# Petition for Writ of Certiorari — Hillcrest Development v. County of Riverside

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1262

## Text

Supreme Court, 0.3.
( FILED

991708 APR 2 4200

No. OFFICE GE THE CLERK

IN THE SUPREME COURT
OF THE
UNITED STATES

October Term, 1999

HILLCREST DEVELOPMENT,
a California Limited Partnership,
Petitioner,

VS.

COUNTY OF RIVERSIDE, a Public Entity;
R. WAYNE WATTS, Treasurer-Tax Collector
of the County of Riverside;
N.R.L.L., INC., a California Corporation;
SPAN, L.L.C., a Limited Liability Company,
Respondents.

Petition for Writ of Certiorari
To The Court of Appeal of California
Fourth District, Division Two

PETITION FOR WRIT OF CERTIORARI

*RONALD K. VAN WERT, ESQ.
A Member of Ronald K. Van Wert,
A Professional Corporation

3200 Park Center Drive, Suite 1110
Costa Mesa, California 92626
Telephone: (714) 546-2400
*Counsel of Record for Petitioner
Hillcrest Development, a
California Limited Partnership

a

QUESTIONS PRESENTED FOR REVIEW

WHERE NO ANTICIPATORY TAX RELIEF IS
SOUGHT BY A PROPERTY OWNER, ARE A
MUNICIPALITY AND ITS TAX COLLECTOR WHO
DEPRIVED THE PROPERTY OWNER OF HIS REAL
PROPERTY WITHOUT DUE PROCESS WHOLLY
IMMUNE FROM SUIT UNDER 42 U.S.C. §1983 AS THE
RESULT OF THE “PRINCIPLE OF COMITY” AND Lies
“TAX INJUNCTION ACT”.

ARE PRIVATE PERSONS WHO PARTICIPATE
WITH A MUNICIPALITY AND ITS TAX COLLECTOR IN
THE DEPRIVATION OF REAL PROPERTY IN VIOLATION
OF THE DUE PROCESS CLAUSE WHOLLY IMMUNE
FROM SUIT UNDER 42 U.S.C. §1983 AS A RESULT OF
THE “PRINCIPLE OF COMITY” AND THE “TAX
INJUNCTION ACT”.

(i)

LIST OF PARTIES TO THE PROCEEDINGS
IN THE COURT BELOW

The caption of the case in this Court contains the names
of all parties to the proceedings in the Court below. Rule 29.6
of the Rules of the Supreme Court does not apply in that the
Petitioner is a limited partnership.

(ii)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .......... (1)
LIST OF PARTIES TO THE PROCEEDINGS

oe). fee 8 3 204, Se eee (i1)
ME GAMUEENEESD oo cee bebe ke cee ea ta es ss (111)
pp Ba ig yg 848s |. Sr (vi)
PETITION FOR WRIT OF CERTIORARI ............ ]
CITATIONS OF THE OFFICIAL

AND UNOFFICIAL REPORTS ............... 2
STATEMENT OF JURISDICTION .................. 3

CONSTITUTIONAL PROVISIONS, TREATISES,
STATUTES, RULES AND REGULATIONS

EE bed oid iséee Cae eee ke anne ohh ees 3 4
UP Pert e OO ERR CADE 5 nce ce cece es esens 6
:. PEEP EIUIE cd cece en sacduseecne 6

ps STAGE AS TO WHEN THE FEDERAL
QUESTIONS SOUGHT TO BE
REVIEWED WERE RAISED AND HOW
THEY WERE PASSED UPON BY THE
EE a level ee hanga sane aan eue es 7

cS STATEMENT GF FACTS ..46.52042%.. 8

4. ARGUMENT

A. Summary of Reasons for Review by
the Supreme Court ............. 1]

l.

Conflict with Decisions of

This Court and with

Decisions of the United

States Courts of Appeal ... 11

The Unpublished Decision
May Still Be Used by the

~ Tax Collector or the County

of Riverside to Curtail Any
Future Proceeding or Set

Up a Defense of
Reasonableness ......... 1]

In Order to Ensure National
Uniformity, Only this Court
Should Determine if Agencies
Involved in Tax Collection
Should be Entirely Immune
from Suit Under the Civil
|. Seer res 12

(iv)

B. This Court Should Grant Review
Because the Court of Appeal Has
Created Complete Immunity From a
Civil Rights Suit for the County
of Riverside and Its Officials in All
Tax Related Cases Which is
Contrary to a Decided Case by This
a ccaxnwh cee eeieeaees 13

.. Any Expansion of the Principles
Established in Fair Assessment and
National Private Truck Should Only
Be Done by This Court Because of
the Importance of Having National
Uniformity in Civil Rights Actions 14

D. The Expansion of the “Tax
Injunction Act” and the Principle of
Comity by the California Court of
Appeal is Unwarranted and is
Contrary to Decisions of This
CS vhs bec eee eres aes 14

E. Review is Necessary Because the
California Court of Appeal has
Extended the Principle of Comity
and Anti-Injunction Act Even to the E
Non-Governmental Defendants ... 16

5. et eR Serre rrer Tr rrr Tr 17

(v)

TABLE OF AUTHORITIES
Federal Cases

California v. Grace Brethren Church
G57 US. FFU IGED ov vce cer ck csesnsneses 11, 16

BSS UB. DOT LUG IO) occ nace cguvevanecces 15, 16

Ww - Vv

~yisih By fi. | rrr eye er 16

Dows v. City of Chicago
CUR fs) y, Brey rr 16

F.E. Trotter, Inc v. Watkins
069 F.2d 1312 CO" Cer. 19GP) «5 caves ca sscces 16

454.U.S. TOD CISS]) «occ face cence 6, 7,10, 12-14

Harlow vy. Fitzgerald
457 U.S. GOO CISEZ) oon cet onesvcuancesecenuns 16

Jefferson County, Ala. v. Acker
§27-U.S. 423, 119 S.Ct. 2069 (1999) ........ 11,14

Keleher v. New England Telephone & Telegraph Co
947 F.2d $47 (24 Cin. 1991)... cnc ccevenes 13,15

(vi)

Leatherman v. Tarrant County Narcotics

S07 US. 163(1993) ccna csscec sees 11,13
mM ST US. 922 (1982) noone ccc vev csc ceesee r
M ee

a ee seas gre 9, 11,17

SISUS $82 (1998) 2s... 67,1314 16
eo

Pe Sls ET so sk ea ee ckee neces 7, 10, 14
Constitut
United States Constitution, Section | of

pe ree re ere eer re 4
Federal Statutes and Rules
28 United States Code §1257(a) ... 2... ccc cece eee 3
ee ME TIE TE BU OGE 6o nee kk Ki ea ewes cause 3 5
42 United States Code §1983............. 4,6, 7,9, 10, 16

OE TE TO ENE ow oa no hhc dd ace wens eas 3

De CUE TNO BIG) kc oo ook ce ekss cr incoxs 3
Supreme Court Rule 29.6... .. Pele fC eee ue ease aOR (i1)
S S i Rul

California Revenue and Taxation Code §3725......... 7,9
California Rules of Court, Rule 977(b) ................ 12
Code of Civil Procedure §340, subd 3 ................ 10
a ea =

2 California Civil Appellate Practice, §22.7
(California Continuing Education of the Bar, 1999) 12

9 Witkin, California Procedure, Appeal §716
PU oes eda vae beter eure tied oe 12

(viil)

PETITION FOR WRIT OF CERTIORARI
To The Court of Appeal of California
Fourth District, Division Two

Petitioner, HILLCREST DEVELOPMENT (“Hillcrest
Development”), respectfully prays that a writ of certiorari issue
to review the judgment of the California Court of Appeal, for
the Fourth District, Division Two, entered in the above-entitled
case on November 9, 1999 and in which discretionary review
was denied by the California Supreme Court on February 2,
2000.

CITATIONS OF THE OFFICIAL
AND UNOFFICIAL REPORTS

There are no official or unofficial reports. The Opinion
of the Court of Appeal of California is set forth in its entirety in
the Appendix.

STATEMENT OF JURISDICTION

On February 2, 2000, the California Supreme Court

denied discretionary review of the judgment of the Court of
Appeal which had been entered on November 9, 1999. No
rehearing was requested and no extension of time to file the
Petition has been sought.
Upon This Court to Review on a Writ of Certiorari the
Judgment.

The statutory provision conferring jurisdiction on this
Court jurisdiction to review on a Writ of Certiorari the judgment
and orders in question is 28 U.S.C. §1257(a).

