The opinion
Filed 6/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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VERIZON CALIFORNIA INC., C083537
Plaintiff and Appellant, (Super. Ct. No.
34201100116029CUMCGDS)
v.
BOARD OF EQUALIZATION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County, Eugene
L. Balonon, Judge. Affirmed.
O’Melveny & Meyers, Luann L. Simmons, Kendall K. Turner and Abby F.
Rudzin, pro hac vice, for Plaintiff and Appellant.
Kerr & Wagstaffe, Wagstaffe, von Loewenfeldt, Busch & Radwick, Michael von
Loewenfeldt and Frank Busch for Defendant and Respondent Board of Equalization.
Brian Wirtz, County Counsel, for Defendant and Respondent County of Placer.
Amy I. Terrible, County Counsel, for Defendant and Respondent County of
Tulare.
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Leroy Smith, County Counsel, and Linda K. Ash, Assistant County Counsel, for
Defendant and Respondent County of Ventura.
Jeffrey S. Blanck, County Counsel, and Scott A. Miles, Senior Deputy Counsel for
Defendant and Respondent County of Humbolt.
Greenberg Traurig, Colin W. Fraser, C. Stephen Davis and Bradley R. Marsh as
Amicus Curiae on behalf of Plaintiff and Appellant.
This is an appeal from the trial court’s judgment granting the State Board of
Equalization’s (Board) motion for summary adjudication of Verizon California Inc.’s
(Verizon) consolidated actions to recover taxes wrongly levied on its California property
for the tax years 2008 through 2012. Verizon argues that the Board should have adopted
the valuations it proposed in its petitions to the Board to reassess its property. The
statutory ground of the actions requires a “dispute” regarding the Board’s assessments of
the property. (Rev. & Tax. Code, § 5148, subd. (a).)1 Finding none we shall affirm the
judgment.
The California Constitution requires that the Board annually assess the fair market
value of telephone company property in California. (Cal. Const., art XIII, § 19; §§ 721,
722.) “[T]he value of the assets of a phone company . . . depends on the [statewide]
interrelation and operation of the entire property as a unit [the unitary value of the
property].” (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th
666, 672.) Taxes based on the assessed values are levied by each county in which the
individual properties making up the unitary property are situated. (§ 745.)
A taxpayer may petition the Board to reassess its property. If the petition is
denied, the taxpayer may file a judicial action to recover taxes wrongly levied on its
1 Section references to an unidentified code are to the Revenue and Taxation Code,
unless otherwise indicated.
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property that arise out of a “dispute” regarding the Board’s assessed valuation. (§ 5148,
subd. (a).) The taxpayer must first pay the taxes levied on the basis of the assessment.
(§ 5148, subd. (g).) A petitioner also may seek agreement with Board staff of a joint
recommendation to the Board for approval of a resolution of any or all issues presented in
a petition. (Cal. Code Regs., tit. 18, § 5325.4.) A joint recommendation must contain “a
statement confirming petitioner’s agreement with such recommendation.” (Ibid.) To
emphasize, the purpose of a “stipulation[]” is to “resolve all or some of the issues” before
the Board, and the petitioner must “confirm[]” its approval of the stipulation. (Id.,
§ 5325, subd. (a).) Although the Board is “not required to adopt [a] recommendation”
involving a confirmed stipulation (id., § 5325.4), if it does it “resolve[s]” the issue
tendered and binds the parties (id., § 5325, subd. (a)).
As relevant to this appeal, Verizon petitioned the Board to reduce its assessments
for the tax years 2008 through 2012. Verizon paid the taxes levied by the counties for
each year based on the Board-assessed values set forth in its petitions. Verizon then
joined with Board staff to seek approval from the Board of joint recommendations to
lower the assessed values of its property set forth in its petitions. The Board approved
the joint recommendations.
Verizon filed actions for refunds for the years 2008 through 2012 arguing that the
Board should have adopted the valuations proposed in its petitions. The trial court
consolidated the actions. The Board moved for summary adjudication of the claims on
the ground the court lacked jurisdiction because in approving the Verizon/Board staff
recommendations for reduced valuations Verizon failed to exhaust its administrative
remedies with respect to the valuations it claimed in its petitions. Verizon answered,
arguing in effect that a petition to the Board for reassessment tendered both the petition
assessed values and the Board reduced valuations.
