CONNOLLY v. COUNTY OF ORANGE (1990)

OPINION

The lower court entered judgments issuing writs of mandate directing the County of Orange (County) to grant property tax exemptions for the possessory leasehold interests of persons living in a housing project located on property owned by the University of California and adjacent to its Irvine campus.   County appeals purportedly challenging the judgments on procedural grounds only.

We conclude the merits of the action are properly before us, and hold that the plaintiffs having a possessory interest in the University's property are entitled to claim a property tax exemption for it.   Nonetheless, we further find several of County's procedural objections have merit.   Therefore, we reverse the lower court's judgments.

FACTS

The Regents of the University of California (Regents) is a constitutional corporation charged with governing the University of California.   It owns property next to the Irvine campus named University Hills.   During the late 1970's the university began studying the need for and feasibility of developing low cost faculty housing near several of its campuses.   In 1981, Regents authorized the development of a faculty housing assistance program including projects built on university owned land at individual campuses.

The Irvine Campus Housing Authority (ICHA) was created in June 1983 to administer University Hills.   Under the plan, Regents executed a ground lease with ICHA.   In turn, ICHA developed the property.   Although University Hills contains some apartments, most of the land was subdivided and developed into single-family homes.   The plan provides for ICHA to contract with faculty members and other university employees who purchase the improvements and sublease the land on a long-term basis (i.e. 60 years or more).   Title to the land remains in the Regents.

The sublease agreements contain provisions to ensure the homes remain available to future university employees at affordable prices.   The appreciation of homeowner's equity is limited by using a construction replacement cost index.   This index ties the price of University Hills' homes to the rate of inflation, not the local real estate market.   Each sublease also gives priority to the university, its faculty, and other employees in case of a resale of the residence and assignment of the sublease.

Robert Connolly is an assistant professor at the Irvine campus.   He purchased a home in University Hills and subleased the land from ICHA.

When ICHA began developing University Hills, it contacted County to discuss the tax status of the possessory interests held by project residents.   Initially, County declined to discuss the matter.   In August 1985, the assessor's office tentatively concluded the possessory interests of University Hills residents should be taxed.   The assessor sought an opinion from the State Board of Equalization on the subject in 1986.   It sent the assessor a copy of a June 1986 legal opinion prepared for the Santa Cruz County assessor on a faculty and staff housing project similar to University Hills being developed on the Regents's Santa Cruz campus.

The state board's opinion noted prior court decisions held leasing school owned property to faculty members and students for residential purposes is exempt from property taxation under the state Constitution if this use of the property is reasonably necessary for educational purposes.   But the opinion suggested the Santa Cruz project might be distinguishable since persons purchasing housing in it “will have ownership interests in the improvements which are virtually indistinguishable from fee ownership even though legally designated possessory interests.”   The opinion concluded as follows:  “In short, while the test traditionally applied by the courts would suggest that the U.C. Santa Cruz improvements qualify for exemption, some question remains whether that is the correct conclusion because the improvements are beneficially owned by the faculty or staff members.   You may wish to consider denial of the exemption for this property so that the issue can be preserved for review and guidance by the courts.”

The Orange County assessor proceeded to assess the possessory interests of Connolly and other university employees who purchased homes in University Hills.   However, the possessory interests of persons living in the rental units were not assessed or taxed.

Connolly submitted an application for change of assessment with the Assessment Appeals Board in November 1987.   His application alleged the assessor's valuation exceeded the property's actual market value as of the date of purchase or change of ownership, and the land was exempt from property taxation because it served an educational purpose.   Hearings on the application were twice continued, and apparently the matter remains pending.

In December 1987, Connolly, Regents, and ICHA (collectively plaintiffs) filed this lawsuit against the County alone seeking to exempt from taxation the possessory interests of persons owning homes in University Hills.   The petition also sought a refund, with interest, of all taxes previously paid by University Hills homeowners.   The parties stipulated to certifying the lawsuit as a class action consisting of all homeowners in University Hills.

Connolly filed claims for an exemption and a refund of property taxes previously paid by him with the county assessor in June 1988.   The assessor rejected Connolly's exemption claim because he did not submit it on a form approved by the Board of Equalization, and the claim was made jointly on behalf of Connolly and other University Hills residents.