3. Compliance With Rule 29.4(b) or (c) of the
Rules of the Supreme Court

Notice is not required under Rule 29.4(b) or 29.4(c) of
the Rules of the Supreme Court.

CONSTITUTIONAL PROVISIONS, TREATISES,
STATUTES, RULES AND REGULATIONS INVOLVED

Section 1 of AMENDMENT XIV to the United States —
Constitution:
“Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State, wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
42 U.S.C. §1983

“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress, except that
in any action brought against a judicial officer
for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated
or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of

4

Se mall

Columbia shall be considered to be a statute of
the District of Columbia.”
28 U.S.C. § 1341

“The district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any
tax under State law where a plain, speedy and
efficient remedy may be had in the courts of
such State.”

STATEMENT OF THE CASE
1. INTRODUCTION

Without providing Hillcrest Development with notice of
the tax sale as required by the Due Process Clause, Respondents
County of Riverside, a municipality (“County of Riverside”),
and R. Wayne Watts, its tax collector (“Tax Collector”), sold
Hillcrest Development's million dollar real property for about
15% of its value at the tax sale to Respondent N.R.L.L., Inc. As
a result of the tax sale, all delinquent property taxes were paid.
Within a month of discovering that its property had been sold,
Hillcrest Development sought to recover the property through
a civil rights action brought under the provisions of 42 U.S.C.
§1983. It did not seek any anticipatory relief as to any tax or to
stop, enjoin, suspend or restrain the collection of taxes. It did
not question the validity of the tax that was collected or its
amount. Regardless, the California Court of Appeal ruled that
the Respondents are wholly immune from a suit under 42
U.S.C. §1983 as a result of this Court's decisions in Fair
Assessment in Real Estate Assn. v. McNary, 454 U.S. 100
(1981) and National Private Truck Council, Inc. v, Oklahoma
Tax Commissioner, 515 U.S. 582 (1995).

As a result of the California Court of Appeal’s decision,
Hillcrest Development and similarly situated property owners
in the County of Riverside have no remedy for the failure of the
County of Riverside and the Tax Collector to provide notice as
required by the Due Process Clause prior to the deprivation of
their property. ;

2. STAGE AS TO WHEN THE FEDERAL QUESTIONS
SOUGHT TO BE REVIEWED WERE RAISED AND
HOW THEY WERE PASSED UPON BY THE
COURTS

The federal questions were first raised in the Complaint
filed by Hillcrest Development when it sought relief under the
Civil Rights Act [42 U.S.C. §1983] to invalidate the tax deed or
for damages as a result of the violation of Hillcrest
Development’s right to Due Process. The defendants sought
summary judgment based upon a claim that the action was
barred by Section 3725 of the California Revenue and Taxation
Code. Hillcrest asserted that the applicable statute of limitations
was the California personal injury statute based upon this
Court’s determination in Wilson v. Garcia, 471 U.S. 261 (1985).
The places in the record where the matters appear are the
Complaint filed by Hillcrest Development, the Motion for
Summary Judgment filed by the County of Riverside and Tax
Collector, the Opposition to the Motion filed by Hillcrest
Development, and the Order granting the Motion for Summary
Judgment.

On appeal, and in their Brief, the County of Riverside
and the third party defendants raised for the first time the claim

that this Court's decision in Fair Assessment, supra, and
National Private Truck, supra, barred a §1983 suit against a

municipality and its Tax Collector as a matter of law. The
Court of Appeal determined that, though Hillcrest Development
was correct as to the applicable statute of limitations, the §1983
action was nevertheless barred by the principles established by
this Court in Fair Assessment and National Private Truck. The
place where the determination was made by the Court of Appeal
is at pages A-19 - A-22 [Appendix] of its Opinion.

The federal questions were raised again in Hillcrest
Development’s Petition for Review in the California Supreme
Court. which Petition was summarily denied.

3. STATEMENT OF FACTS

The Statement of Facts is based upon undisputed facts
or facts accepted as true for purposes of deciding the Motion for
Summary Judgment brought by the Tax Collector and the
County of Riverside.

On March 26, 1996, and without actual notice to
Petitioner Hillcrest Development, the Tax Collector sold
Hillcrest Development's tax defaulted real property to N.R.L.L.
The County of Riverside and the Tax Collector failed to make
a reasonable effort to obtain either Hillcrest Development’s last
known address or even the phone number and address of its
general partner (“General Partner”), whose name and county of
residence were known to the Tax Collector, as well as the
County of Riverside, and whose phone number and address
were listed in the phone directory of the County of residence,
which County (Orange) adjoined the County of Riverside. The
fictitious business statement filed by Hillcrest Development in
Orange County also listed its correct address and phone number.
Other information was also in the possession of the County of
Riverside or the Tax Collector which would have enabled either
of them to ascertain the current address of Hillcrest
Development, its General Partner, or counsel for Hillcrest
Development.

In September of 1997, the General Partner discovered
a “for sale” sign on Hillcrest Development’s real property,
which was located in the City of Elsinore, County of Riverside.
Upon calling the number on the “for sale” sign, the General
Partner learned that N.R.L.L. had purchased the real property

8

ene a ay VE le aD EERE ie Mc RN I AM AIO ie hal OD PLEIN

for about 15% of its million dollar value at the tax sale in 1996.
The General Partner immediately contacted the representative
of the Tax Collector, informed him that neither Hillcrest
Development nor the General Partner had received any notice of
the tax sale, and requested that the tax sale be rescinded and that
its real property be returned. When the Tax Collector refused to
take any action and within one month of discovering the “for
sale” sign, Hillcrest Development filed a civil rights action
under Section 1983 of Title 42 of the United States Code to set
aside the Tax Deed, quiet title, and for damages. The action was
based upon the requirement established by this Court in
Mennonite Board of Missions v, Adams, 462 U.S. 791, 800
(1983), that actual notice be provided of the tax sale by the
taxing authorities, prior to depriving the interested party of his
property rights, even if an interested party is in default with
respect to property taxes and should have protected itself, so
long as the interested party's address is “reasonably
ascertainable” by the taxing authorities. The civil rights action
of Hillcrest Development named as defendants the Tax
Collector, the County of Riverside, and the purchasers of the
real property.

In its civil rights action, Hillcrest Development did not
seek a refund of any tax and did not seek to enjoin, suspend or
restrain the collection of any tax.

After the answer was filed by the Respondents, the
County of Riverside and Tax Collector filed a Motion for
Summary Judgment based upon the assertion that, regardless of
the conduct of the Tax Collector and regardless of whether a
property owner's Due Process rights were violated, a property
owner is time barred from bringing any type of action to
invalidate the Tax Deed or recover damages unless brought
within one year of the execution of a tax deed. This assertion
was based upon Section 3725 of the California Revenue &

9

Taxation Code. None of the Defendants asserted in the Motion
for Summary Judgment that the action was precluded by the
principle of comity or by the “Tax Injunction Act”.

Though Hillcrest Development asserted that the
applicable statute of limitations for the civil rights action is the
personal injury statute or Section 340, subdivision 3, of the
Code of Civil Procedure as a result of this Court’s decision in
Wilson v. Garcia, 471 U.S. 261 (1985), the trial court disagreed,
and granted the Motion and dismissed the action as to all of the
defendants. An appeal was timely filed.

On appeal, the Tax Collector and County of Riverside
raised for the first time their assertion that “section 1983 does
not afford a remedy in state tax cases”. Page A-17, Appendix.

Though finding that the trial court committed error and
that Respondents N.R.L.L and SPAN's claim that Wilson
requires the Court to look to the most analogous statute of
limitations “grossly misrepresents Wilson,” it stated that the
error was harmless in that a civil rights action could not be
maintained in a tax case because of the potential “for a chilling
effect on state tax administration that was a motivating concern
in Fair Assessment”. Page A-22, Appendix. It also concluded
that, since the California tax scheme allowed for a refund of
taxes, the “adequate remedy” exception to the principle of
comity and the “Tax Injunction Act” did not apply. Page A-22,
Appendix.

