MONTGOMERY WARD CO v. WELCH (1936)

Plaintiff filed its complaint for declaratory relief which defendant answered. Plaintiff moved for judgment on the pleadings, which was denied, and appeals from the order denying its motion for judgment on the pleadings, on its complaint, and defendants' answer thereto. Such an order is not appealable. Code Civ.Proc. § 963 (as amended by St.1933, p. 2472); Holton v. Noble, 83 Cal. 7, 23 P. 58.

At the same time defendant filed its answer it filed its cross–complaint and plaintiff thereafter filed its answer to defendant's cross–complaint. Defendant moved for judgment on the pleadings on its cross–complaint and plaintiff's answer thereto, which motion was granted, and judgment thereon was duly made and entered. From the judgment made pursuant to the order granting the motion for judgment on the pleadings on the cross–complaint and answer thereto plaintiff appeals, and on this record the merits of the appeal must be determined. The cross–complaint contained the following allegations: That plaintiff owned, was in possession of, and controlled personal property at its warehouse at 4814 Loma Vista street in Los Angeles county at 12 o'clock noon on the first Monday in March, 1931, consisting of taxable fixtures, merchandise, and money on hand; that it made a statement of its taxable property to the assessor during the assessment season in which it gave its estimate of the value of the property as follows: “Mdse. $37,405.60, Furniture $2,720.85, and Money on Hand $1,485.60”; that defendant assessor, on July 3, 1931, assessed the property at the following greater valuation above the owner's estimated values (except the money) to wit: “Mdse. $141,000, Fixtures $13,000 and Money $300”; that plaintiff owned no real property in Los Angeles county; that bills for the taxes had been issued to plaintiff, demand for payment made, and nonpayment of the taxes; that the amount due and unpaid was $4,351.26. The answer of plaintiff to the cross–complaint denied the filing of the statement by them on July 3, but admitted filing it in the form pleaded on June 29, 1931. This denial is immaterial, as both dates were within periods of time allowed by law for the filing of said taxpayer's statements. Plaintiff then denied the allegations of paragraph V of the cross–complaint except that it alleged after June 29, 1931, the assessor made an arbitrary assessment in the amount stated in the cross–complaint and on July 15, 1931, signed a notice to plaintiff and mailed it to plaintiff, which notice and statement that the property of plaintiff in Los Angeles county, belonging to plaintiff, was assessed in the amount stated in the cross–complaint, but that before April 1, 1931, all of the property had been removed from the warehouse at 4814 Loma Vista and that when the assessment was made there was no property at the warehouse. Plaintiff further alleged that the assessor did not himself, or by deputy, enter the warehouse until after April 1, 1931, and never viewed the property, as it had been previously removed; that the assessor assumed there was approximately the same amount of property in the warehouse that there was on the first Monday in March, 1930, and arbitrarily assessed the property at the same increase and amount as the previous year; and, further, that the assessor did not comply with the provisions of law in making the arbitrary assessment or reporting it to the board of equalization, and that plaintiff did not receive the notice of July 15 until too late to make any protest before the board of equalization.

The sole questions to be determined are: Does the cross–complaint state a cause of action and, if so, does the answer state a defense? It it obvious that the cross–complaint states a cause of action. Turning to the answer we find that nowhere is it alleged what the capitalized value of the property is or was, but plaintiff relies on its sworn statement of property with its estimate of value thereon as pleading the value of the property. The statement furnished by the plaintiff is the one required by Political Code, § 3629, and this Code section does not require or authorize the taxpayer to place or furnish his own estimate of value. The affidavit on the statement so furnished is in the form required by Political Code, § 3630, and it does not purport to swear to the value of the property. Since the valuation of one's property is not required or authorized to be in the “statement of property subject to taxation” (title, Pol.Code, § 3629), it cannot be considered of value in support of plaintiff's pleading as to value. As we have seen, it is not even an affidavit of value. “The statements were evidently those required by sections 3629–3633 of the Political Code. Nowhere in them, or in any other sections of that Code which have been called to our attention, is there any provision which requires the person whose property is to be assessed to fix the value thereof. * * * We cannot, therefore, perceive what relevancy the statements had to the question of value of the land to be taken. They were not in any way declarations by the defendant as to the value of his land, and, even if they have the same force and effect as an assessment roll made by the proper officer, they are inadmissible.” San Jose & A. R. Co. v. Mayne, 83 Cal. 566, 23 P. 522, 523. That even a completed assessment is not evidence of value, see Yolo Water Co. v. Edmands, 50 Cal. App. 444, 195 P. 463; McNulty v. Lawley, 42 Cal.App. 747, 184 P. 50; City of Los Angeles v. Deacon, 119 Cal.App. 491, 7 P.(2d) 378. There being no allegation as to the value of the property, the allegation that the assessment was arbitrary is a mere legal conclusion.