Both parties moved for summary judgment.   Plaintiffs also filed a motion for issuance of a writ of mandate.   In part, County asserted that since no University Hills resident timely or properly filed a claim for exemption, the assessor was never required to make a determination to grant or deny an exemption for the project.

At the hearing on their motions plaintiffs' counsel conceded Connolly was not refused an exemption, but simply told he had submitted his claim on the wrong form.   The parties stipulated Connolly is a full-time faculty member at the Irvine campus.   Plaintiffs' motion for issuance of a writ was modified to cover Connolly only.   As so modified, the court granted it exempting Connolly's possessory interest from taxation conditioned upon his submission of an amended claim for exemption to the County Assessor.   County's motion was denied.   A signed order was entered November 28, 1988.   County appealed that judgment.  (G007671.)

Trial for the remaining class members was set for January 17, 1989.   On that date, the parties stipulated to entry of a judgment directing County to grant a property tax exemption on each class member's possessory interest in the land underlying his or her home upon the submission to the assessor of a claim for exemption identifying the class member as a full-time employee of Regents.   County appealed from this judgment as provided by the parties' stipulation.  (G008130.)

Subsequently, this court granted County's motion to consolidate the appeals.

DISCUSSION

1. Summary of issues and argument.

On appeal, County contends plaintiffs:  (1) Sued the wrong party;  (2) failed to timely and properly file claims for exemption;  (3) have an adequate legal remedy;  and (4) failed to exhaust their administrative remedies before filing suit.

 County also argues the assessor's decision to grant or deny an exemption is discretionary.   By making this claim, we conclude the question of whether the possessory interests of University Hills residents are exempt from property taxation is properly before us for review.

We hold plaintiffs are entitled to claim an exemption for their possessory interests in the University Hills project.   However, for the reasons discussed below, plaintiffs are not entitled to establish the claim in this mandamus proceeding.

2. Plaintiffs are entitled to claim the college exemption.

County argues the assessor's determination of whether or not to grant a property tax exemption is discretionary.   Therefore, mandamus would not lie to control the exercise of it.   At oral argument County's attorney suggested the University Hills project would not qualify for tax exemption because it involved private housing built on leased land used only for residential purposes, and other local colleges and universities do not have similar housing programs.

 These arguments are without merit.  “Tax exemption is not a personal grant of the assessor but a legal right conferred by constitution and statute.”  (Goodwill Industries v. County of L.A. (1953) 117 Cal.App.2d 19, 26, 254 P.2d 877.   See also County of Sacramento v. Assessment Appeals Bd. No. 2 (1973) 32 Cal.App.3d 654, 663, 108 Cal.Rptr. 434.)  “When an officer dealing with assessments fails to act in accordance with the law, a writ of mandate can issue to compel the officer to comply with the law.”  (Board of Supervisors v. Archer (1971) 18 Cal.App.3d 717, 721, 96 Cal.Rptr. 379.)   Thus, while an assessor may have the discretion to refuse a claim of exemption if it is not timely submitted, where the procedural requirements are satisfied and the facts establish the claimant is entitled to the exemption asserted, the assessor has no discretion to reject it.

 Generally, all property in California is subject to taxation unless exempted by the state Constitution or the laws of the United States.  (Cal. Const., art. XIII, § 1;  Rev. & Tax.Code, § 201.)   For property tax purposes, real property includes not only ownership of it, but also possessory interests and improvements placed on the land.  (Rev. & Tax.Code, §§ 104, 105, 107.)

Property owned by the University of California is exempt from property taxation.  (Cal. Const., art. XIII, §§ 1, 3, subd. (d);  Rev. & Tax.Code, § 202, subd. (a)(3);  Hollister v. Sherman (1883) 63 Cal. 38, 39;  Regents of University of California v. State Bd. of Equalization (1977) 73 Cal.App.3d 660, 665–668, 140 Cal.Rptr. 857.)   However, a private person's leasehold interest in property owned by the state is not exempted from property taxation.  (De Luz Homes, Inc. v. County of San Diego (1955) 45 Cal.2d 546, 562–563, 290 P.2d 544;  Mann v. County of Alameda (1978) 85 Cal.App.3d 505, 507, 149 Cal.Rptr. 552.)   The question presented here is whether some provision of the California Constitution exempts plaintiffs' possessory interests in the University Hills housing project.