10

The California Court of Appeal has decided important
federal questions in a way that conflict with decisions of the
United States Courts of Appeals and with relevant decisions of
this Court. By denying a remedy to a property owner who has
been deprived of his property without notice, it has rendered
ineffective the notice requirement in Mennonite, supra. It has
misapplied the “Tax Injunction Act” (Jefferson County, Ala. v.
Acker, 527 U.S. 423, 119 S.Ct. 2069, 2076 (1999)). It has
changed the definitional meaning of “adequate remedy” in
considering whether the exception to the “Tax Injunction Act”
and principle of comity apply. See California v. Grace Brethren
Church, 457 U.S. 393, 411-412 (1982). The Court of Appeal
creates an absolute immunity not only for a county’s tax
collector, but also the municipality, which is contrary to this
Court’s decision in

Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993).

7 The Unpublished Decision May Still E
Used by the Tax Coll he C PRiversid Curtail
Any Future Proceeding or Set Up a Defense of Reasonableness

Though the case was a case of first impression, and
Hillcrest Development requested its publication in writing and

at oral argument, the Court of Appeal issued its final Opinion as
“Not to Be Published.” In California, an unpublished opinion

1]

has virtually no chance of being reviewed by the C alifornia
Supreme Court. See 2 California Civil Appellate Practice,
§22.7 (California Continuing Education of the Bar, 1999). The
reason is because the case generally does not have precedential
value. However, there are exceptions. Rule 977(b), California
Rules of Court; 9 Witkin, California Procedure, Appeal §716
(4" ed. 1996). If another aggrieved property owner brings a
civil rights action against the Tax Collector and County of
Riverside. there can be no doubt that the Tax Collector would
show the litigant the prior determination of the same Court of
Appeal that would hear his appeal. The Tax C ollector may also
assert it as a basis for the “reasonableness” of his conduct in a
subsequent civil rights case where he could assert qualified
immunity. .

Though the Opinion was not published, the case
received notoriety in that it was reported in a newspaper serving
Riverside County because of the nature of the action and the
naming of the Tax Collector and County of Riverside as
defendants.

3. ip Ord E Nasional. Uniformni
Only this Court Should Determine if Agencies Involved in Lax 4 he Entiealy 3 ; Suit Under 1)
“ivil Rig!

Because of the recognized need by this Court to ensure
uniformity in civil rights action and to reduce expensive
litigation and uncertainty, it should be this Court who
establishes any rule which exempts an entire class of state or
municipal employees from liability under the Civil Rights Act.

There has been an ever increasing effort by the States to

use this Court’s decision in Fair Assessment as a basis to ban
any action either in federal court or state court when such action

12

a

might have a tangential effect on the collection of taxes. See.
e.g.. Keleher v. New England Telephone & Telegraph Co., 947
F.2d 547 (2d Cir. 1991).

Tax Related Cases Which is C Decided Case by Thi

In Leatherman v, Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 166 (1993), Chief Justice
Reinquist stated in a unanimous decision:

“(U)nlike various government officials.

municipalities do not enjoy immunity from suit--

either absolute or qualified--under §1983. In

short, a municipality can be sued under §1983,

but it cannot be held liable unless a municipal

policy or custom caused the constitutional

injury.”

The California Court of Appeal concluded in essence
that this Court created a separate immunity in Fair Assessment
and National Private Truck for the County and its Tax Collector
merely because the constitutional injury occurred in connection
with the tax process, i.e., the municipality and its tax collector
cannot be sued under any circumstance because recovery by an
aggrieved property owner may have a chilling effect on the
collection process. This conclusion, if allowed to stand, will
shield a municipality and its tax collector from any claim that
arises under the Constitution merely because they are involved
in the process of raising taxes.

The need for national uniformity in civil rights actions
was recognized by this Court in Wilson v, Garcia. supra, with
respect to the issue of the applicable statute of limitations. Any
expansion of the limited doctrine established in Fair
Assessment. supra and National Private Truck, supra. should
only be accomplished by this Court in order that there is
national uniformity with respect to civil rights actions so that
both uncertainty and time consuming litigation are eliminated.

The County of Riverside has received full payment of
the property taxes, has not been sued for a repayment of the
taxes. and Hillcrest Development's civil rights action was not a
disguised effort on the part of Hillcrest Development to seek
review of the constitutionality of a tax without payment. It is a
suit resulting solely from the damages attributable to the
deprivation of Hillcrest Development’s property in violation of
the Due Process Clause. The County of Riverside or the Tax
Collector cannot avoid suit by asserting that because of the
tangential effect on their taxing activity that the principle of
comity and “Tax Injunction Act” precludes any relief.

In June of 1999, this Court in Jefferson County, Ala, v.
Acker, 527 U.S. 423, 119 S.Ct. 2069, 2076 (1999) explained the
meaning and purpose of “The Tax Injunction Act” [“Act”]. It

stated, supra:

14

3
|
;

“By its terms, the Act bars anticipatory relief,

Suits to stop (‘enjoin, suspend or restrain’) the

collection of taxes.” [emphasis added]

This Court also stated that the conclusion of the Second
Circuit in the 1991 case of K w Eng
& Telegraph, 947 F.2d 547, 551 as to the intent of Congress in
passing the Act was wrong. Id. In Keleher, supra, the Court of
- Appeals stated that the “Tax Injunction Act” “creates an absolute
jurisdictional bar to federal involvement in state and local
revenue collection schemes, and that, as a result, a federal court
may not play any role at all in the tax enforcement efforts of
state or local governments.” The conclusion reached in Keleher,
Supra, was in essence adopted by the California Court of Appeal
as to a civil rights action in the state court. Though Hillcrest
Development had no other way to recover its property or
damages for the unlawful taking of its property, the California
Court of Appeal reasoned that, since Hillcrest Development
could file a refund, it had an “adequate remedy at law”. It did
not and could not explain how such refund, even if sought,
would compensate Hillcrest Development for the injury
resulting from the violation of its Due Process rights or how it
was plain or complete. See, Carey v. Piphus, 435 U.S. 247, 259
(1978) (“the rules governing compensation for injuries caused
by the deprivation of constitutional rights should be tailored to
the interests protected by the particular right in question”). As
to the Court of Appeal’s conclusion ( page A-22. Appendix)
that Hillcrest Development did not claim that the tax refund
scheme was inadequate, such conclusion is nonsensical.
Hillcrest Development brought a civil rights action under
federal law because California does not provide for relief. The
adequacy of the tax refund scheme is simply irrelevant to a post
collection case or a case not involving the collection of taxes.

Even where the action is one to enjoin, restrain, or
suspend, neither the “Tax Injunction Act” nor the principle of
comity preclude a taxpayer's action where the state court
remedy is inadequate, i.e., the constitutional issues will not be
given a full hearing (California v. Grace Brethren Church, 457
U.S. 393, 411-412 (1982)), where the damages are irreparable,
or where there is a cloud on title. Dows v, City of Chicago, 78
U.S. 108, 110 (1870); National Private Truck Council v.
Oklahoma Tax Commissioner, 515 U.S. 582, 591 (ftn. 6)

(1995). The damages are irreparable and there is a cloud on
title.

The issue is not whether a state statute is constitutionally
valid but rather whether the municipality and its official's
conduct violated established constitutional standards. This is
precisely the purpose of section 1983 suits. See Harlow v.
Fitzgerald. 457 U.S. 800, 818 (1982). The appropriate remedy
for deprivation of a liberty and/or property interest without Due
Process is to order the process that was due and any attendant
damages which directly result from the failure to give the proper

notice. Carey v. Piphus, supra.

Private parties acting under color of state law are not
entitled to the qualified immunity defense. Crawford-El v.
Britton, 523 U.S. 574, 590 (ftn. 13 (1998)); E.E. Trotter, Inc v.
Watkins, 869 F.2d 1312, 1318-1319 (9" Cir. 1989). They are
subject to a civil rights action when they participate in a state
action which results in the deprivation of the property of

another. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 942
(1982).

16

The right to sue a purchaser in order to quiet title as a
result of the failure of the government to give notice or improper

notice was recognized in Mennonite, supra.
5. CONCLUSION

Review is appropriate because of the necessity of
resolving important questions of law, because of the effect of
the Court of Appeal Opinion on the Tax Collector of a major
County in California, which established that his actions in
providing constitutionally mandated notice are not subject to
judicial review under the Civil Rights Act, and because of the
need to secure uniformity of decisions in civil rights actions.

Dated: April 14, 2000

se ok SOT

RONALD K. VAN WERT, A
Member of Ronald K. Van Wert,
A Professional Corporation,

Counsel of Record for Petitioner
HILLCREST DEVELOPMENT

APPENDIX

FILED
NOV 9 1999

Court of Appeal Fourth District

COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA

HILLCREST E023512
DEVELOPMENT,
(Super.Ct.No. 303035)
Plaintiff and
Appellant, OPINION

V.

