Emberton v. County of San Diego
WILLIS MARS EMBERTON, and v. COUNTY OF SAN DIEGO, and
- Area
- civil
- Panel
- Patricia D. Benke (author)
Analysis
The trial court dismissed the plaintiffs' property tax refund action for failure to return the summons within one year as required by Revenue and Taxation Code section 5147. The Court of Appeal affirmed the dismissal, rejecting the plaintiffs' constitutional challenges and estoppel arguments.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal of action for failure to return summons within one year under Rev. & Tax. Code § 5147“The court granted County’s motion to dismiss. Emberton appeals.” | de novo | correct | agree with court The appellate court applied de novo review to the statutory interpretation and constitutional questions. It held that the one-year deadline is a valid legislative policy for expediting tax refund cases and that the defendant's filing of an answer does not waive the requirement, citing specific legislative intent to exclude a 'general appearance exception.' |
Constitutional challenge to Rev. & Tax. Code § 5147 (Due Process and Equal Protection)“Emberton cites no authority for his propositions and we have found none. However, identical arguments have been raised and summarily rejected with respect to the limitations expressed in Code of Civil Procedure sections 581a and 583” | de novo | correct | agree with court The court found no constitutional violation, reasoning that the statute serves a legitimate state interest in expediting tax refunds and that the one-year period is reasonable. It relied on established precedent regarding statutory limitations on constitutional rights. |
Estoppel argument based on County's conduct (transfer motion and answer)“Given these factors, the motion cannot be said to have “lulled” Emberton into failing to comply with his own filing requirements. Nor is there any evidence Emberton relied on County’s actions.” | abuse of discretion | correct | agree with court The court rejected the estoppel claim because the County's actions (transfer motion and answer) did not indicate an intent to proceed to trial on the merits, distinguishing the case from Synanon Foundation where extensive litigation activity occurred. The court found no evidence of reliance by the plaintiff. |
Authorities
- relied: Muller v. Muller (1960) 179 Cal.App.2d 815 — Constitutional rights are subject to reasonable statutory limitations on time to enforce them; fixing time limits is a matter of legislative policy.
- relied: St. Louis-San Francisco Ry. Co. v. Superior Court (1969) 276 Cal.App.2d 762 — Identical constitutional arguments against dismissal statutes (CCP 581a/583) have been rejected; no denial of due process if opportunity for hearing exists.
- relied: Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688 — Legislature intended tax refund cases to proceed more expeditiously than other civil matters and specifically rejected a 'general appearance exception' to the one-year deadline.
- relied: Synanon Foundation, Inc. v. County of Marin (1982) 133 Cal.App.3d 607 — Estoppel can bar dismissal under Rev. & Tax. Code § 5147 if defendant's voluntary actions indicate intent to submit matter to trial on the merits (e.g., answering interrogatories, setting trial).
- relied: Muller v. Coastside County Water Dist. (1960) 180 Cal.App.2d 712 — Supports the principle that statutory limitations on time to enforce rights are valid legislative policy.
The appellate opinion: sound — The opinion is sound because it correctly applies established precedent regarding statutory limitations on constitutional rights and accurately interprets the specific legislative intent behind Rev. & Tax. Code § 5147 as clarified in Ford Motor Co. The court effectively distinguishes the estoppel claim by contrasting the minimal conduct of the defendant here with the extensive litigation activity required for estoppel in Synanon Foundation.
The San Diego Superior Court dismissed Emberton's property tax refund action against the County of San Diego under Revenue and Taxation Code section 5147 because summons was not issued, served, and returned within one year of filing. The Court of Appeal affirmed, rejecting Emberton's due process and equal protection challenges to section 5147 and his claim that the County was estopped from invoking the statute by its early transfer motion, answer, and two-month delay in moving to dismiss.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal under Revenue and Taxation Code section 5147 upheld against constitutional challenge (due process and equal protection) that the one-year summons-return requirement is irrational where the defendant has answered.“Even if the return serves no purpose except as a device to eliminate cases after one year, it is a device which can find a reasonable basis in this need to act expeditiously.” | de novo | correct | agree with court The constitutionality of a statutory time limit is a question of law. The court correctly applied rational basis review, drawing on settled authority that the Legislature may fix reasonable time limits for enforcing rights (Muller v. Muller; St. Louis-San Francisco Ry.), and on Ford Motor Co. v. County of Tulare, which recognized the Legislature's deliberate rejection of a general appearance exception to section 5147. The interest in expeditious resolution of refund suits that accrue interest at public expense supplies a legitimate purpose, and a one-year period is plainly reasonable. The equal protection analysis is brief but adequate since the statute applies uniformly to all refund plaintiffs and no suspect class or fundamental right triggers heightened scrutiny. |
Rejection of plaintiff's estoppel theory that the County, by moving to transfer, answering, and waiting two months past the one-year mark to move to dismiss, was barred from invoking section 5147.“Nor is there any evidence Emberton relied on County’s actions. Indeed, it appears the motion had no effect whatsoever on Emberton.” | mixed | correct | agree with court The court reviewed the record for evidence of conduct indicating an intent to try the case on the merits and of reliance by the plaintiff, finding neither. It properly distinguished Synanon Foundation v. County of Marin, where the defendant engaged in extensive discovery, allowed trial setting, and waited two years to move. A transfer motion filed early in the period and an answer, with no discovery or trial-setting activity, do not resemble the Synanon facts, and the plaintiff's failure even to appear at the transfer hearing undercuts any claim of reliance. The conclusion that a two-month delay is not unreasonable as a matter of law is consistent with the mandatory language of section 5147. |
Authorities
- relied: St. Louis-San Francisco Ry. Co. v. Superior Court (1969) 276 Cal.App.2d 762 — Constitutional attacks on the mandatory dismissal statute for failure to serve and return summons are rejected; the limitation is a reasonable legislative time limit and does not deny due process.
