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Ashlan Park Center LLC v. Crow

California Court of Appeals, Fifth District

February 2, 2015

ASHLAN PARK CENTER LLC, Plaintiff and Appellant,
v.
VICKI CROW, as Treasurer-Tax Collector, etc., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County No. 13CECG02876. Jeffrey Y. Hamilton, Jr., Judge.

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[Copyrighted Material Omitted]

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COUNSEL

Stoel Rives, Michael N. Mills and Juliet H. Cho for Plaintiff and Appellant.

Daniel C. Cederborg, County Counsel, and Michael R. Linden, Deputy County Counsel for Defendant and Respondent.

OPINION

FRANSON, J.

Appellant appeals from a judgment entered after the trial court sustained respondent’s demurrer to appellant’s amended petition for writ of mandate without leave to amend. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner filed an amended petition for writ of mandate, alleging it is the owner of a shopping center purchased in March of 2013. It purchased the property from five limited liability companies that owned the property as tenants in common (TICs). The prior owners purchased the property in 2006; in 2008, the nation’s financial market collapsed resulting in a recession. Because of the recession, when some of the shopping center’s tenants did not renew their leases or were unable to open their businesses in the shopping center, the spaces remained vacant. The relationship of the prior owners was governed by a tenancy in common agreement, which provided that each TIC was responsible for a pro rata share of the operating costs, including property

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taxes. If the income from the property was insufficient to cover operating costs, the managing TIC was responsible for calling for capital from each TIC. When the managing TIC did so, however, the other TICs, which were single asset entities, were prevented by limited capital from contributing to the capital calls. The TICs were unable to meet the financial obligations of the property and were unable to pay the property taxes beginning in 2010. When petitioner purchased the property, taxes assessed for fiscal years 2010-2011, 2011-2012, and 2012-2013 were unpaid and delinquent. Petitioner assumed the liability for the unpaid property taxes.

As of September 11, 2013, delinquent taxes and penalties owed on the property totaled approximately $568, 627.94. In August 2013, petitioner requested that respondent tax collector cancel the penalties pursuant to Revenue and Taxation Code section 4985.2, subdivision (a).[1] The statute provides that a penalty resulting from failure to make a timely property tax payment may be canceled by the tax collector if the failure “is due to reasonable cause and circumstances beyond the taxpayer’s control, and occurred notwithstanding the exercise of ordinary care in the absence of willful neglect, provided the principal payment for the proper amount of the tax due is made no later than June 30 of the fourth fiscal year following the fiscal year in which the tax became delinquent.” (§ 4985.2, subd. (a).)

Respondent determined only $2, 670.10 of the $142, 521.68 in outstanding penalties should be waived. This amount represented the penalty for the second installment of taxes due in the 2012-2013 fiscal year. This penalty was cancelled because respondent’s office incorrectly mailed the tax statement for that installment to the previous owners’ address. Regarding the remainder of the penalties, respondent stated there were no provisions in law for waiver of late penalties for other fiscal years. Petitioner met with respondent and others and explained the basis for the request for cancellation of penalties, and indicated it was willing to pay the underlying taxes. Respondent again denied petitioner’s request for cancellation.

Respondent demurred to the amended petition. The trial court sustained the demurrer without leave to amend, concluding a writ of mandate was not the appropriate remedy for the tax collector’s refusal to cancel the penalties; payment of the tax was a prerequisite to cancellation of the penalties and the taxes had not been paid; and the facts alleged did not satisfy the ...


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