COUNTY OF RIVERSIDE
et al...

Defendants and
Respondents.

APPEAL from the Superior Court of Riverside County.
Richard G. Van Frank, Judge. Affirmed.

Ronald K. Van Wert for Plaintiff and Appellant.

William C. Katzenstein, County Counsel, and
Dorothy L. Honn, Deputy County Counsel, for Defendants and

Respondent County of Riverside and R. Wayne Watts,
Treasurer-Tax Collector of the County of Riverside.

Reid & Hellyer, James J. Manning, Jr., and Michael G.
Kerbs for Defendants and Respondents N.R.L.L., Inc., and
SPAN, L.L.C.

Plaintiff Hillcrest Development (Hillcrest) owned land
worth over $1 million. However, it failed to pay property taxes
on the land for at least six years inarow. Asa result, the land
was sold for taxes; the purchaser paid only $162,000 for it.

About three years before the sale, Hillcrest moved. It
did not notify the tax collector of its change of address. When
it came time to send notice of the sale, the tax collector tried to
find Hillcrest's current address through Riverside County and
Department of Motor Vehicle (DMV) zecords, as well as
Riverside and Orange County telephone directories, but was
unable to do so. The tax collector therefore sent notice of the
sale to three of Hillcrest's former addresses. Hillcrest never
received actual notice. Even though Hillcrest's former addresses
were all in Orange County, the tax collector failed to check
Orange County fictitious business name filings; doing so would
have revealed Hillcrest's current address. The tax collector also
failed to make inquiries regarding Hillcrest's general partner,
even though his name was listed on numerous documents
concerning Hillcrest.

Hillcrest filed this action to set aside the tax sale. The
trial court granted summary judgment against Hillcrest on the
ground that the applicable statute of limitations was Revenue
and Taxation Code section 3725, which had run. In this appeal,
Hillcrest argues (1) defendants were estopped to assert the
statute of limitations, and (2) Hillcrest's complaint asserted
federal civil rights causes of action (42 U.S.C. § 1983), and
therefore the applicable statute of limitations was Code of Civil
Procedure section 340, subdivision (3), which had not run.

A-2

To the extent that Hillcrest's complaint arises under state
law, the trial court was correct. Revenue and Taxation Code
section 3725 was the applicable statute of limitations; it had run;
and Hillcrest failed to raise a triable issue of fact regarding
estoppel.

To the extent that Hillcrest's complaint arises under 42
United States Code section 1983 (section 1983), the trial court
erred. Code of Civil Procedure section 340, subdivision (3),
was the applicable statute of limitations. There was at least a
triable issue of fact with respect to whether it had run. The
error, however, was harmless. Defendants were entitled to
summary judgment in any event because section 1983 does not
afford a remedy for allegedly unconstitutional state taxation.

I
FACTUAL BACKGROUND

The following facts are taken from the papers filed in
support of and in opposition to defendants’ motion for summary
adjudication. Consistent with the applicable standard of review,
we view the evidence in the light most favorable to the party
opposing the motion — in this case, to Hillcrest. (A bou-Jaoude
v. British Airways (1991) 228 Cal.App.3d 1137, 1139.)

Hillcrest is a limited partnership. Paul 7. Salata is
Hillcrest's general partner.

In 1984, Hillcrest acquired certain real property in Lake
Elsinore. It paid taxes on the property only once, in 1988.

In 1984, when Hillcrest purchased the property,
Hillcrest's address was 213 La Jolla Drive, Newport Beach.
This address was listed on the deed. The deed also stated that,
after recording, it was to be sent to Ronald K. Van Wert at 3151
Airway Avenue, Suite A-1, Costa Mesa.

A-3

Later in 1984, Hillcrest filed a certificate of limited
partnership listing its La Jolla Drive address; again,
acknowledgment was to be sent to Van Wert at his Airway
Drive address.

In 1988. Hillcrest filed an amendment to its certificate
of limited partnership. The amendment listed Hillcrest's address
as 15707 Rockfield Boulevard, #215, Irvine; it listed Salata as
its general partner, at the Rockfield Boulevard address; and it
indicated acknowledgment was to be sent to Van Wert, at 1301
Dove Street, 10th Floor, Newport Beach. Also in 1988,
Hillcrest recorded a deed affecting the property; the deed gave
the Rockfield Boulevard address.

In 1989, Salata notified the tax collector that Hillcrest's
address had changed to 3100 Airway Avenue, # 124, in Costa
Mesa. This became its address of record on the tax roll.

Some time in 1993, Hillcrest moved to 3723 Birch
Street. #11, Newport Beach. It did not notify the tax collector
of this change of address. However, it did file a change of
address with the post office. It also filed a fictitious business
name statement listing this address and listing Salata as general
partner, with his home address. The fictitious business name
statement was, as required, filed in Orange County, where
Hillcrest's principal place of business was located. (See Bus. &
Prof. Code, § 17915.)

On February 8, 1996, the tax collector sent "Notices of
Sale" (Rev. & Tax. Code, § 3701) to Hillcrest, by certified
mail. addressed to each of its pre-1993 addresses: La Jolla
Drive. Rockfield Boulevard, and Airway Avenue. They were
all returned as undeliverable.

Before sending the notices, the tax collector tried,
without success, to find Hillcrest's address using Riverside
County and DMV records and the Riverside and Orange County
telephone directories. It could have found Hillcrest, however,

A-4

by checking the Orange County fictitious business name filings.
It could have found Salata through DMV records and the
Orange County telephone directory. It could have found Van
Wert at his Dove Street address, which was listed in Hillcrest's
amended certificate of limited partnership, and through the
Orange County telephone directory.

On March 26, 1996, the tax collector sold the property
at auction to N.R.L.L., Inc. (NRLL). NRLL paid $162,000 for
it; it was worth over $1 million. On April 24, 1996, the tax
deeds to NRLL were recorded. NRLL later conveyed the
property to SPAN, L.L.C. (SPAN). Hillcrest continued to pay
for utilities for the property.

On July 19, 1996, Nelson-Brown Equities, Inc. (Nelson-
Brown), an asset search company, notified Hillcrest that it
appeared to be entitled to unclaimed assets worth approximately
$83,000. Nelson-Brown would not disclose the nature or source
of the assets unless Hillcrest entered into a fee agreement.

Salata discussed the matter with Van Wert, who was
Hillcrest's attorney. Based on his own knowledge of Hillcrest's
development activities, Salata believed one possible source of
unclaimed funds was Riverside County (County). At Salata's
request, Van Wert contacted the County and asked if it owed
Hillcrest any money. County representatives responded that it
did not owe Hillcrest any money.

Because Hillcrest was unable to identify the source of
the funds on its own, it entered into a fee agreement with
Nelson-Brown. In a letter dated October 15, 1996) Nelson-
Brown disclosed to Hillcrest that: "The holder of the unclaimed
funds is the County of Riverside. The form is in excess
proceeds from the sale of [assessor's parcel numbers of the
property]."

On November 7, 1996, Salata signed documents
authorizing Nelson-Brown to act as Hillcrest's agent in

A-5

submitting a claim for the excess proceeds. These documents
stated: "I, the undersigned, do hereby make Nelson-Brown
Equities, Inc. my agent to apply for and collect the excess
proceeds which you are holding and to which I am entitled from
the sale of assessment number [assessor's parcel numbers of the
property] sold at public auction. . . ." On December 18, 1996 (as
to one parcel), and March 12, 1997 (as to the other), Nelson-
Brown submitted Hillcrest's excess proceeds claim to the tax
collector. (See Rev. & Tax. Code, § 4675.)

In September 1997, Salata saw a "for sale" sign on the
property. He called the phone number listed on the sign and
was told the property had been sold for taxes.

On October 14, 1997, Hillcrest filed this action.

On November 18, 1997, the County paid Hillcrest's
excess proceeds claim.

II.
PROCEDURAL BACKGROUND

Hillcrest filed this action against the County, the tax
collector, NRLL and SPAN.' Hillcrest alleged three causes of
action: (1) to quiet title and to cancel the tax deed, against all
defendants, (2) for civil rights violations (42 U.S.C. § 1983),
against the County and the tax collector, and (3) for declaratory
relief, against all defendants.

Defendants filed answers asserting various affirmative
defenses, including that the action was barred by Revenue and
Taxation Code section 3725.

