, 1134-1141(Flying Dutchman)) We also held that "to the extent any of [Singh's] other causes of action seek damages from the City, or remedies beyond refund of an allegedly erroneous assessment, such claims are barred by Government Code section 860.2, subdivision (b). [Citation.]" (Singh I, supra, A112979.)
"Neither a public entity nor a public employee is liable for an injury caused by: [¶] (a) Instituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax. [¶] (b) An act or omission in the interpretation or application of any law relating to a tax." (Gov. Code, § 860.2.)
On June 23, 2008, Singh filed a new complaint (Singh v. City of Oakland (Super. Ct. Alameda County, 2010, No. RG08-394334). The new complaint also alleged, inter alia, causes of action for fraud, intentional misrepresentation, slander of title, declaratory relief and an accounting, as well as well as intentional interference with prospective economic relations and inverse condemnation. He did not pursue a refund claim.
The City's demurrer to the new complaint was sustained with leave to amend. The court instructed Singh to "allege facts that show the immunity provided by . . . Goverment Code section 860.2 and Revenue and Taxation Code section 4807 is not applicable to Defendants." The City again demurred to Singh's first amended complaint, and the trial court again sustained the demurrer with leave to amend, principally on the grounds of uncertainty as to "the subject of this lawsuit and what relief [Singh] seeks." The trial court sustained the City's demurrer to Singh's second amended complaint without leave to amend. The court held that despite being given leave to amend to do so, Singh had still not alleged exhaustion of administrative remedies under the Revenue and Taxation Code and had expressly declined to pursue a refund claim, and that under this Court's ruling in Singh I, any remaining claims were barred by Government Code section 860.2. Judgment was entered on May 25, 2010.
Singh contends that there are "significant facts in support of his causes of action" and that he was "denied adequate time for discovery."
II. DISCUSSION
A. Standard of Review
"A demurrer tests the sufficiency of a complaint as a matter of law. [Citation.] The allegations of fact contained in the complaint must normally be accepted as true. [Citations.]" (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1718-1719.) However, "we are not bound to accept plaintiff's conclusionary, ineffectual or improperly pleaded allegations. [Citations.]" (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 121.)
"On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.] [¶] We do not, however, assume the truth of contentions, deductions, or conclusions of law. [Citation.]" (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440.)
"[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) A plaintiff may show for the first time on appeal that the complaint can be amended to state a cause of action. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.) He nevertheless bears the burden of demonstrating how the proposed amendment would render his complaint legally sufficient. (Id. at p. 1388.) B. Appellant's Briefing
While purporting to recite the historical facts underlying his dispute with the City, Singh's briefing is virtually devoid of citations to the record below, and those few references he does make are either to matters of questionable relevance, or to items not before the trial court below at all. It is an appellant's duty to cite accurately to evidence in the record that supports the factual representations in the appellate briefs and the court will not step in to perform the task for them. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) We may disregard factual assertions unsupported by citations to the record. (Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 392, fn. 2.)
Singh also includes a laundry list of items in his appellant's appendix, and as attachments to his reply brief, that were not part of the trial court record (see Cal. Rules of Court, rule 8.204(d)), and asks that we take judicial notice of them, without explaining their relevance to the sufficiency of his second amended complaint, or the legal basis for doing so. It is true that we may consider matters which may be judicially noticed in assessing the sufficiency of the pleadings on demurrer. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) But a motion requesting judicial notice must state why matter to be noticed is relevant to the appeal. (See Cal. Rules of Court, rule 8.252(a)(2)(A).) We decline to take judicial notice of any of the extraneous materials submitted since there is no motion and no articulated basis, nor any readily apparent basis, to do so.
Singh separately requested that we take judicial notice of a June 27, 2011 report of the Alameda County Grand Jury, critical of the operations, policies and procedures of the City's building services division. We deny the request as irrelevant.
Singh further seeks "augmentation of the record" to reflect payments which he allegedly made on the contested liens and assessments, to show that certain liens were "void" and that the City's continued collection efforts constituted "fraud." Some of these are documents filed in his federal litigation. Augmentation of the record is permitted to include a certified transcript of trial court proceedings or "[a]ny document filed or lodged in the case in the superior court" (Cal. Rules of Court, rule 8.155), not to present documents for appellate review that were never presented to or considered by the trial court. An appeal seeks review of a decision of the trial court, not consideration of new evidence in the first instance. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [evidence not presented in the trial proceeding is beyond the scope of appellate review].) C. Res Judicata
" 'As generally understood, "[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy." [Citation.]' " (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken))"The doctrine 'has a double aspect.' [Citation.] 'In its primary aspect,' commonly known as claim preclusion, it 'operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]' [Citation.] 'In its secondary aspect,' commonly known as collateral estoppel, '[t]he prior judgment . . . "operates" ' in 'a second suit . . . based on a different cause of action . . . "as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." [Citation.]' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 252-253; Boeken, supra, 48 Cal.4th at p. 797.) "Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, 'precludes relitigation of issues argued and decided in prior proceedings.' [Citation.] . . . [¶] . . . A predictable doctrine of res judicata benefits both the parties and the courts because it 'seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.' [Citation.]" (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897, fn. omitted.)