Article XIII, section 3, subdivision (d) of the California Constitution provides “[p]roperty ․ used exclusively for public schools, community colleges, state colleges, and state universities” is exempt from property taxation.   Several cases have applied this exemption to school owned property in a variety of situations analogous to the present case.  (Church Divinity Sch. v. County of Alameda (1957) 152 Cal.App.2d 496, 314 P.2d 209 [student parking lot, and single-family residences and apartment houses leased to faculty members and students either rent-free or for a reduced rental];  English v. County of Alameda (1977) 70 Cal.App.3d 226, 138 Cal.Rptr. 634 [employee occupancy of hospital and college owned property];  Mann v. County of Alameda, supra, 85 Cal.App.3d 505, 149 Cal.Rptr. 552 [college students renting apartments on property owned by the University of California];  Board of Trustees v. County of Santa Clara (1978) 86 Cal.App.3d 79, 150 Cal.Rptr. 109 [private university's property used as a golf course];  Ross v. City of Long Beach (1944) 24 Cal.2d 258, 148 P.2d 649 [privately owned property leased to a school district and used exclusively for public school purposes].)   These cases are based on the rationale the exemption applies to property “not on the basis of its ownership, but on the basis of its use for a public purpose.”  (Mann v. County of Alameda, supra, 85 Cal.App.3d at p. 509, 149 Cal.Rptr. 552.   See also Ross v. City of Long Beach, supra, 24 Cal.2d at pp. 262, 265, 148 P.2d 649.)

The present appeal is distinguishable from the foregoing cases since most University Hills residents have an ownership interest in the improvements on the property.  “The rules concerning the interpretation of tax exemption enactments emphasize that constitutional provisions and statutes granting exemption from taxation as a general rule are strictly construed to the end that such concession will neither be enlarged nor extended beyond the plain meaning of the language employed.   However, the rule of strict construction does not require that the narrowest possible meaning be given to the exempting language, for a fair and reasonable interpretation must be made of all laws with due regard for the ordinary acceptance of the language employed and the object sought to be accomplished.   To put it tersely:  strict construction must still be a reasonable construction [citations].”  (English v. County of Alameda, supra, 70 Cal.App.3d at p. 234, 138 Cal.Rptr. 634.)

In Ross v. City of Long Beach, supra, 24 Cal.2d 258, 148 P.2d 649, the Supreme Court held the exemption existed even though it assumed the property owner was receiving rent for the school district's occupancy of his property.  “Evidently the framers of the Constitution in making the exception in favor of property used exclusively for public school purposes had in mind the great benefits derived from our educational institutions and desired to relieve them from the burden of taxation.   The history of this state shows that it has been the steadfast policy of the people of the state to encourage in every possible way the cause of education.  [¶] The exemption of property used for public school purposes is not for the benefit of the private owner who may rent his property for said purpose, but for the advantage of the school district that may be compelled to rent property rather than to buy land and erect buildings thereon to be used for the maintenance of its school.   With this advantage the school district is able to rent property for a lower rental than the owner of the same property would be willing to accept from a private individual․”  (Id. at pp. 262–263, 148 P.2d 649.)

 Although the residents of University Hills own the improvements on the land, all residents are full-time university employees and their immediate family members.   While other local colleges and universities may not have similar housing programs, that fact does not preclude the University of California from implementing one at its Irvine campus.   Furthermore, the property is being used exclusively for the school's educational objectives.   Because of the high cost of housing in certain areas of the state, including Orange County, granting a tax exemption to University Hills residents assists the Regents in hiring and retaining competent faculty by providing them with housing at a reduced cost near the campus.

Thus, we conclude the possessory interests of University Hills residents are exempt from property taxation pursuant to Article XIII, section 3, subdivision (d) of the California Constitution.

3. Plaintiffs are not entitled to mandamus relief.

Having concluded plaintiffs are entitled to claim an exemption for their possessory interests, the next question is whether they can enforce the exemption by a writ of mandate.