On a date not reflected in the record, NRLL and SPAN
filed a cross-complaint. On March 6, 1998, they filed a first
amended cross-complaint against Hillcrest and Salata.

On May 28, 1998, the County and the tax collector filed
a motion for summary judgment. Subsequently, NRLL and

A-6

SPAN were deemed to have joined in the motion. Defendants
argued (1) the action was barred by Revenue and Taxation Code
section 3725, and (2) the tax collector had complied with all
statutory notice requirements.

On August 4, 1998, the trial court granted the motion on
the ground that the action was barred by Revenue and Taxation
Code section 3725 and dismissed the complaint.

On September 10, 1998, Hillcrest filed a timely notice
of appeal.

On October 13, 1998, NRLL and SPAN dismissed their
cross-complaint without prejudice.’

Ill
APPEALABILITY

We perceive a preliminary issue regarding appealability.

The judgment finally resolved all issues as between.
Hillcrest on the one hand and the County and the tax collector
on the other hand. To that extent, it is clearly appealable.
(Hydrotech Systems, Ltd v. Oasis Waterpark (1991) 52 Cal.3d
988, 993, fn. 3; Justus v. Atchison (1977) 19 Cal.3d 564, 568,
disapproved on other grounds in Ochoa v. Superior Court
(1985) 39 Cal.3d 159, 171; Buckaloo v. Johnson (1975) 14
Cal.3 d 815, 821, fn. 3, disapproved on other grounds in Della
Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th
376, 393, fn. 5.)

What is unclear is whether NRLL and SPAN are proper
parties to the appeal. When Hillcrest filed its notice of appeal,
their cross-complaint was still pending. Accordingly, as to
them, the judgment was not final. (American Alternative Energy
Partners Il v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 557;
G.E. Hetrick & Associates, Inc. v. Summit Construction &

A-7

Maintenance Co. (1992) 11 Cal.App.4th 318, 325; Holt v. Booth
(1991) 1 Cal.App.4th 1074, 1081.)

Later, NRLL and SPAN dismissed their cross-complaint
without prejudice. Even assuming a subsequent dismissal can
legitimate a previously filed appeal under other circumstances
(but see Cal. Rules of Court, rule 2(c)), we question whether a
dismissal without prejudice can do so. (See Tudor Ranches, Inc.
v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1429;
Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 442-445; cf
Roy Brothers Drilling Co. v. Jones ( 1981) 123 Cal.App.3d 175,
180.)

Nevertheless, the issues on which we ultimately resolve
this appeal are essentially identical with respect to all
defendants. Resolving them solely with respect to the County
and the tax collector, while dismissing the appeal with respect
to NRLL and SPAN, “would result in the fragmentation and
multiplicity of appeals which the one final judgment rule seeks
to avoid.” (GE. Hetrick & Associates, Inc. v. Summit
Construction & Maintenance Co., supra, \\ Cal.App.4th at p.
326, fn. 5.) Under these circumstances, we may decide the
issues with respect to all parties. (/d., at pp. 325-326 and 326,
fn. 5: see also Homestead Savings v. Darmiento (1991) 23 0
Cal.App. 3d 424, 430, fn. 5.)

IV
CAUSES OF ACTION TO INVALIDATE THE TAX SALE

A. The Applicable Statute of Limitations.

Chapter 7 of the Revenue and Tax Code (Rev. & Tax.
Code, §§ 3691-3731.1) prescribes the procedures for the sale of
tax-defaulted property to private parties. Tax defaulted property
cannot be sold until it has remained in default for at least five

A-8

years. (Rev. & Tax. Code, § 3691, subd. (a)(1); see also Rev. &
Tax. Code, § 3361.) Throughout these five years, and up until
the property is sold, the owner has the right to redeem it by
paying the delinquent taxes, plus interest, costs and fees. (Rev.
& Tax. Code, §§ 3707, subds. (a), (d), 4101, 4102, 4103.)

Revenue and Taxation Code section 3701 requires the
tax collector to “send notice of the proposed sale by certified
mail with return receipt requested to the last known mailing
address, if available, of parties of interest... .”’ It further
requires the tax collector to “make a reasonabie effort to obtain
the name and last known mailing address of parties of interest.”
Revenue and Taxation Code section 3725, however, provides:
“A proceeding based on alleged invalidity or irregularity of any
proceedings instituted under this chapter can only be
commenced within one year after the date of execution of the
tax collector's deed.”

Hillcrest's first cause of action was to quiet title. “The
law is clear that the theory of relief underlying an action for
quiet title ... determines which statute of limitations applies.
[Citations.]” (Ankoanda v. Walker-Smith (1996) 44 Cal.App.4th
610, 615, and cases cited.) To the extent that Hillcrest's right to
quiet title turned on the invalidity or irregularity of the tax sale,
the applicable statute of limitations was Revenue and Taxation
Code section 3725.

Hillcrest's third cause of action was for declaratory
relief. A declaratory relief cause of action is governed by the
statute of limitations applicable to the analogous cause of action
for coercive relief. (Lerner v. Los Angeles City Board of
Education (1963) 59 Cal.2d 382, 389; Engstrom v. Kallins
(1996) 49 Cal.App.4th 773, 784.) Thus, once again, to the extent
the declaratory relief cause of action was based on the invalidity
or irregularity of the tax sale, it, too, was subject to Revenue and
Taxation Code section 3725.

A-9

B. Estoppel to Assert the Statute of Limitations.

Revenue and Taxation Code section 3725 had run before
Hillcrest brought suit. Indeed, Hillcrest does not argue
otherwise. It does contend, however, there was a triable issue
of fact with respect to whether defendants were estopped from
invoking the statute of limitations. As a basis for estoppel,
Hillcrest relies on the alleged fact that the tax collector failed to
give it due notice, together with the fact that, when it asked the
County if it was owed any money, the County said no. The
County and the tax collector fail to respond to this contention.
(NRLL and SPAN merely respond that any estoppel runs
against the County, not against them.) We do not take this as a
concession that it has merit, however, because it does not.

It seems clear that failure to give notice of a tax sale
does not give rise to an estoppel. ( Union Paving Co. v. East Del
Paso Heights (1963) 217 Cal.App.2d 772, 776777, see also
Howard v. State of California (1963) 216 Cal.App.2d 281, 284-
286.) "If an estoppel could be raised when the assertion is made
that notice was not given, then the question could be presented
in nearly every case where an irregularity occurred." (Union
Paving Co. v. East Del Paso Heights, supra, at p. 777.)
Numerous cases have held a challenge to a tax sale based on
lack of notice may be barred by the statute of limitations. (E.g.,
Kaufman v. Gross & Co. (1979) 23 Cal.3d 750, 757-760; Elbert,
Ltd. v. Gross (1953) 41 Cal.2d 322, 328-332; Tannhauser v.
Adams (1947) 31 Cal.2d 169, 173-177; Howard v. State of
California, supra, 216 Cal.App.2d at pp. 284-286.) While these
cases did not address estoppel in so many words, they
necessarily imply that estoppel is not available based on lack of
notice. (Union Paving Co. v. East Del Paso Heights, supra, at
p. 777.)

A-10

This appears to be a particular application of the more
general principle that “estoppel will not be applied against the
government if to do so would nullify a strong rule of policy
adopted for the benefit of the public. [Citations.]" (Lusardi
Construction Co. v. Aubry (1992) 1 Cal.4th 976, 994-995.) In
tax deed cases, the statute of limitations serves the important
public purposes of ensuring stability of title and protecting
finality in tax proceedings. (See Sears v. County of Calaveras
(1955) 45 Cal.2d 518, 521-522; Howard v. State of California,
supra, 216 Cal.App.2d at pp. 285-286.) Any resulting unfairness
to the plaintiff is insufficient to outweigh these public purposes.
"There is ... the unquestioned tax debt to justify the taking, and,
in addition, the taxpayer is permitted at least six years within
which to redeem or attack any supposed irregularity in the tax
proceedings. Such period is a most reasonable allowance for the
cure of the laxity of tax delinquency." (Howard v. State of
California, supra, at p. 286.) For these reasons, we conclude
that neither the County's failure to give notice nor its affirmative
misrepresentation that it did not owe Hillcrest any money will
estop it from invoking the statute of limitations.