The trial court granted the motion for summary adjudication of the consolidated
actions based on the Board’s approvals of the parties’ joint recommendations for a
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reduction in assessed valuations. The court said the assessed valuations set forth in
Verizon’s petitions were “modified by agreement of both parties, prior to submission to
the Board for its final decision . . . .” The “agreement” refers to the Board’s procedure by
which the taxpayer “agree[s] [with Board staff] to a joint recommendation [to the
Board]” on a proposed resolution of some or all of the issues presented in a petition,
including valuation. (Cal. Code Regs., tit. 18, § 5325.4.)
On this basis the trial court concluded: “Because of the mutually agreed
recommendation[s] on value, no disputed issues were presented to the Board for [tax
years] 2008 through 2012. In each of those five years, the Board adopted the revised
value that had been jointly recommended by Verizon and [the Board] staff, reducing
Verizon’s tax basis by over $1.1 billion in the aggregate. [¶] . . .Verizon cannot ask the
Board to adopt a jointly presented reduction in value, receive the agreed reduction, and
then turn around and sue for a lower value than it asked the Board to adopt.”
Verizon timely appealed the trial court’s decision.
DISCUSSION
The appeal is from the granting of the Board’s motion for summary adjudication.
A motion for summary adjudication “shall proceed in all procedural respects as a motion
for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) “The purpose of a
summary judgment proceeding is to permit a party to show that material factual claims
arising from the pleadings need not be tried because they are not in dispute.” (Andalon v.
Superior Court (1984) 162 Cal.App.3d 600, 604-605.) The material factual claims in this
case are whether there are “disputes” regarding the Board’s assessed valuations.
The Board argues that Verizon failed to exhaust its administrative remedies by
failing to tender its assessment claims to the Board. Verizon claims that in agreeing with
the Board staff to reduced assessments it did not waive its claims to the assessed values
requested in its petitions. The Board responded by filing a motion for summary
adjudication based on Verizon’s failure to tender the merits of Verizon’s claims to the
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Board and thus failed to exhaust them. As the Board explains it: “Verizon failed to
exhaust because it ultimately did not present the Board with any dispute over value to
decide; instead it compromised and the Board was asked to award an undisputed, agreed-
upon value, which Verizon then received.”
Verizon misunderstands the effect of the joint recommendations approved by the
Board. We agree that as to each tax year there were two valuations before the Board, but
only in the sense that a jointly-recommended assessed valuation, approved by the Board,
reduced, and therefore replaced, the assessed valuation to which a petition was directed.
Since the petition assessments were replaced by the reduced values agreed to there were
no “disputes” as to assessed valuation as required for an action based on section 5148,
subdivision (a).2
PROCEDURE
Government Code section 15606, subdivision (a) authorizes the Board to
“prescribe rules for its own government and for the transaction of its business.” The rules
are set out in title 18 California Code of Regulations. Pursuant to these rules the Board
assesses the values of the unitary property, “notif[ies] the state assessees of the values
determined by the Board[,] and . . . [notifies the assessees] that a petition for
reassessment of the unitary property” may be filed and specifies the filing dates. (Cal.
Code Regs., tit. 18, § 904, subd. (a).) The petition must set forth “the precise elements of
the Board’s valuation . . . that petitioner is contesting,” and “[s]tate the facts relied upon
to support the requested change.” (Id., § 5323.4.)
2 Notwithstanding, Verizon is entitled to recover the difference between the taxes
paid on the basis of the Board-assessed valuations set forth in its petitions and the taxes
that would have been levied on the basis of the reduced valuations set forth in the joint
recommendations approved by the Board.
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This case turns on the simple wording of title 18 California Code of Regulations
section 5325.4, the remedy actually exhausted in this case.3 It provides that a petitioner
and the State Assessed Properties Division may “agree[] to a joint recommendation on a
proposed resolution of all issues presented in the petition,” including assessed valuations.
Although the Board is not compelled to agree with a recommendation agreed to by the
petitioner for resolution of an issue, if the Board does agree the parties to the “resolution”
are bound by it.
The governing statutes require that a response to a motion for summary
adjudication “shall include a separate statement that responds to each of the material facts
contended by the moving party to be undisputed.” (Code of Civ. Proc., § 437c, subd.
(b)(3).) “Each material fact contended by the opposing party to be disputed shall be
followed by a reference to the supporting evidence.” (Ibid.) Verizon did none of these
things. Verizon did not respond to the Board’s statement of undisputed facts, as required
by Code of Civil Procedure section 437c, subdivision (b)(3). But it did file numerous
documents claiming there was evidence in them in opposition to the Board’s statement of
undisputed facts. Verizon did not identify the evidence nor relate it to an undisputed fact.