The right to seek relief by means of a writ of mandate in tax matters is very limited.  Revenue and Taxation Code section 4807 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.”

In Western Oil & Gas Assn. v. State Bd. of Equalization (1987) 44 Cal.3d 208, 242 Cal.Rptr. 334, 745 P.2d 1360, the Supreme Court held section 32 of article XIII of the State Constitution [prohibiting the issuance of “legal or equitable le process ․ in any proceeding in any court” against the state or its officers “to prevent or enjoin the collection of any tax”], and Revenue and Taxation Code section 19081 [similar to section 4807, but applying to the Personal Income Tax Law] preclude use of mandamus “if the prepayment judicial determination sought would impede tax collection.”  (Id. at p. 213, 242 Cal.Rptr. 334, 745 P.2d 1360.)   Although a writ of mandate or other equitable relief is permissible in some circumstances (Id. at pp. 213–214, 242 Cal.Rptr. 334, 745 P.2d 1360), “․ prepayment relief must be limited to those situations in which it is clear that ‘ “under no circumstances” can the government prevail.’ ”  (Id. at p. 214, 242 Cal.Rptr. 334, 745 P.2d 1360.)

a. Plaintiffs did not have to exhaust their administrative remedies before commencing suit.

 County challenges plaintiffs's right to mandamus relief on several procedural grounds.   One claim is that the present action is premature because plaintiffs were obligated to first exhaust their administrative remedies.   In particular, County refers to Connolly's change of assessment request filed with the assessment appeals board, and the tax refund claim he submitted to the Board of Supervisors.

“Ordinarily, an aggrieved taxpayer must exhaust available administrative remedies before resorting to the courts for relief from an erroneous assessment of property taxes.  [Citations.]  Prior appeal to the local administrative board of equalization is not required, however, in instances where the facts are undisputed and the property assessed is tax-exempt, outside the jurisdiction or nonexistent, or where the ‘assessment is void for failure to follow statutory procedure.’  [Citation.]”  (C.H.B. Foods, Inc. v. County of Los Angeles (1987) 195 Cal.App.3d 821, 823–824, 241 Cal.Rptr. 18.   See also Star–Kist Foods, Inc. v. Quinn, (1960) 54 Cal.2d 507, 509–510, 6 Cal.Rptr. 545, 354 P.2d 1;  Japan Food Corp. v. County of Sacramento (1976) 58 Cal.App.3d 891, 895–896, 130 Cal.Rptr. 392.)

As plaintiffs note, the local assessments appeals board has no jurisdiction to grant or deny a tax exemption.  (Cal.Code Regs., tit. 18, § 302, subd. (c).)  Although, on its face, Connolly's application for a change of assessment indicates he was seeking both an exemption and a re-valuation of the property, it is clear from the record no issue respecting valuation of the property was presented.

Furthermore, the present proceeding does not involve an action to recover previously paid property taxes.  (Rev. & Tax.Code, § 5140 et seq.)   It is true, plaintiffs requested this relief in their petition.   But the judgments issued by the lower court only compelled the assessor to accept plaintiffs' claims for exemption.   In any event, as previously discussed, plaintiffs are entitled to claim an exemption for their possessory interests in the University Hills project.

Accordingly, we reject County's reliance on the exhaustion of administrative remedies requirement.

b. Plaintiffs sued the wrong party.

However, County's other arguments are meritorious.   First, County contends plaintiffs sued the wrong party.

 Code of Civil Procedure section 1085 states a writ of mandate “may be issued by any court, except a municipal or justice court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station․”  Mandate does not lie where the person or entity named as a respondent is not the one whose duty is involved.  (Wenzler v. Municipal Court (1965) 235 Cal.App.2d 128, 132, 45 Cal.Rptr. 54.   See also Peck v. Board of Supervisors (1891) 90 Cal. 384, 386, 27 P. 301;  Albori v. Smith (1937) 18 Cal.App.2d 615, 618–619, 65 P.2d 81;  Matteson v. Board of Education (1930) 104 Cal.App. 647, 656, 286 P. 482;  Brown v. Superior Court (1925) 70 Cal.App. 732, 736–737, 234 P. 409.)