Alternatively, even assuming the County could be
estopped, we do not believe Hillcrest has raised a triable issue
of fact with respect to estoppel. Estoppel is sometimes likened
to equitable tolling. It differs, however, in that it does not
literally toll the limitations period. That is, the time during
which an estoppel is in effect is not simply subtracted from the
total limitations period. The ultimate issue is whether the
plaintiff failed to file within the limitations period due to
reliance on the defendant's conduct. Accordingly, "[i]f there is
still ample time to institute the action within the statutory period
after the circumstances inducing delay have ceased to operate,
the plaintiff who failed to do so cannot claim an estoppel.
[Citations.]" (Lobrovich v. Georgison (1956) 144 Cal.App.2d

A-11

567. 573-574.) "[W]hen a substantial period for instituting
proceedings supervened after expiration of the delay engendered
by a party ... his conduct or representations will not estop him
from asserting the bar of the statue... .” (Industrial Indem.
Co. v. Ind. Acc. Com. (1953) 115 Cal.App.2d 684, 690; accord,
John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438,
446. and cases cited; Santee v. Santa Clara County Office of
Education (1990) 220 Cal.App.3d 702, 716.)

In the Santee case, for example, the plaintiffs failed to
present a timely governmental tort claim; they did present a
timely late-claim application, but to the wrong public entity.
That entity purported to grant the late-claim application and to
deny the claim. (Santee v. Santa Clara County Office of
Education, supra, 220 Cal.App.3d at p. 709.) On appeal, the
plaintiffs argued this excused their failure to present a timely
late-claim application to the correct public entity. The appellate
court treated this as an estoppel argument. It held that, when the
plaintiffs learned of their mistake, " [they] still had two months
in which to submit a late-claim application to [the defendant]
before the one-year jurisdictional limit expired. Their failure to
do so precludes reliance on an estoppel." (/d., at p. 716.)

Assuming, without deciding, a jury could find Hillcrest
initially failed to file suit in reliance on defendants’ conduct, any
such reliance had clearly ended long before the end of the
limitations period. On October 15, 1996, Nelson-Brown
advised Hillcrest that the County was holding $83,000 in excess
proceeds from the sale of its property. Moreover, on November
7, 1996, Salata signed documents authorizing Nelson-Brown to
claim the excess proceeds from the sale of the property at public
auction. Even at the latter point Hillcrest still had five-and-a-
half months in which it could have filed a timely suit. It cannot
claim it was still relying on any conduct of defendants.

A-12

Hillcrest, attempting to raise a triable issue of fact,
submits Salata's testimony that: "I had no understanding of the
meaning of 'excess proceeds’, and I was told and understood that
there may not be any moneys due Hillcrest. If there was, I did
not believe that it had anything to do with the tax sale of the
[p]roperty because when | discovered the ‘for sale’ sign in
September of 199[7], we immediately found out about the tax
sale... ." Even accepting Salata's claim that he "did not believe
[the money] had anything to do with the tax sale," he never
plainly testifies he did not know there had been a tax sale. But
more important he never claims Hillcrest did not know there
had been a tax sale. When Salata appointed Nelson-Brown as
Hillcrest's agent, Hillcrest was deemed to know what Nelson-
Brown knew. Thus, from that point on, Hillcrest was
chargeable with knowledge of the tax sale. (Civ. Code, § 2332;
Chaplis v. County of Monterey (1979) 97 Cal.App.3d 249, 262
[agents' knowledge, imputed to principal, defeats estoppel].)

ad Exception for an Owner in Possession.

Hillcrest also argues Revenue and Taxation Code section
3725 does not apply where the asserted procedural defect is
jurisdictional and the original owner remained in possession of
the property.

"The contention that a statute limiting the time for the
commencement of an action to set aside a deed to the state for
delinquent taxes does not apply to an owner in exclusive and
undisputed possession of the property taxed, is largely based on
a rule stated to be that a general statute of limitations does not
run against such an owner to remove a cloud upon his title."
(Sears v. County of Calaveras, supra, 45 Cal.2d at p. 521.) In
delinquent tax cases, this rule has been more honored in the

A-13

breach than in the observance. Indeed, we have been unable to
find a single case in which an owner actually benefited from it.

The owner in possession rule applies only "to owners
who because of their possession could not be assumed to have
actual knowledge of claims of adverse interest by persons not in
possession.” (McCaslin v. Hamblen (1951) 37 Cal.2d 196, 199.)
When an owner owes delinquent taxes, however, "the very fact
of his delinquency operates to charge him ‘with notice that if he
claims the invalidity of a tax deed to the state or of the
proceedings leading up to it he must bring his action for that
purpose within the statutory time.’ [Citation.]" (Kaufinan v.
Gross & Co., supra, 23 Cal.3d at p. 756, quoting Sears v.
County of Calaveras, supra, 45 Cal.2d at p. 522.) "There
appears to be no reason why an owner of land, although in
exclusive and undisputed possession, should not be required to
be alert to protect his rights as against his own delinquency in
the payment of taxes." (Sears v. County of Calaveras, supra, at
pp. 521-522; accord, Edwards v. City of Santa Paula (1956) 138
Cal.App.2d 375, 378-379.)

Salata testified that, on occasion, portions of Hillcrest's
land were sold and delinquent taxes were paid out of escrow.
He also testified, or at least implied, that he was unaware there
were any delinquent taxes not paid in this way. Once again,
however, Salata never testified that Hillcrest, as an entity, was
unaware that any taxes were due. In any event, we do not
believe the applicability of the owner in possession rule turns on
whether the owner has actual knowledge of the delinquency.
Rather, an owner is deemed to have constructive knowledge.
An owner either knows or should know whether property taxes
have been paid (at least in the absence of unusual circumstances
not present here).

Hillcrest had not paid property taxes for six years.
Despite Salata's claim of ignorance, Hillcrest was chargeable

A-14

with knowledge of the delinquency. Thus, even though it was
in undisturbed possession, it knew or had reason to know that its
property could be sold for taxes. Hillcrest therefore cannot
claim the benefit of an "owner in possession" exception to
Revenue and Taxation Code section 3725.

We conclude the trial court correctly granted summary
judgment on both Hillcrest's cause of action to quiet title and its
cause of action for declaratory relief, to the extent they were
based on the invalidity or irregularity of the tax sale, on the
ground that they were barred by the statute of limitations.

Vv
SECTION 1983 CAUSES OF ACTION

A. The Applicable Statute of Limitations.

Hillcrest's second cause of action was for a deprivation
of civil rights under section 1983. Moreover, Hillcrest's first
cause of action, to quiet title, and its third cause of action, for
declaratory relief, both alleged, and were at least partially based
on, the same alleged deprivation of civil rights. To this extent,
all three causes of action were subject to the statute of
limitations applicable to a federal civil rights action.

In Wilson v. Garcia (1985) 471 U.S. 261 [105 S.Ct.
1938, 85 L.Ed.2d 254], the Supreme Court held that a section
1983 action is governed by the state statute of limitations for a
"tort action for the recovery of damages for personal injuries .
_. ." Ud., at p. 276.) In California, this is Code of Civil
Procedure section 340, subdivision (3), which provides a one-
year limitations period. (City of Huntington Park v. Superior
Court (1995) 34 Cal.App.4th 1293, 1297; Ponderosa Homes,
Inc. v. City of San Ramon (1994) 23 Cal.App. 4th 1761, 1772;
Jackson v. Cedars-Sinai Medical Center (1990) 220 Cal.App.3d

A-15

1315. 1323-1324; Newton v. County of Napa (1990) 217
Cal.App.3d 1551, 1563-1564.)

NRLL and SPAN characterize Wilson as holding that a
section 1983 cause of action is governed by the most analogous
state statute of limitations; they argue that here, Revenue and
Taxation Code section 3725 is most analogous. This grossly
misrepresents Wilson. Wilson recognized a section 1983 cause
of action "can have no precise counterpart in state law.... [A]ny
analogies to [state law] causes of action are bound to be
imperfect." (Wilson v. Garcia, supra, 471 U.S. at p. 272, fn.
omitted.) It emphasized the need for uniformity and
predictability: "[A] simple, broad characterization of all § 1983
claims best fits the statute's remedial purpose. The experience
of the courts that have predicated their choice of the correct
statute of limitations on an analysis of the particular facts of
each claim demonstrates that their approach inevitably breeds
uncertainty and time-consuming litigation that is foreign to the
central purposes of § 1983." (Id, at p. 272, fn. omitted.) It
described section 1983 as "a directive to select in each State, the
one most appropriate statute of limitations for all § 1983 claims.
The federal interests in uniformity, certainty, and the
minimization of unnecessary litigation all support the
conclusion that Congress favored this simple approach." (/d., at
p. 275.) Accordingly, Wilson did not hold the "most analogous"
state statute of limitations applies; it specifically held the state
personal injury statute of limitations applies. (/d., at pp. 276-
279.)