- relied: Muller v. Muller (1960) 179 Cal.App.2d 815 — A constitutional right is subject to reasonable statutory time limits on its enforcement; fixing such limits is a legislative policy matter not subject to judicial nullification.
- relied: Muller v. Coastside County Water Dist. (1960) 180 Cal.App.2d 712 — Companion authority rejecting constitutional challenges to Code of Civil Procedure dismissal time limits.
- relied: Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688 — The Legislature intended tax refund actions under section 5147 to proceed more expeditiously than ordinary civil actions and specifically rejected a general appearance exception to the one-year service-and-return requirement.
- relied: Synanon Foundation, Inc. v. County of Marin (1982) 133 Cal.App.3d 607 — A defendant may be estopped from invoking section 5147 where its voluntary conduct (answering, responding to discovery, permitting trial setting, delaying two years before moving) indicates an intent to try the case on the merits.
- relied: Rand v. Bossen (1945) 27 Cal.2d 61 — Supreme Court authority that the Legislature may impose reasonable time limits on the assertion of rights, cited via Muller v. Muller.
The appellate opinion: sound — The opinion answers both of plaintiff's arguments with the governing framework: rational-basis review supported by Supreme Court and Court of Appeal authority upholding analogous dismissal statutes, and the Ford Motor Co. legislative history showing the Legislature deliberately refused a general appearance exception to section 5147. The estoppel analysis correctly distinguishes Synanon on its facts and applies the reliance requirement, and the mandatory language of the statute leaves little room for a different result.
Opinion — Benke
*270Opinion
BENKE, J.*Plaintiffs Willis Mars Emberton, Phyllis Emberton and Emberton Machine and Tool, Inc. (Emberton) appeal a dismissal for failure to return summons within one year. (Rev. & Tax. Code, § 5147.)
Facts
On April 24, 1984, Emberton filed a complaint against the County of San Diego, the board of supervisors, the county assessor, the auditor/ controller, the assessment appeals board and the county tax collector (County) for refund of county property taxes and injunctive relief.
The case was originally assigned to the El Cajon Municipal Court. However, County filed a request to transfer the case to superior court in San Diego. Immediately following its request to transfer the case, County filed a general denial.
Emberton filed no opposition to County’s request to transfer, nor did he appear personally or through counsel at the hearing on the motion. The . request to transfer was granted.
County then filed a motion to dismiss for failure to return summons within one year pursuant to Revenue and Taxation Code section 5147. The court granted County’s motion to dismiss. Emberton appeals.
Discussion
Emberton attacks the constitutionality of Revenue and Taxation Code section 5147 which provides; “No [action for refund] hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all such actions hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any defendant therein unless the summons shall have been issued and served and the return thereon made within one year after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended.”
A
Emberton argues Revenue and Taxation Code section 5147 is unconstitutional as applied because its requirement of summons and proof of *271service returned within one year bears no rational relationship to a legitimate state purpose where, as here, the defendant has answered the complaint. He also argues the statute violates due process because there is no countervailing state interest of sufficient magnitude to override his denial of access to the court.
Emberton cites no authority for his propositions and we have found none. However, identical arguments have been raised and summarily rejected with respect to the limitations expressed in Code of Civil Procedure1 sections 581a2 and 5833 (now restated in § 583.110 et seq.). (See St. Louis-San Francisco Ry. Co. v. Superior Court (1969) 276 Cal.App.2d 762, 769 [81 Cal.Rptr. 705]; Muller v. Muller (1960) 179 Cal.App.2d 815, 819 [4 Cal.Rptr. 419]; Muller v. Coastside County Water Dist. (1960) 180 Cal.App.2d 712, 713 [4 Cal.Rptr. 832].) These cases rest upon the basic principle that: “‘A constitutional right is always subject to reasonable statutory limitations as to the time within which to enforce it, if the constitution itself does not provide otherwise. The power of the legislature to provide reasonable periods of limitation, therefore, is unquestioned, and the fixing of time limits within which particular rights must be asserted is a matter of legislative policy the nullification of which is not a judicial prerogative.’” (Muller v. Muller, supra, 179 Cal.App.2d at p. 819 (quoting 31 Cal.Jur. 2d 430; citing Rand v. Bossen, 27 Cal.2d 61 [162 P.2d 457]; Scheas v. Robertson, 38 Cal.2d 119 [238 P.2d 982]; Fontana Land Co. v. Laughlin, 199 Cal. 625 [250 P. 669, 48 A.L.R. 1308].) This principle is clearly applicable within the context of Revenue and Taxation Code section 5147.