In Singh I, we addressed the sufficiency of Singh's complaint against the City in his prior action, and unequivocally held that, under well-established authority, a suit to recover alleged overpayments was the "exclusive means of judicial review of tax proceedings." (Singh I, supra, A112979, citing State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633, 638; Flying Dutchman, supra, 93 Cal.App.4th at pp. 1134-1136; Writers Guild of America, West, Inc. v. City of Los Angeles (2000) 77 Cal.App.4th 475, 481.) In Singh's current case, he specifically declined to pursue this remedy despite clear opportunities to do so. His argument here seems to be that, since he has alleged that the assessments against him were fraudulent and invalid in the first instance, he is exempted from the otherwise applicable requirement. Singh does not even attempt to distinguish the cases holding otherwise. (See Westinghouse Elec. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 40 [rule requiring exhaustion of administrative remedies is not excused by a claim that the governmental agency acted fraudulently].) Nor does he present any cogent argument or legal analysis why our decision in Singh I is not res judicata on this exact issue. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 ["[t]o demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error"].) Singh addresses the question only in his reply brief, and asserts that his challenges to the validity of the assessments are not barred because he has now alleged "facts not in existence" at the time of his prior lawsuit. The sole case authority Singh cites on this point, Keidatz v. Albany (1952) 39 Cal.2d 826, does not support his argument. As the court noted there, "even though different facts may be alleged in the second action, if the demurrer was sustained in the first action on a ground equally applicable to the second, the former judgment will also be a bar. [Citations.]" (Id. at p. 828, italics added.) Singh's prior complaint was not factually deficient—it was legally deficient—and it remains so. D. Governmental Tort Immunity
This case was mistakenly cited in Singh's reply brief as 39 Cal.2d 781.
In our prior decision we also found Singh's tort claims against the City and its officials to be barred by the governmental immunity provided under Government Code section 860.2. (Singh I, supra, A112979.) His argument in the trial court and here is that he is alleging intentional tortious acts by City officials, who are not immune because they acted with "fraud, corruption or actual malice." While he at least discusses the limitations on tort immunity provided under Government Code section 822.2, Singh completely ignores the explicit immunity provided by Government Code section 860.2 to public entities and public employees for "an injury caused by: [¶] (a) Instituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax. [¶] (b) An act or omission in the interpretation or application of any law relating to a tax." Singh's entire discussion of this section consists of a two sentence claim in his reply brief that the sanctions imposed on him by the City were criminal, and not a tax, and that "Government Code Section 860.2 is not applicable." Once again he fails to support his claim with any reasoned argument or citation to authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when an appellant raises an issue "but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
"A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice." (Govt. Code, § 822.2.)
In his opening brief, Singh acknowledges that "[t]he gravamen of defendants [sic] actions are that fictitious assessments, fines fees, charges penalties and cost fines were levied . . . and enforced against [his] properties . . . ." He fails to show (and makes no effort to show) why express provisions of the Government Code do not preclude his claims. Further, to the extent he asserts tort claims in his most recent operative complaint based on the same facts and theories he previously advanced, Singh fails to make any reasoned argument why the doctrines of res judicata and collateral estoppel do not operate as a complete bar to his causes of action. E. Discovery
On appeal, Singh complains that he was "denied adequate time for discovery" and that the City "has deliberately withheld discovery." He says he "requested adequate time for discovery, primarily in support of his fraud cause of action." The record citations he provides in support of this claim have nothing to do with any request for additional time to conduct discovery, and he fails to articulate how any deficiencies in his complaint could have been cured with the benefit of further discovery. His complete failure to raise the issue at all in the trial court is fatal to his claim. We need not consider issues that an appellant fails to raise in the trial court. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800-801.)
In his reply brief, Singh asserts that it is untrue that he failed to raise the discovery issue in the trial court. The "evidence" he cites is a letter, attached only as an exhibit to his brief, addressed to the judge presiding in his federal action.
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III. DISPOSITION
The judgment of dismissal is affirmed.
Bruiniers, J. We concur: Jones, P. J. Simons, J.