Although Code of Civil Procedure section 340,
subdivision (3), like Revenue and Taxation Code section 3725,
prescribes a one-year limitations period, it affords a more
generous accrual rule. "[F]ederal law governs when a cause of
action accrues and the statute of limitations begins to run in a §
1983 action. [Citation.] Under federal law, the claim generally

A-16

accrues when the plaintiff 'knows or has reason to know of the
injury which is the basis of the action.’ [Citation.]" (Cabrera v.
City of Huntington Park (9th Cir. 1998) 159 F.3d 374, 379-380,
quoting Elliott v. City of Union City (9th Cir. 1994) 25 F.3d
800, 802.)

Here, there was a triable issue of fact with respect to
when Hillcrest knew or should have known its property had
been sold for taxes. A reasonable jury could find it had no
reason to know this until it received Nelson-Brown's letter,
dated October 15, 1996, advising it that it was entitled to excess
proceeds from the County's sale of the property. A reasonable
jury could even find it had no reason to know this until
November 7, 1996, when Salata signed the forms making
Nelson-Brown Hillcrest's agent for the purpose of claiming the
excess proceeds. This action was filed on October 14, 1997 —
less than a year from both of these dates. Thus, there was at
least a triable issue of fact with respect to whether Hillcrest's
causes of action, to the extent they were based on section 1983,
were timely filed.

B. The Availability of a Section 1983 Cause of
Action to Challenge State Taxation.

The County and the tax collector contend, however, that
section 1983 does not afford a remedy in state tax cases. Asa
preliminary procedural matter, we note that they never raised
this contention in their motion for summary judgment.
Nevertheless, we have discretion to reach a pure question of law
for the first time on appeal (Waller v. Truck Ins. Exchange, Inc.
(1995) 11 Cal. 4th 1, 24; In re Marriage of Peters (1997) 52
Cal.App. 4th 1487, 1490) — even on appeal from a summary
judgment. (Cislaw v. Southland Corp. (1992) 4 Cal.App. 4th

A-17

1284. 1297.) This contention presents such a pure question of
law.

Hillcrest does not object to our reaching this contention.
To the contrary, after mentioning that it was not raised below,
Hillcrest proceeds to respond to it on the merits. Hillcrest does
not claim that, if this contention had been made below, it could
have introduced additional evidence which would have raised a
triable issue of fact on this issue. (Cf. Juge v. County of
Sacramento (1993) 12 Cal.App.4th 59, 70-71.) Thus, we believe
Hillcrest has waived any objection to our considering it.

The contention finds its source in two United States
Supreme Court cases. In the first of these, Fair Assessment in
Real Estate Assn. v. McNary (1981) 454 U. S. 100 [ 102 S.Ct.
177. 70 L.Ed.2d 271], the plaintiffs filed a section 1983 action,
alleging certain local real property reassessment practices
violated equal protection and due process. Individual plaintiffs
sought a refund and punitive damages; an organizational
plaintiff sought an award of the expenses it had incurred in
seeking more equitable assessments. (/d., at pp. 105-106.)

The Supreme Court held “taxpayers are barred by the
principle of comity from asserting § 1983 actions against the
validity of state tax systems in federal courts. Such taxpayers
must seek protection of their federal rights by state remedies,
provided of course that those remedies are plain, adequate, and
complete, and may ultimately seek review of the state decisions
in this Court. [Citations.]" (Fair Assessment in Real Estate Assn.
v. McNary, supra, 454 U.S. at p. 116, fn. omitted.)

The court began by noting that under the Tax Injunction
Act federal courts are barred. from enjoining the collection of a
state tax, at least where there is "a plain, speedy and efficient
remedy” in state court. (Fair Assessment in Real Estate Assn. v.
McNary, supra, 454 U.S. at p. 103, quoting 28 U.S. C. § 1341.)
The Tax Injunction Act, it indicated, merely reflects broader

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principles of comity. (Fair Assessment, supra, at p. 103.) As it
also noted, it had previously held, based on comity, that federal
courts "may not even render declaratory judgments as to the
constitutionality of state tax laws." (Ibid.; see also id., at pp.
110-111.)

The court concluded comity also barred an action for
damages based on the unconstitutionality of a state tax, for two
reasons. (Fair Assessment in Real Estate Assn. v. McNary,
supra, 454 U.S. at pp. 113-115.) First, "(t]he recovery of
damages under the Civil Rights Act first requires a ‘declaration’
or determination of the unconstitutionality of a state tax scheme
that would halt its operation." (/d., at p. 115.) "In effect the
district court must first enter a declaratory judgment .... We are
convinced that such a determination would be fully as ‘intrusive
as the equitable actions that are barred by principles of comity."
(/d., at p. 113, fn. omitted.) Second," . . . damages actions, no
less than actions for an injunction, would hale state officers into
federal court every time a taxpayer alleged the requisite
elements of a § 1983 claim." (/d., at p. 115.) "[S]uch officials,
faced with the prospect of personal liability to numerous
taxpayers, not to mention the assessment of attorney's fees under
42 U.S.C. § 1988, would promptly cease the conduct found to
have infringed petitioners’ constitutional rights, whether or not
those officials were acting in good faith. In short, petitioner's
action would ‘in every practical sense operate to suspend
collection of the state taxes... "' (/d., at p. 115, quoting Great
Lakes Dredge & Dock Co. v. Huffman (1943) 319 U.S. 293, 299
[63 S.Ct. 1070, 87 L.Ed. 1407}.)

Next, in National Private Truck Council, Inc. v.
Oklahoma Tax Comm'n (1995) 515 U.S. 582 [115 S.Ct. 2351,
132 L.Ed.2d 509], the plaintiffs claimed a state tax on motor
carriers violated both the commerce clause and the privileges
and immunities clause. They filed suit in state court, under both

A-19

state law and section 1983. (National Private Truck Council,
supra, at p. 584.) The state courts held the tax unconstitutional,
and awarded refunds; however, they refused to award any relief
under section 1983. (/d., at p. 585.)

The Supreme Court affirmed. It held: § 1983 does not
call for either federal or state courts to award injunctive and
declaratory relief in state tax cases when an adequate legal
remedy exists." (National Private Truck Council, Inc., v.
Oklahoma Tax Comm'n, supra, 515 U.S. at p. 589.) It explained:
"Just as Fair Assessment relied upon a background principle in
interpreting § 1983 to preclude damages actions in tax cases
brought in federal court, so we rely on the same principle in
interpreting § 1983 to provide no basis for courts to award
injunctive relief when an adequate legal remedy exists. Our
interpretation is supported not only by the background principle
of federal noninterference discussed in Fair Assessment, but
also by the principles of equitable restraint discussed at length
in that case. [Citation.] Whether a suit is brought in federal or
state court, Congress simply did not authorize the disruption of
state tax administration in this way." (Id., at p. 590.)

The only question Fair Assessment and National Private
Truck did not address directly was whether a section 1983
action challenging a state tax could be brought in state court, for
damages. In California, this question was recently resolved in
General Motors Corp. v. City and County of San Francisco
(1999) 69 Cal.App.4th 448. There, General Motors claimed a
municipal business tax violated the commerce clause by
discriminating in favor of local manufacturers. It sued for a
refund under both state law and section 1983. (General Motors
Corp., supra, at p. 451.) On appeal, the court held the tax was
indeed unconstitutional (id., at pp. 452-454), and therefore,
General Motors was entitled to a refund. (Id., at pp. 454-456.)
It also held, however: "A citizen, like General Motors, may not

A-20

maintain a section 1983 action challenging municipal taxation
when an adequate state remedy exists." (/d., at p. 460.) After
discussing Fair Assessment and National Private Truck, it
stated: "The conclusion drawn when these two cases are jointly
considered is inescapable: section 1983 actions challenging state
taxation are barred, whether the actions seek damages or
equitable relief, and whether brought in federal or state court,
provided an adequate state remedy exists." (General Motors
Corp., supra, at p. 460.) It concluded General Motors was not
entitled to attorney's fees under section 1983. (General Motors
Corp., supra, at pp. 456-461.)

