Roth v. City of Los Angeles

On February 11, 1969, the city council (Ordinance No. 138,207) ordered abatement of the public nuisance on respondents’ property (§ 39571). In October 1969, the offending vegetation on respondents’ property was removed. In compliance with sections 39574-39584, the city council assessed the sum of $767.70 on respondents’ property for the costs of abatement. It is undisputed that respondents were overcharged by the sum of $23.10.

Respondents attended the city council meeting of February 16, 1970, held pursuant to section 39576, and protested the assessment. The assessment was confirmed. On December 7, 1970 and April 2, 1971, when respondents paid the assessment, they filed a written protest in accordance with Revenue and Taxation Code sections 5136-5137. The protest specified the grounds therefor, and asserted that the entire assessment was void.

Respondents thereafter instituted this action for recoveiy of the assessment, alleging that it was illegal and void both because the statutory procedure was violative of due process and because no nuisance had existed on the property. The trial court found, in sum, that although the city had proceeded in accordance with the relevant Government Code provisions, the assessment must be refunded. Failure to provide notice prior to the first ordinance, and the lack of certain statutorily expressed procedural guarantees for the hearing itself were held to violate due process. In addition, overcharges in the assessment in the sum of $23.10 were found.

Thus, section 39583, in calling for application of “[l]aws relating to the levy, collection, and enforcement of county taxes,” must be read to include the procedures relating to taxes paid under protest. In light of the assessment design in the Government Code, based on a borrowing of relevant tax laws, the dual scheme for recovery envisioned by the Revenue and Taxation Code must be preserved. The administrative claims provisions of Government Code section 39585, so similar in their limitations to Revenue and Taxation Code section 5097, cannot be read to preclude utilization of the alternative judicial recovery system, contained in the tax laws expressly made applicable by Government Code section 39583.

Section 376 of the Los Angeles Charter, also urged by appellant (apparently for the first time on this appeal) is likewise not a bar to the instant suit. That general claims provision is not controlling in suits for taxes paid under protest. (Southern Cal. Tel. Co. v. Los Angeles, 45 Cal.App.2d 111 , 127-128 [ 113 P.2d 773 ]; cf. Brill v. County of Los Angeles, supra, 16 Cal.2d 726 ; Signal Oil & Gas Co. v. Bradbury, 183 Cal.App.2d 40 , 48-53 [ 6 Cal.Rptr. 736 ].)

Appellant next contends that respondents were precluded from bringing the action below because they failed to exhaust their available administrative remedies.

Nor does section 5138 of the Revenue and Taxation Code, under which respondents filed suit below, dispense with the obligation to exhaust administrative remedies as a condition precedent to judicial jurisdiction. (Westinghouse Elec. Corp. v. County of Los Angeles, 42 Cal.App.3d 32 , 38 [ 116 Cal.Rptr. 742 ].) As a general rule, a taxpayer seeking judicial relief from an erroneous assessment must exhaust administrative remedies first. (Stenocord Corp. v. City etc. of San Francisco, 2 Cal.3d 984 , 987 [ 88 Cal.Rptr. 166 , 471 P.2d 966 ].)

Respondents’ failure to attend the city council hearing of Februaiy 11, 1969, to present their objections to the proposed abatement, constitutes a nonexhaustion of an available administrative remedy. The fact that the remedy is no longer available does not, of course, alter application of the doctrine, as to hold otherwise would obviously permit circumvention of the entire judicial policy behind the doctrine. (Alexander v. State Personnel Bd., 22 Cal.2d 198 [ 137 P.2d 433 ]; cf. Humbert v. Castro Valley County Fire Protection Dist., 214 Cal.App.2d 1 [ 29 Cal.Rptr. 158 ].)

In both their protest letter upon payment of the tax and their complaint below, respondents stated numerous factual objections to the declaration and abatement of the nuisance which, if presented to the city council at its February 11, 1969, hearing, could have been valid grounds for nonabatement. Respondents claimed that the vegetation on their property was not within the Government Code definition of “weeds”; that the vegetation was fire resistant; that the vegetation was not located

The first point argued by respondents is that the failure to give notice prior to the preliminary determination of the existence of a nuisance violates due process. Thain v. City of Palo Alto, 207 Cal.App.2d 173 [ 24 Cal.Rptr. 515 ], found a virtually identical local ordinance procedure consonant with constitutional requirements. “It is well settled that when special or local assessments have been levied by a municipality for such improvements, procedural due process is satisfied if at some stage of the proceedings the owner of the property affected is given notice and the opportunity to be heard on the question of the validity, fairness and amount of the assessment [citations omitted] .... The foregoing authorities support the propositions that the requirements of due process are met where notice and an opportunity to be heard are afforded the property owner at some time before the assessment becomes final and . that such notice is sufficient even where it is given after the improvement but before the assessment becomes final. (See 48 Am.Jur., Special or Local Assessments, § 169, p. 707; 63 C.J.S., Municipal Corporations, § 1401, p. 1177.)