 A petition for writ of mandate brought against one to perform duties imposed by law on another officer fails to state a cause of action.  (Bandini Estate Co. v. Payne (1935) 10 Cal.App.2d 623, 625, 52 P.2d 959.   See also Boggs v. Jordan (1928) 204 Cal. 207, 215–218, 267 P. 696.)   A failure to state a cause of action may be raised on appeal even if not previously raised by demurrer or answer.  (Civ.Proc.Code, § 430.80, subd. (a);  Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6.)

 Although an assessor is a county officer (Govt.Code, § 24000, subd. (j)), and an agent of the county when conducting tax assessments for it (Eisley v. Mohan (1948) 31 Cal.2d 637, 641, 192 P.2d 5), that does not mean plaintiffs can compel County to perform his obligations.   The assessor's duties are prescribed by statute.  (Rev. & Tax.Code, § 401 et seq.)   In People v. Langdon (1976) 54 Cal.App.3d 384, 126 Cal.Rptr. 575, the court held that while Government Code section 25303 gives a county board of supervisors authority to supervise the official conduct of county officers, the board “does not have the power to perform the county officers' statutory duties for them or to direct the manner in which the duties are performed.”  (Id. at p. 390, 126 Cal.Rptr. 575.)

In Peck v. Board of Supervisors, supra, 90 Cal. 384, 27 P. 301, the Supreme Court affirmed a judgment declining to issue a writ of mandate to compel a county board of supervisors to clear and repair a road where the maintenance of roads was a duty of the road overseer who performed his or her job under the supervision of road commissioners “pursuant to orders of the board of supervisors,” and the road overseer was not a party to the action.   (Id. at pp. 385–386, 27 P. 301.)   In Brown v. Superior Court, supra, 70 Cal.App. 732, 234 P. 409, the appellate court refused to direct the clerk of the superior court to enter a judgment:  “[H]e is not a party to this proceeding.   The person upon whom the duty is enjoined by the statute is a necessary party to the proceeding.  [Citation.]  A refusal by the clerk to enter the judgment would be in no sense a refusal by the court.”  (Id. at p. 737, 234 P. 409.)   And in Bandini Estate Co. v. Payne, supra, 10 Cal.App.2d 623, 52 P.2d 959, the court held a petition seeking to compel the auditor and tax collector to change the amount of taxes levied because of the assessor's alleged arbitrary and wrongful valuation of petitioners' property, failed to state a cause of action since neither officer had “any legal duty or authority to fix or change the valuations of property or the amounts of taxes to be levied thereon.”  (Id. at p. 625, 52 P.2d 959.)

Plaintiffs's reliance on Los Angeles v. Superior Court (1941) 17 Cal.2d 707, 112 P.2d 10 and McPhearson v. San Joaquin County (1899) 6 Cal.Unrep. 257 is without merit.  Los Angeles v. Superior Court, supra, involved numerous taxpayer actions brought against the county alone to recover taxes unlawfully collected by it for a city and several school districts.   The Supreme Court rejected the county's claim it was not a proper party, in part, because its officers were acting on behalf of the other unnamed governmental entities when collecting taxes for them.  (Id. at pp. 714–717, 112 P.2d 10.)  McPhearson involved a breach of contract action for damages.

 Plaintiffs also cite what they describe as a “plethora of cases” to support the claim a party may bring a mandamus proceeding against a county to compel action by its assessor.   All but one of the cited cases involved actions to recover previously paid taxes, not mandate proceedings.   None of the cases stands for the proposition asserted.  “A case is not authority for propositions not presented or considered.  [Citations.]”  (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851, 139 Cal.Rptr. 888.   See also California Coastal Com. v. Office of Admin. Law (1989) 210 Cal.App.3d 758, 763, 258 Cal.Rptr. 560;  Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 539, 238 Cal.Rptr. 363.)   We conclude County is correct in asserting this mandate proceeding was brought against the wrong party.

c. County has no duty to consider an exemption claim until a timely claim for exemption is filed.