"Other state courts have likewise barred section 1983
damages claims challenging local taxes where an adequate state
remedy exists. (Citations. }" (General Motors Corp. v. City and
County of San Francisco, supra, 69 Cal.App.4th at p. 460, and
cases cited: see also Kerr v. Waddell (1996) 185 Ariz. 457, 463-
464 [916 P.2d 1173]; State v. Golden's Concrete Co. (Colo.
1998) 962 P. 2d 919, 925; New England Legal Foundation v.
City of Boston (1996) 423 Mass. 602, 614 [670 N.E.2d 152].)

Hillcrest's only response is that it is not seeking to enjoin
or prevent the collection of any tax. Fair Assessment, however,
held the comity principle applies to section 1983 actions for
damages. Here, if Hillcrest could invalidate the tax sale, the
County would have to refund the sale price to NRLL and/or
SPAN. The sale price, however, minus the excess proceeds
which the County has already refunded to Hillcrest,’ represent
the taxes due. In essence, then, Hillcrest is seeking a refund,
just like the plaintiffs in Fair Assessment and General Motors.

Hillcrest is not merely challenging a single isolated
instance of alleged failure to give notice. In order to prevail on
its section 1983 claim, Hillcrest would have to prove the tax
collector had an official policy or custom of failure to give
notice. (Sinclair & Valentine Co. v. County of Los Angeles

A-21

(1988) 201 Cal.App.3d 1021, 1027-1028; see generally Monell
v. New York City Dept. of Social Services (1978) 436 U.S. 658
[98 S. Ct. 2018, 56 L.Ed.2d 61 1].) Thus, Hillcrest is effectively
seeking a declaration regarding the constitutionality of a state
tax scheme. Moreover, such a declaration would have ihe same
potential for a chilling effect on state tax administration that was
a motivating concern in Fair Assessment. Hillcrest's section
1983 cause of action therefore presents all the vices that led the
court in Fair Assessment to bar actions for damages.

Hillcrest does not argue it had no adequate legal remedy
under state law. We believe an action for a refund under state
law is precisely such an adequate remedy. Hillcrest's own
failure to bring a refund action before the statute of limitations
supervened does not render that remedy inadequate. (Burris v.
City of Little Rock (8th Cir. 1991) 941 F. 2d 717, 721, fn. 4;
Aluminum Company of America v. Department of the Treasury
of the State of Michigan (6th Cir. 1975) 522 F.2d 1120, 1123-
1125; Henry v. Metropolitan Dade County (Sth Cir. 1964) 329
F.2d 780, 781; see also Fair Assessment in Real Estate Assn. v.
McNary, supra, 454 U.S. at p. 116, fn. 8 ["no significant
difference" between adequacy of state remedy for purposes of
comity and adequacy of state remedy for purposes of Tax
Injunction Act].) This is not a case in which the taxpayer, due to
lack of notice, had no way of bringing a refund action before the
expiration of the limitations period. Hillcrest had notice of the
tax sale more than five months before the end of the limitations
period. Thus, we need not consider whether in such a case a
state refund action would be an adequate remedy.

We conclude Hillcrest could not state a claim under
section 1983. Accordingly, the trial court properly granted
summary judgment on all of Hillcrest's causes of action to the
extent that they were based on an alleged deprivation of civil
rights.

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VI
~ DISPOSITION

The judgment is affirmed. Defendants shal! recover
costs against Hillcrest.

NOT TO BE PUBLISHED
/s/ Richii
We concur:
/s/ McKinster
Acting P. J.

/s/ Ward

FILED
AUG 04 1998

Superior/Municipal Court
of Riverside County

WILLIAM C. KATZENSTEIN (61681)
County Counsel

WILLIAM D. KENISON (103329)
Deputy County Counsel

3535 Tenth Street, Suite 300

Riverside, CA 92501-3674

Telephone: (909) 955-6300

Attorneys for Defendants County of
Riverside and Riverside County
Treasurer-Tax Collector, R. Wayne Watts
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF RIVERSIDE

HILLCREST DEVELOPMENT, _ ) Case No. 303035
a California Limited Partnership, )

) ORDER GRANTING
Plaintiff, ) MOTION FOR
) SUMMARY
v. ) JUDGMENT AND
) JUDGMENT OF
COUNTY OF RIVERSIDE, ) DISMISSAL
a Public Entity; R. WAYNE )
WATTS, Treasurer-Tax )

A-24

Collector of the County of
Riverside; N.R.L.L., INC.,

a California Corporation;
SPAN, L.L.C., a Limited
Liability Company; and all
persons claiming by, through
or under such person, and all
persons unknown, claiming
any legal or equitable right,
title, estate, lien, or interest
in the property described in
the complaint adverse to
plaintiff's title, or any cloud
on plaintiff's title thereto,
named as DOES 1-20, inclusive,

Defendants.

N.R.L.L., INC. a California

corporation,
Cross-Complainant,
v.
HILLCREST DEVELOPMENT,

a California Limited Partnership:
PAUL SALATA, general partner
of HILLCREST DEVELOPMENT;
ali persons unknown claiming any
legal or equitable right, title, estate,
lien, or interest in the real property

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

A-25

described in the cross-complaint
adverse to cross-complainant's
ownership or any cloud on cross-
complainant's title thereto; and,
DOES 1 through 200, inclusive,

Cross-Defendants.

The motion of Defendants, County of Riverside and R.
Wayne Watts, Tax Collector, for summary judgment, and the
joinder in such motion of Defendants N.R.L.L. and Span, Lis
came on regularly for hearing before this Court in Department
8. the Honorable Richard G. Van Frank, Judge Presiding.
Ronald K. Van Wert appeared as attorney for Plaintiff, Hillcrest
Development; James J. Manning, Jr. appeared as attorney for
Defendants and Cross-Complainants, N.R.L.L., Inc. and Span,
LLC: and William D. Kenison appeared for Defendants and
moving parties, County of Riverside and R. Wayne Watts, Tax
Collector.

After full consideration of the evidence set forth in the
papers submitted, the Court finds that Plaintiff's Complaint to
Quiet Title, Cancel Tax Deeds, Deprivation of Rights,
Privileges or Immunities Secured by the Constitution, and
Declaratory Relief, is barred as a matter of law by Section 3725
of the California Revenue and Taxation Code in that the action
was not filed within one year after the execution of the tax deeds
by Tax Collector. The Court's determination is set forth in the
court reporter's record of the hearing on the motion, as required
by Code of Civil Procedure section 437c(g).

THEREFORE, IT IS ORDERED, ADJUDGED, AND
DECREED that the motion for summary judgment is
GRANTED and that this judgment of dismissal of the complaint

A-26

shall be entered forthwith against Plaintiff, Hillcrest
Development, a California Limited Partnership, which shall
recover nothing from defendants. The cross-complaint is hereby
severed.

Dated: AUG 04 1998 Ls/
Richard G. Van Frank
Judge of the Superior Court

APPROVED AS TO FORM:
LAW OFFICES OF
RONALD K. VAN WERT

Dated: July 17, 1998 By:/s/
Ronald K. Van Wert for
° Plaintiff, Hillcrest
Development, a
California Limited
Partnership

REID & HELLYER
a PROFESSIONAL
CORPORATION

Dated: July 20, 1998 By:4s/
James J. Manning, Jr.
Attorneys for
Defendants/Cross-
Complainants N.R.L.L.,
Inc., and SPAN, LLC

A-27

}

FILED
FEB -2 2000

Frederick K. Ohlrich Clerk
Deputy

Fourth Appellate District, Division Two, No. E023512
S$084297

IN THE SUPREME COURT OF CALIFORNIA
EN BANC

HILLCREST DEVELOPMENT, Appellant
v.

COUNTY OF RIVERSIDE Et Al., Respondents

Appellant's petition for review DENIED.

/s/ CHIN
Acting Chief Justice

A-28

l. The complaint also named Land Disposition Company
as a defendant. Apparently this is a fictitious business name
used by NRLL, rather than a separate entity.

2. We hereby grant NRLL and SPAN's request for
judicial notice of their request for
dismissal.

3. “Parties of interest” are defined as “any person with
title of record to all or any portion of the property,” together
with all “lienholders of record.” (Rev. & Tax Code, § 4675.)

4 We note — but need not resolve — the lurking
question of whether Hillcrest lost whatever rights to
invalidate the sale it may have had by claiming and accepting
the excess proceeds

A-29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0932%3A1. Public record. Not legal advice.