While the Legislature has elected to eliminate the return of service requirement from the successor statutes of sections 581 and 583, it did not so remove the requirement from Revenue and Taxation Code section 5147.
Clearly, by setting forth one-year service-and-return statutes in the area of property tax refunds, the Legislature has determined judicial action should *272be even more expeditious in such cases than in other civil matters. (Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 694 [193 Cal.Rptr. 511].) The filing of an answer in a particular case does not change this conclusion. In fact, the Legislature specifically rejected a “general appearance exception” to the one-year service and return deadline (id., at p. 691), serving to underscore its intention that tax refund cases proceed expeditiously.
Moreover, in cases involving tax revenues, government entities have interests distinct from civil actions which do not involve public moneys. Such interests are manifest in that class of cases where, as here, delays in returning tax refunds will accrue interest at public expense.
It is thus in the public’s best interest to assure the appropriate parties proceed as expeditiously as possible. Even if the return serves no purpose except as a device to eliminate cases after one year, it is a device which can find a reasonable basis in this need to act expeditiously. Moreover, the period within which the return service is required, i.e., one year, is unquestionably a reasonable period within which an individual bringing suit may be required to act.
Emberton also fails to demonstrate wherein Revenue and Taxation Code section 5147 is unreasonable as applied to him or that he has been denied an opportunity for a hearing. (See St. Louis-San Francisco Ry. Co. v. Superior Court, supra, 276 Cal.App.2d at p. 769.) Thus, there has been no denial of due process.
Moreover, given the fiscal impact upon governmental entities which underlies the refund statutory scheme, the one-year limitation is based upon practical considerations, and is applicable to all litigants. Thus the statute meets the test of equality under the same conditions and among persons similarly situated. It does not violate the equal protection clause.
B
As an alternative theory, Emberton argues even if Revenue and Taxation Code section 5147 passes constitutional muster, County is estopped from applying it in this case because (1) it conducted itself in a manner indicating it was proceeding to trial and (2) it waited two months following the one-year period before it filed its dismissal motion.
Approximately two months after the complaint was filed, County requested the case be transferred to superior court. Significantly, this step was taken almost simultaneous with—four days before—the filing of County’s answer. *273The timing of the request to transfer reflects the motion to transfer was employed properly as a device to have the case filed and heard in what County considered to be the appropriate court. Moreover, it was filed early in the statutory period. Given these factors, the motion cannot be said to have “lulled” Emberton into failing to comply with his own filing requirements. Nor is there any evidence Emberton relied on County’s actions. Indeed, it appears the motion had no effect whatsoever on Emberton. He failed to respond in writing to the motion to transfer, or even to make an appearance at the hearing on the motion.
Those cases which have applied the estoppel theory and thereby waive statutory filing periods have done so where the voluntary actions of the defendant have indicated an intent to submit the matter to trial on the merits. Thus, in Synanon Foundation, Inc. v. County of Marin (1982) 133 Cal.App.3d 607, 609 [184 Cal.Rptr. 129], estoppel was applied to bar dismissal under Revenue and Taxation Code section 5147, where the defendants filed an answer, answered interrogatories, complied with requests to produce, permitted filing of an at-issue memorandum and arranging of a trial setting conference, and filed their motion to dismiss two years after it was available.
Emberton’s observation that County filed its dismissal motion two months after it could have done so does not strengthen his case. The two-month period cannot be said as a matter of law to be unreasonable. Moreover, even when viewed in combination with the filing of the request to transfer, there simply is no evidentiary support for the allegation County intended to proceed to trial or lull Emberton into believing it would.
Disposition
The judgment is affirmed.
Work, Acting P. J., and Butler, J., concurred.
Appellants’ petition for review by the Supreme Court was denied December 17, 1986.
Assigned by the Chairperson of the Judicial Council.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Section 581a reads in relevant part: “(a) No action heretofore or hereafter commenced by complaint shall be further prosecuted,. . . unless the summons on the complaint is served and return made within three years after the commencement of said action, ...”
Section 583 reads in relevant part: “(a) The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. . . .
“(b) Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.”
Cites, in this corpus
- Ford Motor Co. v. County of Tulare Civ. 7199 · 1983-08-03
- Synanon Foundation, Inc. v. County of Marin Civ. 54270 · 1982-07-07
- St. Louis-San Francisco Railway Co. v. Superior Court Civ. 34663 · 1969-10-10
- Muller v. Coastside County Water District Civ. 18933 · 1960-05-09
- Muller v. Muller Civ. 19074 · 1960-04-18
- Scheas v. Robertson L. A. 21357 · 1951-12-11
- Rand v. Bossen S. F. 17062 · 1945-10-09
- Fontana Land Co. v. Laughlin Docket No. L.A. 7633. · 1926-11-10