 Next, County contends the assessor was under no duty to grant tax exemptions to University Hills residents because they failed to timely and properly file claims for exemption before bringing suit, and mere anticipation the assessor would deny the claims is not an excuse for noncompliance with the claim filing requirements.

“Mandate will not lie unless the applicant for the writ has a present interest in the remedy he seeks and the respondent has a present duty to perform the acts the applicant seeks to compel.  [Citations.]  The petitioner's right and the respondent's duty are measured as of the time the proceeding is filed.   [Citations.]”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 731–732, 248 Cal.Rptr. 115, 755 P.2d 299.   See also Baldwin–Lima–Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 813–814, 25 Cal.Rptr. 798.)

The Legislature has imposed certain procedural requirements a person desiring to claim an exemption must follow.   For the college exemption, one must annually file an affidavit containing specified information between the lien date and March 15.  (See Rev. & Tax.Code, §§ 117, 254, 255, 259.10, and 2192.)  Revenue and Taxation Code section 260 states:  “If any person, claiming any exemption named in this article, fails to follow the required procedure, the exemption is waived by the person.”

When plaintiffs filed the petition there was no compliance with the foregoing procedural requirements.   Contrary to plaintiffs's contention, County's conduct did not exempt them from satisfying the claim requirements.  “The writ of mandate does not lie to direct the performance of an act because of a merely anticipated demand and refusal.  [Citations.]  Under extraordinary circumstances an actual refusal may be excused when the attitude of respondent shows that if a demand were made, it would be refused [citation]․”  (Berkeley Sch. Dist. v. City of Berkeley (1956) 141 Cal.App.2d 841, 844, 297 P.2d 710.)   Here, the lower court specifically found, and plaintiffs conceded in the lower court, Connolly was not denied a claim of exemption.

When Connolly filed his claim, the filing period for the 1987–1988 tax year had expired.   Thus, the assessor was under no present existing duty to grant Connolly an exemption for that tax year.  (See Daniels v. Superior Court (1955) 132 Cal.App.2d 700, 701, 282 P.2d 1000.)

 Plaintiffs' assertion they are not obligated to comply with the exemption claim's procedural requirements is also meritless.  “The failure in any year to claim, in a manner required by the laws in effect at the time the claim is required to be made, an exemption or classification which reduces a property tax shall be deemed a waiver of the exemption or classification for that year.”  (Cal. Const., art. XIII, § 6.)   Although the constitutional provisions establishing property tax exemptions are self-executing, “it does not follow ․ that the legislature did not have the power to enact legislation providing reasonable regulation for the exercise of the right to the exemption granted by the Constitution․”  (Chesney v. Byram (1940) 15 Cal.2d 460, 463, 101 P.2d 1106.)

Thus, we conclude plaintiffs were obligated to comply with the procedural requirement of timely filing a claim for exemption.   They failed to do so here, and this failure was not excused by County's conduct.¹

d. Plaintiffs have an adequate remedy at law.

 Finally, County argues the provisions of the Revenue and Taxation Code establishing a tax refund claim procedure (Rev. & Tax.Code, §§ 5096 et seq.;   5140 et seq.) is an adequate legal remedy, and therefore, mandate will not lie.   Plaintiffs contend no adequate legal remedy exists because Regents is the party whose interests are primarily at stake and it could not participate in a tax refund lawsuit.

We find County's argument to be meritorious.  Code of Civil Procedure section 1086 states:  “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law․”  Generally, the issue of whether the petitioner has an adequate legal remedy is a question of fact for the trial court's determination.  (San Joaquin County Employees Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 820, 207 Cal.Rptr. 876.)

In tax cases, it is now settled the statutory procedure of requiring a taxpayer to pay the tax, make a tax refund claim to the county board of supervisors, and if it is denied, bring legal action to obtain a refund, provides an adequate remedy precluding the use of mandamus.  (Star–Kist Foods, Inc. v. Quinn, supra, 54 Cal.2d at p. 511, 6 Cal.Rptr. 545, 354 P.2d 1;  Sherman v. Quinn (1948) 31 Cal.2d 661, 665, 192 P.2d 17;  Jillson v. Board of Supervisors (1963) 221 Cal.App.2d 192, 195, 34 Cal.Rptr. 419.)   In Sherman, the Supreme Court stated:  “This form of procedure, widely used in the tax field, is based upon the principle that ‘delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.’ ”  (Id. 31 Cal.2d at p. 665, 192 P.2d 17.)