Since this court is not required to search the record for such evidence, the trial court was
entitled to rely on the undisputed facts tendered by the Board. (Mansell v. Board of
3 Title 18 California Code of Regulations section 5325.4 provides, in relevant part:
“With respect to all petitions as to which the petitioner and the State-Assessed Properties
Division have agreed to a joint recommendation on a proposed resolution of all issues
presented in the petition before the petitioner’s appeals conference or petitioner’s reply
brief, if no appeals conference is scheduled, the Legal Unit will prepare and submit the
State-Assessed Properties Division’s Recommendation for Property Tax Petition . . . to
the Chief of Board Proceedings. This recommendation will include a brief analysis of the
petition . . . as well as a statement confirming petitioner’s agreement with such
recommendation. The Board, however, is not required to adopt the recommendation or
take the recommended Board action.” (Italics added.)
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Administration (1994) 30 Cal.App.4th 539, 545 [“We are not required to search the
record to ascertain whether it contains support for [appellant’s] contentions.”].)
Further, “[i]f requested by petitioner, the State-Assessed Properties Division [of
the Board] and the Legal Unit will meet with the petitioner . . . . to exchange relevant
information and evidence, identify issues, and, if possible, enter into stipulations to
resolve all or some of the issues.” (Cal. Code Regs., tit. 18, § 5325, subd. (a).) The
parties may “agree[] to a joint recommendation on a proposed resolution of all issues
presented in the petition” and if “no appeals conference is scheduled” present it to the
Board. (Id., § 5325.4.) “This recommendation will include a brief analysis of the
petition and the related supporting documents . . . as well as a statement confirming
petitioner’s agreement with such recommendation.” (Ibid., italics added.)
Although a petitioner is not required to engage in discussions leading to a joint
recommendation, it may, and although the Board is “not required to adopt [a]
recommendation[] or take the recommended Board action,” it may, in which case the
joint recommendation, agreed to by both petitioner and the Board, may, as provided by
title 18 California Code of Regulations section 5325, “resolve all or some of the issues,”
including valuation, tendered in the petition. It is in this manner that the Board approval
of a recommendation “resolve[s] . . . issues” tendered in the petition. As the Board
explained: “For tax years 2008-2012 . . . the Board was not presented with a dispute to
resolve, but instead with a new value agreed to by both [Board] staff and Verizon.” The
approval by the Board of all of the issues submitted for approval is binding on the parties
to the submission.4
4 The confusion arises because it is not a contractual agreement between the parties
that binds Verizon but the submittal to and approval by the Board of the joint submission.
Thus when the assessee joins in and agrees to a submission to the Board and the Board
approves the submission it is the agreement between the assessee and the Board that is
binding on the assessee. That agreement precludes the assessee from claiming there is a
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For example, the undisputed, material facts for the tax year 2008 show the Board
assessed Verizon’s unitary property at $3,920,700,000. Verizon petitioned the Board to
reassess the property at $3,167,262,523, but then “agreed” with the Board staff to present
the Board with a jointly recommended unitary value of $3,595,900,000. Verizon’s
representative confirmed the agreement stating: “On behalf of Verizon Communications
Inc. I concur with the write up and summary of our discussion and agreement to a revised
2008 . . . value indicator for Verizon Communications of $3,595,900,000.” The Board
then was informed that the staff of the “Appeals Division recommends that the Board
partially grant the petition for reassessment and adopt the revised value recommended by
respondent and agreed upon by petitioner, reducing the 2008 Board adopted-adopted
unitary value of $3,920,700,000 to $3,595,900,000.” (Italics added.) Accordingly,
undisputed fact No. 19 states: “On December 16, 2008, the Board granted Verizon’s
petition for reassessment in part5 and reduced the Board-adopted 2008 unitary value of
$3,920,700,000 to $3,595,900,000.” Similarly, no disputed issues of valuation were
presented to the Board for the tax years 2009 through 2012.
Since, for 2008, Verizon agreed with the Board’s reduction of its assessed
valuation of $3,920,700,000, upon which its petition was based, to the recommended
value of $3,595,900,000, there was no “dispute” as to valuation upon which to base a
section 5148 complaint.
It is undisputed that for each tax year from 2008 through 2012 the Board adopted
the Verizon/Board staff joint recommendation on valuation. Accordingly, since Verizon
dispute between them that is a predicate for an action pursuant to section 5148,
subdivision (a).
5 The reference to “in part” reflects the fact that the Board did not grant the whole,
but only a part of the reduced valuations initially sought by Verizon.
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agreed to the reduced assessments, set forth in the joint recommendations and approved
by the Board, Verizon had no “disputes” with the Board regarding assessed valuation.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
/s/
BLEASE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
RENNER, J.
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