“Applying the foregoing principles, we conclude that the notice provisions of City’s ordinance satisfy the requirements of due process. While section 32.02 of the ordinance provides for a resolution of the City Council declaring weeds a public nuisance to be passed at a meeting without prior notice thereof to the property owner, the property owners are given notice by publication of such resolution, of the proposed destruction or removal of weeds and of the subsequent public meeting of the City Council at which they will have an opportunity to protest the contemplated abatement.” (Thain v. City of Palo Alto, supra, 207 Cal.App.2d at pp. 190-191.)

Moreover, it is clear under section 39569 that the city cannot act to abate the nuisance until the hearing is concluded. The preliminary declaration is not final as against the landowner, and respondents fail to suggest how they are “deprived” of any property interest at that juncture. Neither abatement nor assessment can occur until the hearing is held pursuant to the statute. In this sense, notice following the preliminary ordinance serves much the same purpose as a complaint in a civil suit; that is, it notifies the property owner that the city alleges the existence of

Respondents’ second allegation of constitutional infirmity relates to the procedure at the hearing itself. As observed earlier, respondents did not attend the hearing, and there is no evidence in the record as to the actual procedure followed at the hearing.

It has been generally stated that due process requirements depend on the circumstances of the particular situation, and vary with the subject matter and the necessities of the situation. Factors such as the nature of the right affected, the degree of danger caused by the proscribed condition or activity, and the availability of prompt remedial measures must be considered. (Sokol v. Public Utilities Commission, 65 Cal.2d 247 , 254 [ 53 Cal.Rptr. 673 , 418 P.2d 265 ].) “Due process does not require any particular form of notice or method of procedure. If the statute provides for reasonable notice and a reasonable opportunity to be heard, that is all that is required.” (Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75 , 80-81 [ 87 P.2d 848 ]; CEEED v. California Coastal Zone Conservation Comm., 43 Cal.App.3d 306 , 329 [ 118 Cal.Rptr. 315 ].)

The court below apparently concluded that, unless the precise procedural rights of objecting property owners are expressed in the statutes, due process is violated. The case cited for this statement (People v. Lockheed Shipbuilding & Constr. Co., 35 Cal.App.3d 776 [ 111 Cal.Rptr. 106 ]) does not support that conclusion. Rather, Lockheed merely reasserts the well-established rule that some form of notice and hearing must be provided by the statute itself and the statute in Lockheed made no provision for a hearing.

The trial court’s conclusion of unconstitutionality in view of the statutory provisions for notice (§§ 39566, 39567, 39567.1) and a hearing (§§ 39566, 39568, 39569), was erroneous. There was no evidence that the hearing before the city council proceeded in other than an orderly manner, or that respondents (and other objecting property owners) would not be accorded all procedural rights required by due process. Respondents’ citation of Walker v. City of San Gabriel, 20 Cal.2d 879 [ 129 P.2d 349 , 142 A.L.R. 1383 ], is inapposite, for in that case the plaintiff attended the administrative hearing and provided evidence of

The statutory scheme provides for notice and an opportunity to be heard; it would be contrary to settled rules of construction to presume, in the absence of any supporting evidence, that the procedures utilized thereunder are constitutionally defective. “The familiar rules, however, require that ‘The Constitution and the statute are to be read together,’ and that if ‘the terms of a statute are by fair and reasonable capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.’ ” (County of Madera v. Gendron, 59 Cal.2d 798 , 801 [ 31 Cal.Rptr. 302 , 382 P.2d 342 , 6 A.L.R.3d 555 ]; People v. Davis, 68 Cal.2d 481 , 483-484 [ 67 Cal.Rptr. 547 , 439 P.2d 651 ]; Tilghman v. Superior Court, 40 Cal.App.3d 599 , 608 [ 115 Cal.Rptr. 195 ].) The presumption must be in favor of the validity of the statute and consistency with constitutional requirements if this is possible under a reasonable interpretation, as it is here. The recent case of People v. Amor, 12 Cal.3d 20 [ 114 Cal.Rptr. 765 , 523 P.2d 1173 ], plainly refutes the basis for the triál court’s determination. In that decision, the court considered whether Penal Code section 987.8, relating to recoupment of costs of appointed counsel, violated due process in its failure to expressly provide for prior notice and a hearing. The court stated: “Just as the Supreme Court of the United States in Morrissey did not hold the Iowa statute there involved unconstitutional on the ground that it did not expressly provide for notice or a hearing, we did not hold the statutoiy provision under consideration in Vickers unconstitutional on the ground that it did not specifically spell out all the requirements for due process thereunder. The important factor in each instance was determined to be whether the minimum requirements for due process had been satisfied —not whether they were statutorily required.” (12 Cal.3d at p. 30.)

The court in People v. Amor, supra, at page 30, further held: “Under the circumstances, since the proceedings against defendant comported with due process requirements, and the statute did not expressly sanction the taking of her property without compliance with such requirements, we hold that defendant was not deprived of her constitutional right to due process and that the fact that the statute does not expressly provide for notice and a hearing does not render it unconstitutional. not only may the requirements of notice and a hearing be implied from the due process clause, but, in addition, the rights to discovery, confrontation, cross-examination, and other procedural devices may likewise be implied.”