Some cases have granted a party mandamus relief from a tax assessment or levy where, under the facts, a legal action would not be adequate.   In Lockhart v. Wolden (1941) 17 Cal.2d 628, 111 P.2d 319, the Supreme Court found an action to cancel an invalid tax assessment inadequate because at the time a taxpayer who recovered wrongfully collected taxes could not obtain prejudgment interest, and, given the large number of persons who had been subjected to the invalid assessment, a multiplicity of the lawsuits would probably result.  (Id. at p. 633, 111 P.2d 319.)   In Oakdale Irr. Dist. v. County of Calaveras (1955) 133 Cal.App.2d 127, 283 P.2d 732, two irrigation districts brought a mandamus proceeding against the county to compel it to cancel taxes illegally levied against them.   The Court of Appeal found the “circuitous” procedure of first levying assessments against the lands within the districts' boundaries, paying the illegal tax, and then seeking a refund “does not afford to petitioners an adequate remedy.”  (Id. at p. 140, 283 P.2d 732.)

No such facts are presented by the present appeal.   Although University Hills contains a large number of residents, they could seek a refund as a class.  (Schoderbek v. Carlson (1980) 113 Cal.App.3d 1029, 1033–1037, 170 Cal.Rptr. 400.)

 We also reject Regents' claim its interests prevail over the determination of the individual residents' tax exempt status.   The tax is assessed on the possessory interests held by University Hills residents.   No attempt has been made to tax the Regents' ownership interest in the realty.   Furthermore, a successful tax refund claim would satisfy Regents' interest of ensuring its employees have affordable housing.   Thus, Regents is neither the primary nor even an essential party to this action.   We conclude mandate does not lie here since plaintiffs have an adequate remedy at law through the tax refund procedure.²

DISPOSITION

The judgments of the lower court are reversed and the matter remanded with directions to deny plaintiffs' petition for extraordinary relief.

I concur in the result of the majority opinion.   We are constitutionally prohibited from interfering in the collection of a tax.  (Cal. Const., art. XIII, § 32;  Western Oil & Gas Assn. v. State Bd. of Equalization (1987) 44 Cal.3d 208, 213, 242 Cal.Rptr. 334, 745 P.2d 1360.)   Plaintiffs could not, therefore, establish their right to an exemption through this mandamus proceeding.   Having concluded the judgment must be reversed, the majority's consideration of the propriety of the substantive ruling on the exemption is an inappropriate, advisory opinion.   I do not join the majority's analysis of the right to the exemption because a decision on this issue is unnecessary at this time and the issue is not thoroughly briefed.

FOOTNOTES

1.   At oral argument, the parties informed the Court plaintiffs filed refund requests with County, but no lawsuit had been filed in those proceedings because of the pendency of these appeals.   We assume that when our decision becomes final, the refund actions will go forward with the only remaining issues being whether the individual taxpayers timely filed claims providing County with sufficient information regarding the nature of the exemption sought.

2.   The concurrence questions the propriety of our deciding the merits of plaintiffs' right to claim an exemption, and concludes our resolution of the substantive issue constitutes merely an “advisory opinion.”  (Conc. opn. at p. 195.)   However, our decision to resolve the tax exemption issue follows the approach employed by the Supreme Court in Sherman v. Quinn, supra, 31 Cal.2d 661, 663–665, 192 P.2d 17.   Furthermore, we conclude County's argument respecting the assessor's authority to grant or deny exemptions placed the merits of plaintiffs' exemption claim before us for decision.The assertion that the right to claim an exemption is not thoroughly briefed is simply not correct.   Plaintiffs presented legal authority supporting their position on this issue, and asserted “[t]he time has come to cut through [County's procedural defenses] and to reach the merits of the exemption in this case․”  County deliberately attempted to avoid discussing the substantive issue by purporting to challenge the judgment only on procedural grounds.

MOORE, Associate Justice.

SONENSHINE, J., concurs.