Plaintiff contends that the failure of the assessor to view the property prevented him from making a valid assessment except to accept the owner's estimate of value as conclusive and binding. The answer shows affirmatively that before April 1, 1931, and within the time the assessor could legally view and assess, plaintiff put it beyond the power of the assessor to view the property by removing it from the warehouse. We have not been pointed to nor have we found any statutory duty for the assessor to view the property before he can assess it, nor do we know of any case so holding. We think the rule is: “An assessment is not invalidated by the fact that the assessors did not actually view and inspect the property in question if they have otherwise sufficient knowledge or evidence of its existence and value.” 61 Cor.Jur. 629. See cases there cited. It is presumed that a public official does his duty and that he had sufficient information to make an assessment, and no facts are pleaded by plaintiff in its answer showing that the assessor did not do his duty or that he did not have sufficient information to make the assessment.

The portion of the answer to the cross–complaint that the assessor “arbitrarily assumed that on the first Monday of March, 1931, there was in said warehouse approximately the same quantity of goods that had been in the same on the first Monday in March, 1930, and arbitrarily assumed and adopted the figures and estimate made one year prior thereto and without any right and contrary to law made said arbitrary assessment” do not aid plaintiff. There is no pleading that it was not the same property and the statement furnished by the plaintiff simply stated: “Mdse. at value $37,405.70, Furniture at $2,720.85.” As we have seen, the value meant nothing. No reason or facts are pleaded why a valuation was or should be different in 1931 than in 1930. It is not pleaded that it was not the same property and no value of the property at any time is pleaded. In the absence of a pleaded reason based on pleaded facts as to a change in the property or a change in its value, a previous year's assessment may properly be considered by the assessor as a basis for a subsequent year's assessment. Bodcaw Lumber Co. v. Boone, 171 La. 556, 131 So. 669. In fact, there is nothing in the answer to show that the property was not assessed at its actual cash value.

The allegation in the answer that “the said assessor did not comply with the law in any respect in making said arbitrary assessment or reporting the same to the board of equalization” is a pure conclusion of law of the pleader, and the pleading that the plaintiff did not receive the notice of assessment, pleaded July 15, 1931, until too late to make any protest before the board of equalization does not state, or tend to state, a defense as the assessor is under no duty to give notice of the assessment. It is the taxpayer's duty to keep himself informed as to his assessment. It follows that the motion for judgment on the pleadings for defendant on its cross–complaint and plaintiff's answer thereto was properly granted and judgment for defendant thereon made and entered, except that the judgment should be amended by striking therefrom that portion which gives a judgment in favor of defendants W. O. Welch tax collector of the county of Los Angeles, and Ed. W. Hopkins, tax assessor of the county of Los Angeles, and rendering judgment in favor of defendant county of Los Angeles only. Deering's Gen.Laws, Act 8471.

It is ordered that the judgment be amended by striking therefrom the words “defendants and cross–complainants” wherever used therein, and by inserting in lieu thereof the words “defendant and cross–complainant county of Los Angeles.”

The judgment, as amended, is affirmed; respondent to recover its costs of appeal. The purported appeal of plaintiff from the order denying its motion for judgment on the pleadings is dismissed.

TURRENTINE, Justice pro tem.

We concur: BARNARD, P. J.; MARKS, J.